The route to social justice in India is steeped in dichotomy; one that is wadded with U-turns and dead ends that set its progress several decades back every so often. Even as the nation is all set to appoint its first “openly gay” judge in independent history, conservative backlash against NCERT’s pathbreaking teacher training manual titled “Inclusion of Transgender Children in School Education: Concerns and Roadmap” and its consequent withdrawal has once again given public morality the upper hand over its constitutional counterpart and failed to protect fundamental rights of an entire social community.
When an incredibly diverse population is straitjacketed as binary and heteronormative, any attempts at spreading awareness are dubbed as “exposure”, while attempts at making educational curricula more inclusive are parroted as against the “cultural fabric of the nation.” Section 29(a) of the Right to Education Act1 asks academic authorities to conform with the values enshrined in our Constitution. And for the first time, a national level body sought to address a gender-biased, discriminatory school culture and replace it with a sensitised and gender diversity-informed teaching base, thereby aligning it with constitutional values of equality, liberty and justice. While it may very well appease a number of people, the move to withdraw the Module falls in direct contradiction to not only Fundamental Rights as guaranteed by the Constitution but also the United Nations Convention on Rights of the Child2, to which India stands signatory to since 1992. The Convention’s primary goal is to view every child as a complete human, worthy of independent thought and self-expression, bolstered by principles of non-discrimination, right to live with dignity and holistic development. By suppressing information that is vital for transgender and non-binary children to feel accepted, heard and safe, their birth rights are very cunningly controversialised and served up for debate.
Apart from international conventions, the validity of the withdrawal can further be juxtaposed with domestic judicial pronouncements. While originally envisaged in the context of rights of illegitimate children, the Hon’ble Supreme Court’s 1997 Gaurav Jain judgement3 can be effectively used to protect transgender and gender non-conforming children’s fundamental rights to life, dignity, equal opportunity and holistic integration into mainstream society- “(The) children have the right to equality of opportunity, dignity and care, protection and rehabilitation by the society with both hands open to bring them into the mainstream of social life without pre-stigma affixed on them for no fault of theirs… Abandoning the children, excluding good foundation of life for them, is a crime against humanity.” The Court, in the same judgement reinforced the 10 principals of The United Nations Declaration on the Rights of the Child4 and asked the relevant state authorities to closely adhere to it. Similarly, in National Commission for Child Rights v Rajesh Kumar5, the Court directed the Central and various State-level Child Rights Commissions (NCCR) to effectively implement provisions of the Commissions for Protection of Child Rights Act6 that gives notable recognition to “children in need of special care and protection including children in distress, marginalised and disadvantaged children.”
In a binary-coded heteronormative society, intrinsic parts of what makes one human such as personhood, self-expression and dignity are often entrapped within binary-gendered bodies. This is the root cause of constant alienation of trans folks from their supposedly “inalienable” rights. When certain bodies are dehumanised and subjected to unending scrutiny and stigmatisation, their suppression of (self) expression too becomes rather digestible. Trans children are victims of consistent institutional gaslighting and cultural invisibalisation which severely hinders their right to participate and engage in socio-educational contexts that are fulfilling, inclusive and pro-dialogue. It thus also becomes the NCCR’s duty to demand bringing back the NCERT Manual and ensure trans and gender non-conforming children are not robbed off their fundamental right to a dignified and secure life.
As Kofi Annan once very eloquently put it- “There is no trust more sacred than the one the world holds with children. There is no duty more important than ensuring that their rights are respected, that their welfare is protected, that their lives are free from fear and want and that they can grow up in peace.”
This post was originally published on LSE Human Rights.
