Delhi High Court’s warning to intolerant families

From coercion to violence, the family isn’t always the natural harbor for LGBT persons, as the verdict on Shivy, a transman, indicates


Shivy had to face mental and physical violence from his mother, who didn’t accept his gender identity as a transmasculine person.
Shivy had to face mental and physical violence from his mother, who didn’t accept his gender identity as a transmasculine person.

This is personal. This is about family and the threat it poses to an individual’s dignity, selfhood and personal autonomy.

On Monday, the Delhi High Court passed a landmark verdict to protect the rights of an 18-year-old transman Shivy, who had moved the court last month to receive protection from his parents, and retrieve his passport and green card from his mother, who had confiscated these documents from him.

In doing so, the court made some important observations that hit at the heart of a commonly-held belief that the family is the ultimate arbitrator of a child’s life, even though the child in question may well be above 18 years of age. The assumption is that the family always knows better and that family honour supersedes individual desires. This attitude erases the violence that several lesbian, bisexual, gay, transgender and intersex persons face while growing up in their natal homes, often at the hands of their own parents, siblings and extended family. The court placed this violence firmly in the framework of rights violation, and by doing so, upheld the dignity and autonomy of transgenders, specifically transmen—a community that isn’t always visible—in India.

Shivy is a student of neurobiology at the University of California in the United States of America, and has lived in that country since the age of five. He has two younger brothers—twins—aged 11. While growing up, he had to face mental and physical violence from his mother, who didn’t accept his gender identity as a transmasculine person. Read his account of his growing up years here .

The judgment delivered by Justice Siddharth Mridul acknowledged the Nalsa judgment (Read here) by the Supreme Court that accorded third gender status to transgenders and said: “The time has come for us to mainstream the transgender community. Prejudice is so rampant, so authoritatively practiced that even families fall prey to its all-pervasive pressure.”

Non-heteronormative gender identity is also a matter of non-normative sexuality, and the Delhi High Court recognized the connection, when it stated: “Every human being has certain inalienable rights. This is a doctrine that is firmly enshrined in our Constitution. Gender identity and sexual orientation are fundamental to the right of self-determination, dignity and freedom. These freedoms lie at the heart of personal autonomy and freedom of individuals. A transgender’s sense or experience of gender is integral to their core personality and sense of being.”

We talk a lot about the social and cultural violence that transgenders face in our country. This is something that even the Nalsa judgment alluded to. However, in protecting Shivy, Justice Mridul pointed to something important: families break the law too. This often happens when it comes to unilateral decisions that they make on behalf of LGBTQ individuals. Seema Bhat’s decision to keep Shivy’s documents under lock and key, her decision to shift her family to India without taking their opinion into account, and her threats to Shivy that a year in India would ‘fix’ him are part of this continuum of abrogation of rights. Her sense of entitlement pushed her to file a case with the New Agra police that alleged that her child had been kidnapped by unknown persons, even though Shivy, according to his own admission, had left her a letter stating that he was leaving home of his own choice. (She later told the judge that she was not keen to pursue the complaint, and the court has ordered the UP Police to take note of this.)

A study published by LABIA, a queer feminist group, in 2013 called Breaking the Binary, states: “One of the most critical aspects in the lives of most people is their relationship with their natal families. This was not an easy space for a majority of our respondents. It was with a good deal of dismay that we found narrative after narrative speaking of outright discrimination and extreme violence from parents and other family members.” The study was conducted among a group of 50 queer persons across India who, like Shivy were assigned female gender at birth, but who don’t identify with it. The respondents spoke to the researchers of, among other things, growing up surrounded by non-acceptance and violence. “These findings underline for us how crucial it is to understand people’s experiences with their natal families, both while growing up and as adults (…) They also emphasize the need to understand the dynamics of birth families, with their inherent violence and hierarchies.”

It could be the way a child dresses, or the length of their hair they wish to keep. The slightest deviation is questioned; the child is harangued for something that comes naturally to them. Violence, policing and control become means to bring LGBTI people ‘in line’. But with this judgment in place, it would do families a whole lot of good to think about violence as something that also breaks the law.

The Sex Talk is a fortnightly blog on gender, sexuality and blindspots

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