Tamil Nadu's TRANSformative Justice

Born and raised in Tamil Nadu, Living Smile Vidya is a transwoman who faced significant hardships that compelled her to seek asylum in Switzerland. She proudly claims credit for being a pioneer in advocating for changes that have made Tamil Nadu a model state for queer-friendly policies. “A few of us initiated the policy changes that are celebrated today. I was one of the first to undergo a sex reassignment surgery (SRS), which was an unpleasant experience and required corrective surgery. I was a guinea pig, but things have improved significantly,” recalls Vidya, reflecting on the challenges faced by transgender individuals of her time who bravely raised their voices when such advocacy was rare.

In terms of queer rights, Tamil Nadu is a pioneering state which introduced progressive policies and supportive legal frameworks. The state established the Transgender Welfare Board in 2008 that introduced transgender policies to provide healthcare, education and employment opportunities for transgender individuals. The state government also introduced a scheme for free SRS, a ground-breaking step towards allowing individuals to achieve their chosen gender identity. Additionally, Tamil Nadu was the first state to issue a government order recognising transgender individuals’ right to self-identify their gender. The state’s efforts in sensitising law enforcement agencies, promoting gender-neutral education, and ensuring social inclusion through various welfare schemes have significantly contributed to its reputation as a leader in queer rights. Moreover, Tamil Nadu banned sex-selective surgeries in 2019, the first such ban in Asia.

Tamil Nadu’s history of leading the country in queer rights advocacy began in the early 2000s, well before the establishment of the State Transgender Board in 2008. Former Chief Election Commissioner T N Seshan took the historic step of granting voting rights to transgender people in India, and Tamil Nadu was the first state to respond. In 2004, A Rajini, a lawyer from Madurai, and Priya Babu, a transgender activist, filed a public interest litigation in the Madurai bench of the Madras High Court seeking voter identity cards for transgender persons. The court asked the government to undertake a census of transgender individuals and provide voter identity cards.

“The HIV prevention programme that gained momentum in the late 1990s was the beginning of Tamil Nadu’s move towards recognising transgender rights. Though such programmes existed elsewhere, Tamil Nadu advanced these efforts, eventually leading to the formation of the Trans­gender Board and the Transgender welfare policy,” says Vidya.

A study by the World Health Organization (WHO) in 1991/92 in Chennai revealed that men who have sex with men and transgender people were at a high risk of contracting HIV. This prompted NGOs to initiate HIV programmes for the vulnerable groups, including transgender sex workers. The Tamil Nadu Aravanigal (The Tamil word for transwomen) Association in Chennai became the first community organisation to receive government funding for HIV intervention in 2001. The government’s initiative to address the sexual exploitation of women and children also acknowledged the social marginalisation of the transgender community. In contrast, most other states in India focused on sex workers in general, neglecting the transgender community in HIV prevention activities.

While transgender individuals were often seen as sex workers and beggars in the rest of the country, Tamil Nadu organised computer training for them in 2004. Special housing schemes for transgender people were also announced. Tamil Nadu’s political parties supported transgender rights; in the 2006 state assembly election, the DMK promised to protect transgender rights in its manifesto.

India celebrated the historic partial repeal of Section 377, which criminalised same-sex activity, only after the Supreme Court judgement in 2018. But way back in 2006, the transgender community members in Tamil Nadu staged a protest march to the legislative assembly asserting transgender rights, including the demand to repeal Section 377. They submitted a memorandum to the government which later led to the formation of the state’s transgender policy, the first of its kind in India. The Transgender Welfare Board of Tamil Nadu introduced numerous welfare measures for the community. These include self-employment grants, short stay homes, distribution of ration cards, free SRS in government hospitals, health insurance, and reservations in educational institutions.

The SRS was a key component of the 2008 Transgender Welfare Policy. While this expensive procedure was mostly limited to private hospitals in the rest of the country, Tamil Nadu offered it free of cost in government hospitals. Procedures such as emasculation, vaginoplasty, labiaplasty, and breast augmentation were initially provided at the Government Kilpauk Medical College and the Madras Medical College, later expanding to other hospitals.

However, the community members were initially hesitant to rely on government hospitals, despite the procedures being free. Many preferred private hospitals in cities like Mumbai and Bengaluru, as they did not trust government hospitals, and there was also a lack of awareness about the importance of therapy, which often takes three to six months, contributing to the reluctance. “Some people wanted to avoid the long process. Private hospitals provide flexibility in the duration of the procedure,” says Anitha Jaya, a Madurai based transwoman who underwent SRS in 2012.

In yet another pioneering move, harassing transgender individuals by cops was made punishable in Tamil Nadu. A government order in January 2022 amended the Tamil Nadu Subordinate Police Officers’ Conduct Rules, 1964, adding a rule that makes police officers harassing LGBTQIA+ persons punishable. This was in response to a 2021 Madras High Court order which issued guidelines to protect transgender persons’ civil rights, leading to the amendment of the Police Officers’ Conduct Rules.

The judiciary in Tamil Nadu has been instrumental in est­ablishing the state as a model for queer rights. In addition to landmark rulings as granting voter ID cards, the Madras High Court has issued several judgments that have led to significant policy changes and societal empowerment for the community.

In 2013, Swapna, a transwoman and a graduate in Tamil language, challenged the denial of permission for trans persons to write Public Service Commission exams. The Madras High Court ruled in her favour, directing the state government to allow transgender individuals to sit for these exams. In 2017, a transman who underwent the SRS was denied approval to change his gender on certificates. The High Court intervened, ordering the government to facilitate the change.

Though the Supreme Court is yet to approve same-sex marriages, the Tamil Nadu High Court ruled in 2019 that a transgender woman be recognised as a bride under the Hindu Marriage Act. This landmark judgement came due to a petition filed by a man and a transwoman whose marriage registration was refused. The court directed authorities to solemnise their marriage.

In another significant ruling in 2021, the Madras High Court banned ‘conversion therapy’, which attempts to change the sexual orientation of queer individuals. The same year, the court held that transgender persons are entitled to reservation under the ‘third gender’ category for admission to nursing schools. In January 2024, the court imposed a Rs 50 lakh fine on a YouTuber for shaming a transgender person, emphasising respect and dignity for the community. Recently, the court directed the government to establish separate norms for transgender persons in education and employment, acknowledging their long-standing demand for horizontal reservation.

In a recent policy draft, the government has proposed to constitute a Statutory State Commission for gender and sexual minorities. Once this policy is finalised and the commission is established, Tamil Nadu would once again set a new record of being the first state to constitute such a commission. Tamil Nadu has always shown the way when it comes to queer rights. It is time for other states to take up the cause.

(This appeared in the print as 'TRANSformative Justice')