When It Comes To Trans Rights, India Just Did What The USA Refused To

On April 3, the Ministry of Drinking Water and Sanitation issued a circular notifying all states to ensure that people recognised by the government as ‘third gender’ have access to public and community bathrooms of their choice. The move is a welcome one, but to what extent will it protect trans people in India?

It has been reported that the two places where trans people are most vulnerable to attacks are in parks and bathrooms. So the sanitation ministry’s circular is an attempt to help mainstream the trans community, and seems far more helpful than earmarking toilets for trans people – as was done in Tamil Nadu and West Bengal.

Toilet access is one of the biggest issues regarding sanitation in India. In 2015, WaterAid found that an overwhelming majority of Indians (60.4%) did not have a safe and clean toilet to use. This has led India to be the worst offender when it comes to open defecation, far exceeding a number of countries in South and South East Asia.

Since 2014, the Swacch Bharat Mission has tried taking up the issue, but it has staggered under the weight of its own blunders. For example, toilets in Madhya Pradesh, Jharkhand, and Jammu & Kashmir were built without drainage!

As of this year, the ministry, at least, has been trying to shine a light on toilet access and its related concerns, such as how toilet access is directly linked to personal safety. Just last month, the ministry had released a set of guidelines on gender issues in sanitation, taking into account issues of sexual harassment, and menstrual hygiene.

And now, with this fresh circular, India can even claim to have taken the step that so many places in the USA refused to.

Discriminatory bills in states like Texas and North Carolina sought to prohibit trans persons in America from entering public restrooms that did not align with the gender on their birth certificate. These ‘bathroom bills’ were transphobic, to say the least, and played on people’s fears about those ‘pretending’ to be trans for the sole purpose of sexually assaulting girls and women in restrooms.

Indian transgenders
For representation only.

In contrast, the Indian ministry’s decision to grant toilet access to ‘the third gender’ certainly looks progressive. But there are some glaring issues with it too.

The Transgender Persons (Protection of Rights) Bill, 2016 does a pretty bad job of defining “transgender person”, but it’s the only official definition in place right now.

Even if a trans person were to accept that flawed definition, they would be subject to an elaborate certification process before they can openly identify as trans. Keeping this in mind, it is unclear how state governments will secure toilet access for trans people, and also address the concerns people have (as they do in the USA) about those who will take advantage of the set-up to commit sexual crimes.

This incongruity alone is enough to ensure that trans people in India will continue to face harassment and abuse.

The circular is definitely a positive step, but there is a long way to go where trans rights are concerned. It remains to be seen whether the ministry will provide supporting measures to make toilets accessible to trans people in real life, and not just on paper.