The coronavirus pandemic has affected a lot of citizens: migrant workers, laborers, corporate job-holders and many more. However, what does it entail for the transgender community? There is a heightened responsibility on the government to grapple this issue where millions are affected. While the new labor laws are the talk of the town, the issue surrounding the plight of transgender persons remains under-the-cover.

The transgender community has been marginalized throughout, and the pandemic further adds salt on their wounds. It further puts the transgender community in a spot where they are visible, but nothing is done to redress their issues. There’s an adverse risk to transgender people which is much more than other citizens.

First of all, they are prone to desertion from their scarce source of livelihood. A majority of them are locked in the confines of their “home” which houses no basic necessities or flow of revenue-generation. The “Hijra” Community (another name for the trans community) is a culturally unique group, consisting of assorted gender-identities. They are usually the ones that “bless a new-born/newly-wed couple” and give their special appearance in religious ceremonies. Their other alternative employment opportunities include begging, dancing and illicit prostitution.

Secondly, they have lesser access to medical facilities. While the country is struggling to get its public health management on board, only the privileged are able to access healthcare facilities amidst this global pandemic. The transgender community faces susceptibility to infections, weaker immune-systems and lack of insurance, these factors further add onto their woes. Their testing for coronavirus seems distant as of now. A majority of them worry that those of them who are suffering from HIV may not get access to hormone therapy, or access to sex-reassignment surgery.

Thirdly, they are caught in the cycle of structural discrimination, exclusion and violence. The rise in hate crimes has severely impacted the transgender community also. Since, they can be viewed as potential bearers of the virus, stigma and transphobia has taken an upward surge. It is not untrue to say that they are not new to the practice of “social distancing.” As a community, they have been rather distant from mainstream society. Hate-mongering has been prevalent in these recent-times, and this has led to the eviction of transgender persons from their rented residences.

Relief measures are undertaken by the respective state governments, and the union also. However, since the measures are very much accountable as a majoritarian scheme, the minorities are still lurking within the periphery.

A large number of transgender-persons don’t even possess basic documentation such as an Aadhar Card, Voter ID or birth certificate. Therefore, they remain outside the scope of normal government social security schemes such as pension and rations. The government’s COVID-19 scheme also does not identify the needs of the transgender community. Many state governments haven’t even tried to address their requirements as basic human-beings. Despite all this, the transgender community has been reported to have extended relief to the members of their neighborhoods, while their future appears to be in darkness.

The government issued an appraisal termed as the Draft Rules on the Transgender Persons (Protection of Rights) Act. It was released on 18th April, amidst the community struggling for bread and butter. These rules are an “initiative” to tackle the heavy criticism to the Transgender Persons (Protection of Rights) Act which was enacted in 2019. The comments/suggestions were invited until 18th May, which was still under the lockdown period.

The underlying flaw remains very much intact, despite the protests. The rules fail to derive the right to self-identification/right to self-determination as affirmed in the NALSA judgment by the Supreme Court. Also, the rules violate trans persons’ freedom of residence, doesn’t touch upon the criminalization of sex work provisions, and doesn’t address the structural barriers to healthcare. Such legislation clearly needs active participation, representation and deliberation from the side of trans, non-binary, gender-fluid citizens of the country.

There is already a persistent need to create more inclusive spaces in the healthcare system that are free from all sorts of discrimination, prejudice and institutional bias. We cannot always rely upon the activists, humanitarians and human rights organizations to perform the state’s obligation towards their citizens. The state will have to step up to perform its fundamental duty to recognize its minorities’ in question.

Another recommendation would be to knock on the Supreme Court’s door, to re-affirm the right of self-identification and re-address the flaws present in the legislation. However, the process itself can be long-drawn and draining in terms of resources, energy and motivation. It is uncertain that the government will pay heed to the pleas of the activists. In such a scenario, the apex court will again have to intervene to safeguard the interests of the community. Drawing a parallel to the recent wave of progressive judgments, it would be safe to say that the judiciary has supported the fundamental rights of the LGBTQ+ communities in general.

It is crucial to point out that such a long-drawn process is likely to be given due consideration to institutionalize the basic right of human dignity, rather than the promotion of a culture that reinforces human civility. The dire need for equality hasn’t ever been this illustrious.

For more on COVID-19, see our special coverage.

Sonal Rawat is a second-year law student at the National Law University, Delhi, India. Sonal is inclined towards international human rights, gender studies, and discrimination law.

Suggested citation: Sonal Rawat, COVID-19 and the Transgender Community in India, JURIST – Student Commentary, June 5, 2020, https://www.jurist.org/commentary/2020/06/sonal-rawat-trans-rights-covid19/.

This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at commentary@jurist.org