THE DISPROPORTIONATE EFFECT OF COVID-19 PANDEMIC: IMPACT OF GENDER AND DIFFERENCES IN CHALLENGES FACED BY WOMEN AND THE LGBTQ+ COMMUNITY

Raghavi R. and Sahana Priya Satish, both fourth year students of Tamil Nadu National Law University, discusses the disproportionate effect of Covid-19 on women and LGBTQ+ community.

Introduction

The coronavirus pandemic has led to extreme social disruption, heightening the existing social and economic vulnerabilities. It has caused a shift in the focus of those in authority towards taking remedial and preventive measures to stop further spread of the virus. Though warranted, this lockdown in the light of COVID-19 has resulted in the eclipse of one of the most pervasive forms of human rights violation- domestic violence. It has also resulted in the disregard of the needs of various marginalised groups of the population.

This essay seeks to highlight the urgent need to address the growing menace of domestic violence during this time and to take affirmative actions to combat it. It also aims to put into focus the plight of some members of the LQBTQI+ community in the backdrop of the pandemic. The first step in this process is to identify and realise the existence of gender-based differences in experiencing the effects of a lockdown. These differences in the impact become all the more relevant in the backdrop of a country like India, owing to its patriarchal set-up. Further, the essay also looks at prospective special measures that could be taken in light of the framework of the Protection of Women from Domestic Violence Act, 2005, in the wake of the current situation as well as other sustainable measures that can help the mitigation of the crisis while catering to the needs of vulnerable groups.

Home, a place far from being safe- The brutal reality  

Domestic violence continues to be one of the most horrendous yet hidden forms of violence against women and children. It includes both physical and emotional abuse that may be inflicted upon the victim.  While both these forms of domestic violence are widely prevalent, physical abuse is certainly more discernible than the psychological scarring. The magnitude of this issue oftentimes goes unnoticed, mostly due to the underlying social and psychological factors in the institution.

Unlike other forms of abuse, the fact remains that this is executed by a person who is related to the victim, such as her husband, father, in-laws or others who may be understood to be in a fiduciary relationship with her. It occurs in circumstances where the victim may seem free to leave, but in reality, is held prisoner by fear of further violence against herself and her children, or due to lack of resources and familial, legal or community support.[1]

Economic and psychological dependability plays a major role in comprehending the reasons as to why a particular gender is considered ‘weak’ or is subjected to mistreatment as opposed to others.[2] A number of women in India have been manipulated and coerced into staying at home instead of seeking employment, leaving them with no choice but to accept low paid or unpaid household based exploitive labour. However, it is imperative to realise that this works in the inverse way too. The progressive increase in the economic independence of women is perceived as a menace or a threat, thereby contributing to violence against working women.[3] 

Differential impact among gender groups 

In India and globally, women have always been regarded as the primary caretakers in a family. The coronavirus pandemic and consequently the lockdown have worsened the situation of working women as they are burdened with fulfilling the needs of the family as well as completing work obligations. The economic impact of the lockdown also finds stark differences in the way it affects women and marginalised groups as opposed to men.[4] Apart from being the informal care takers within families, many women are often the primary breadwinners in their family. The workers who are employed as domestic help are predominantly women[5] and with the lockdown they have become unemployed without any pay. In families where such women are the sole earning members, their source of income has been adversely affected.

The tackling of domestic violence during the period of a lockdown becomes more essential as the victim and the abuser are often residing together, which leaves the victim with very less opportunity to escape or to even report abusive incidents. With the disappearance of the few hours of respite that these women had prior to the lockdown, there has been a global rise in the number of domestic violence cases.[6] Various NGOs which work with victims of domestic violence are unable to provide any help to such women due to the lockdown and the strong social distancing measures in place. Where previously the victims had the option to be moved to private shelter homes, now their only solace is in contacting the helplines that have been set up by a few NGOs.[7]  This also poses a challenge as not all women have the wherewithal to be able to access a phone for the purpose.

In case of queer and transwomen for whom home often turns out to be the site of abuse, the lockdown has proven to pose various difficulties as they are unable to interact in a safe space or seek help from help centers catering to their needs. Some members of the transgender community are also facing the brunt of the situation as they have been plagued with a loss of accommodation, livelihood, food security and health.[8] The members of this community who are required to undergo Hormone Replacement Therapy for gender transitioning and Anti-Retroviral Treatment for treating HIV/AIDS are unable to access hospitals due to the overburdened health care system.[9]

Recommended measures

The measures that have been taken for the management of this pandemic have completely ignored the disproportionate impact that it has on women and other marginalised groups. There seems to exist an inherent male bias in the policies and approach surrounding the outbreak of a disease. The treatment and handling of the COVID-19 pandemic by the government has not taken into consideration the differential effect that a lockdown has on women which has led to various problems. One of the most important steps that can be taken to rectify this is by ensuring and encouraging the participation of women and other affected groups in framing of policies and interventions so that they fulfill the needs of various groups.  

The Protection of Women from Domestic Violence Act, 2005 (hereinafter, “the Act”) has been designed in such a manner so as to tackle emergency situations and grant immediate relief. There is a need to ensure efficient working of protection officers, appointed under S. 8 of the Act. Though they have been appointed to assist women and ensure appropriate working of the Act, studies[10] indicate an absence of positive influence on their part due to a lack of sensitivity or competency. The first step is to believe victims and to offer them whatever instantaneous assistance possible. Certain exclusive measures can be taken up while handling domestic violence matters during these exceptional times. 

One suggestion would be with regard to the processing of the complaints received via the official website of the National Commission of Women.[11] If the complaint in itself seems indicative of the presence of abuse that warrants immediate protection to the victim under the PWDV Act, then the same can be done. Spreading awareness regarding helpline numbers through the aid of television, radio, print media and online platforms is crucial. Further, an additional number of Non-Governmental Organisations should be encouraged to register as essential service providers under S. 10 of the Act. 

Other possible measures include providing regular telephone counseling services to both the victim and the abuser and institutional quarantine of the abuser wherever required. The government can also work with various organisations to establish private shelter homes for people facing abuse along with transport facilities for them so that they have the option to seek shelter elsewhere. The provision of measures such as these would go a long way in tackling domestic violence and abuse during a lockdown.

The transgender community has been faced with increasing hardships in relation to accommodation, livelihood and healthcare, as a consequence of which a few people from the community wrote to the Ministry of Finance, Home Affairs and Social Justice & Empowerment seeking assistance.[12] It is the responsibility of the government to pay heed to the basic requirements of this community and to make certain that at least their minimum survival necessities are met with. Steps also need to be taken to ensure that the persons who require regular medical attention are provided with the requisite facilities so that no hindrance is caused in their treatments.

Conclusion

In a country like India, where the society still functions on a patriarchal setup, gender becomes a key demographic consideration during the handling of emergency situations like pandemics. During these times, the goal of gender equality is often put on hold. This should not be the case; protection of victims needs to be prioritized irrespective of a ‘larger crisis’. Employing a gendered dimension is usually not given importance while responding to problems like the current crisis, but the failure to do so has the potential to aggravate the existing inequalities. There is a need to apply a gendered lens while studying the effect of a pandemic and this can be achieved by incorporating the views and knowledge of women and other marginalised groups which could help in improving outbreak preparedness and response. Such strides in ensuring gender equality should not be limited to just tackling this pandemic but should also act as a stepping stone towards bringing down the systemic and structural barriers that have plagued these diverse groups for years.


Raghavi R. and Sahana Priya Satish are fourth year student of Tamil Nadu National Law University, Tamil Nadu.


[1]Report of the Special Rapporteur on Violence Against Women,  United Nations ECOSOCE/CN.4/1996/53 at  https://www.ohchr.org/Documents/Issues/Women/15YearReviewofVAWMandate.pdf.

[2]Domestic violence against women and girls, Innocenti Digest (No.6, 2000), UNICEF Innocenti Research Centre, Florence, Italy, at https://www.unicef-irc.org/publications/pdf/digest6e.pdf

[3]Id.

[4]Women at the Core of the Fight Against COVID-19 Crisis, OECD Policy Responses to Coronavirus, at https://www.oecd.org/coronavirus/policy-responses/women-at-the-core-of-the-fight-against-covid-19-crisis-553a8269/

[5]Dr. Nidhi Tewathia, Living on the Margins of Development: Domestic Women Workers, MPRA Paper No. 82258, ( Nov 02, 2017) https://mpra.ub.unimuenchen.de/82258/1/MPRA_paper_82258.pdf

[6]UN backs Global Action to End Violence Against Women and Girls Amid COVID-19 Crisis, UN News, Apr. 6, 2020, at https://news.un.org/en/story/2020/04/1061132.

[7]Aathira Konikkara, Lockdown and Domestic Violence: As NGOs Struggle to Support Women at Risk, Government Plays Catch Up, The Caravan,  Apr. 15, 2020, at https://caravanmagazine.in/gender/lockdown-domestic-violence-ngo-struggle-government-catch-up.  

[8]Divya Trivedi, COVID-19 and the Plight of the Transgender Community, Frontline, Apr. 29, 2020, at https://frontline.thehindu.com/dispatches/article31463945.ece.

[9]As the World Comes Together, India’s Transgender Community Fights COVID-19 Alone, Amnesty International, Apr. 1, 2020, at https://amnesty.org.in/as-the-world-comes-together-indias-transgender-community-fights-covid-19-alone/.

[10]Tulika Saxena Indian Protection of Women from Domestic Violence Act: Stumbling or Striving Ahead? https://core.ac.uk/download/pdf/156706367.pdf.

[11]Complaint and Investigation Cell, National Commission for Women, http://ncw.nic.in/ncw-cells/complaint-investigation-cell

[12]Trivedi, supra. 

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

INCOMPLETE EQUALITY: AFTER EFFECTS OF ABOLISHING SECTION 377.

Aryaknath Bhattacharya, a third year Law student of Amity Law School, Kolkata discusses the after effects of the historic judgment that struck down Section 377 of I.P.C.

Introduction

About one and a half years back, the Supreme Court of India decriminalized Section 377 of the Indian Penal Code, a draconian, pre-independence law with a colonial influence which criminalized same-sex relationships between consenting adults. After this section was partially struck down from the penal code by the five-judge bench led by then Chief Justice of India Dipak Misra, it was a happy and cheerful moment for the activists as their plea was acknowledged. Now LGBT individuals were allowed to have consensual intercourse, and they won’t be breaking any laws by doing so.[1]

Issues faced by the LGBT Community 

Now the question that arises is after this section was struck down from the Penal Code, are these individuals from the LGBT community treated as equals? Is the golden triangle of the Indian Constitution really maintained for these people?   

The concept of Human Rights is based on the ground that all humans are equal and will be treated equally. All humans have dignity, and they are to be treated equally. Anything or anyone who undermines that dignity is to be considered to be a violation of that person’s Human Rights. But in our country, it is quite evident that people fail to accept them as equals, even the law fails to treat them as equals. There is a significant deficiency when it comes to the rights of the individuals from the LGBTQ community, like their identity is questioned, their family and upbringing are questioned, they are discriminated while giving them jobs, and they have to face violence while they disclose their preferences.  Today, there is a high percentage of people from the LGBTQ community who tend to hide their identity as they fear to receive hate or violence from their family, friends, colleges, and the employer as the people are still disinclined to accept the concept of LGBTQ in the society. No legal protection is provided to the people of the LGBTQ community in the workplace or to face discrimination.[2]

Suggestion to eradicate the issue: – 

Now the other question that arises is how to lessen the gap or the deficiency of Human Rights faced by these individuals?

The answer to this question is, by informing everyone that it is ok to be an individual of the LGBTQ community, make these socially acceptable. But that is where society is, it will accept the concept of LGBTQ sooner or later, what these community really needs now is legislation which recognizes them the way they are, which protects them from all violence and discrimination, which upholds their Human Rights and makes it a priority that all other laws do the same.

The new legislation must contain certain rights, like the right of the LGBTQ individuals getting married to each other. India does not recognize any statute which talks about marriage between two individuals of same-sex, but the new legislation might change this. We can say that not allowing two people of LGBTQ community to get married is a violation of Article 21 of the Constitution of India, Article 21 speaks about “Right to life and personal liberty”. Then the right of adoption among same-sex or trans couple is mentioned no were in any of the laws in the country; the new legislation should also take this right into consideration while drafting this legislation; they should also mention the capacity of an LGBTQ parent. Then the right to employment is a right that the drafters need to look into while drafting this legislation they must make it clear that discrimination of any sort against these employees will be treated as a punishable offense. There is the right to surrogacy; the Surrogacy Bill, which was passed by the upper house, only takes about conventional couples; they can opt for surrogacy five years after marriage. The Bill excludes the LGBTQ community in this. The legislation also must contain other important topics like divorce, alimony, maintenance, custody of children, and succession should be mentioned and described in such legislation.[3] 

The most important part of such legislation should be equality rights. The people of this community should be treated like any other people in the country. Any act of discrimination on the individuals should be fined or should be sentenced to jail time or should be given both depending upon the grievousness of the act of discrimination. Any authority which is making any rule which is discriminatory to this community should be held illegal.

Conclusion 

Though the scraping down Section 377 of IPC made LGBTQ community legal, the current laws don’t treat them like anything legal. We need laws that will make them equals in the eyes of the law. This legislation will also influence the society to think with an open mind, and hopefully sooner or later, being from LGBTQ will not be considered as a taboo. Every human deserves respect. Every human has rights.

We need to treat every human being as a human being. 


Aryaknath Bhattacharya is a third year Law student from Amity Law School, Kolkata.


[1]Constitutionality of Section 377 IPC, Supreme Court Observer(June 6,2020) https://www.scobserver.in/court-case/section-377-case/plain-english-short-summary-of-judgement 

[2]LGBT Workplace Issues: Why the majority of LGBT workers still hide their identity at work., EVERFI,(June 16, 2020)  https://everfi.com/insights/blog/lgbt-workplace-issues-hide-their-identity/ 

[3]Queer Freedom? A Year After Section 377 Verdict, LGBT Community Still Don’t Have These Rights, News18 (June 6, 2020) https://www.news18.com/news/buzz/queer-freedom-a-year-after-section-377-verdict-lgbt-community-still-dont-have-these-rights-2299373.html

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

THE TRANSGENDER PERSONS ACT, 2019: AN INHERENTLY FLAWED LEGISLATION

Source – Arre

Pragya Upadhyay and Aayushi Jha, both 1st year students of Chanakya National Law University, Patna analyzes various attributes of The Transgender Persons Act, 2019 which was signed into law by the President of India on December 5, 2019.

The Vedas explicitly describe every person belonging to one of the three separate categories, classified as pul-ling (male), stri-ling (female) and napunsak-ling (third gender) according to one’s respective nature.[1] The third gender or ‘Transgender’, is defined in the dictionary as a person whose gender expression differs or does not correspond with the sex assigned by birth. In some areas, they are also known as ‘Aruvani’ and ‘Jogappa’.

It is an undisputedly fact that India is a democratic sovereign nation; which essentially means that the government is by the people, for the people and of the people. 

This necessarily entails that the government is supposed to protect people and work for the upliftment of the downtrodden by enacting different rules and regulations in the form of laws that are unbiased and impartial. This treatment by the government becomes even more crucial where a country like India is concerned; a country that is drenched in deep-seated prejudice, superstitious notions and highly flawed moral grounds. Not to discourage or overlook the progressiveness that can be seen in recent times, mobilized by landmark decisions of the judiciary and the rock-solid voice of the masses; the silver lining can be attributed to the rapid and astonishing development in the mindset of the country’s youth, but some facets still leave a lot to be desired.

The society we live in is largely gender-specific owing to which, and that includes ignorance and the stigma surrounding the community, the society does not want to acknowledge the plight of the transgender community. If at all their presence is acknowledged, they are mostly portrayed in a negative light; contrary to the time when they enjoyed power and prestige in the Mughal era where they were the middle rung of power.[2] 

The community has had to face extreme prejudice and marginalization, and it still reflects in the condescending attitude, not only of the common people but also of the laws that govern them. In a gender-specific India, where discrimination and other transgressions against transgender people are fundamentally rooted, appropriate legislation is required to uphold equal access to the law.

The Transgender Persons (Protection of Rights) Act, 2019 is an act of the Parliament of India, to provide for the protection of rights of transgender persons, their welfare, and other related matters. Nevertheless, the 2018 bill, which was preceded by a 2016 version, was met with protests and criticism by trans groups, lawyers, and activists in India. The 2016 bill received significant backlash following which the Lok Sabha drafted an amended version of the Bill and passed it in December 2018. However, it failed to accommodate many of the committee’s recommendations. Members of the opposition in Rajya Sabha, despite criticizing the Bill and assuring transgender people of not voting in favour of it, passed it on Nov. 25 2019. On Dec. 05, 2019, it was signed into law by the President of India.[3]

This Act aims at protecting the rights of the transgender persons. It prohibits the discrimination against a transgender person, including denial of service or unfair treatment about education, employment, healthcare, access to, or enjoyment of goods, facilities, opportunities available to the public, right to movement, right to reside, rent, or otherwise occupy the property, opportunity to hold public or private office and access to a government or private establishment in whose care or custody a transgender person is. 

The plight of the transgender is not unknown but more often than not, goes unnoticed. The Act, even though fairly incomprehensive and inadequate on various fronts, is a positive step forward to a more gender-inclusive society; however, the fact remains that the negatives of the Act greatly outweigh the positives.

Human sexuality and its identification have such a wide spectrum that restricting it to one word in this case “transgender” is a gross incidence of ignorance towards a significant and relevant section of the society. 

The activists put forth the contention that ‘Transgender’ was restrictive, and it showed a lack of understanding of the complexities in people who do not conform to the gender binary, male/female. The fact that all persons with intersex variations and queers to have been pigeonholed as a transgender further underscores how the definition has been oversimplified and not properly thought through.

Further problems arise from the numerous erroneous propositions that plague a law that is supposed to be progressive. A few of these errors were rectified before the Bill was passed and designated as an act of parliament. Still, the problems left untouched put a dark shadow over the intentions to create an atmosphere that is inclusive and accepting of a section of society that has been subjected to all kinds of mockery, ostracisation and abuse.

 While the Act is progressive in that it allows self-perception of identity, it mandates a certificate from a district magistrate declaring the holder to be transgender. This goes against the principle of the self-determination itself; also, there is no room for redress in case an appeal for such a certificate is rejected. One long-pending demand has been to declare forced and unnecessary sex reassignment surgery illegal and to enforce punitive action for violations. 

 The identity certificate will only identify people as transgender and not as male or female unless the person has undergone a sex reassignment surgery and can provide proof thereof. A revised certificate may be obtained only if the person undergoes surgery to change their gender either as a male or a female. 

It infringes upon the right of the transgender people to decide their gender identity, which was recognized in the landmark judgment NALSA v. UOI[4] and that is problematic. This Bill gives discretionary powers to the District Magistrate to decide upon a transgender’s gender identity. Furthermore, even though the Bill impliedly mandates sex reassignment surgery to be identified as a male or female, the Bill does not specify if any fee relaxation would be given considering the fact that most of them live on low income that translates to living in poverty. 

The Act does not provide for employment opportunities through reservations, disregarding the directions of the apex court in the NALSA judgment. While we see snippets of transgender people rising to respective ranks in society, they are far and few in between and lack the support that a similarly abled cis individual gets.

In hindsight, to do away with the criminalization of beggary was a welcome move from the government even though it remains a sad fact that the people of the marginalized committee had to fight for this limited chance of livelihood that the society provides them.

Perhaps, the most astonishing provision of this act is that it treats rape/sexual assault of transgender persons as different from the cis-gendered individuals and gives a punishment of a maximum of 2 years as compared to 7 years in the case of the latter. This showcases the blatant disregard that the government has for this community resulting in making them feel less of a person; grossly violating their fundamental rights.

It is important to understand that to bring about an active upliftment of the transgender community, it is pertinent to give them sovereignty over their own bodies and how they embody gender identity. This is important to not put any unnecessary financial strain and not make them vulnerable to discrimination by the authorities.

The community remains highly disappointed that the Bill has become an Act without any efforts to make valid or relevant changes to its original composition; it is also highly worried and suspicious of the implementation of the act and its consequences. The activists hope that the National Council for Transgender Persons will allow for a more favourable implementation of the law and thus provide more elbow room for genuine representations of the community that the law has failed to accommodate; resurrecting a progressive and encouraging regulation that has the potential to play a pivotal role in the strength of an inclusive nation.


Pragya Upadhyay and Aayushi Jha are first year law students of Chanakya National Law University,Patna.


[1]Kashish Singh, Transgender People In Vedic Times, Medium (Apr.05, 2020, 10:00 AM) https://medium.com/@kashishsingh2002/transgender-people-in-vedic-times-59aba4334ed9.

[2]Adrija Rowchowdhury, When Eunuchs were the mid rung of power in the Mughal Empire, The Indian Express (Apr. 05, 2020, 10:30 AM) https://www.google.com/amp/s/indianexpress.com/article/research/eunuch-security-guards-bihar-mughal-empire-history-5266102/lite.

[3]Transgender Persons (Protection of Rights) Act, 2019 Bill No. 169 of 2019.

[4]National Legal Services Authority v. Union of India WP (Civil) No. 400 of [2012].

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.