Assam’s first transgender judge, Swati Bidhan Baruah, talks about tokenism against the trans community and issues within the judicial system

Swati Bidhan Baruah, 26, made headlines recently for being appointed as India’s third and Assam’s first transgender judge. Hailing from the state’s strong LGBTQ community, she will be one among 20-member judges to mediate pre-litigation cases of finance companies in a Lok Adalat in Guwahati.

In an interview, Swati speaks about the challenges she had to face in her efforts to get a gender reassignment surgery, and how she was able to reach her current position.

Congratulations on being the first to be appointed as judge from the transgender community in the Northeast! How do you see your appointment in the context of the struggles that the transgender community is facing in India, especially in the Northeast?

Thank you. Our struggle in the Northeast was never in focus until now. Because I am the face of it, the community’s problems are no longer being sidelined by the media. But you can’t say — with a single appointment — that problems have been resolved. I feel the government should come out more openly to help stop the transgender community from being so marginalised.

You had to fight a case against your own family during your gender reassignment surgery in 2012. Whether with family and society, would you like to share the challenges you had to face?

Not only against one’s family, it’s a fight against your body. When you feel you were born in the wrong body, you feel trapped. You want to get rid of it. When support from the family is lacking, you question your decision. Parents also share society’s patriarchal mindset; they don’t use their own conscience. They are more concerned about the social humiliation they will suffer.

If you go through my petition (in the Bombay High Court), you will find that I had just appealed for permission to undergo a sex reassignment surgery. At that time, I was only 21 years old. I had to arrange tickets and escape from Guwahati to Mumbai. Doctors too were unwilling to proceed with my surgery. Again, I had to hire an advocate to fight for my rights. These were my struggles. But the judgment the court passed was a landmark order.

How do you view the LGBTQ struggles across India? Do you think dialogue is necessary between separate sexual identities within the LGBTQ — now expanded to LGBTQIA — community? How do you see the community’s conflict resolving and moving ahead?

Apart from the transgenders, I find the others more fantasised and economically sound. So I feel they face fewer struggles. For example, unless a gay person declares their orientation, no one will bother them. But when it comes to transgenders, we have to face questions like ‘why do you come with so much make-up’ and ‘why is your voice so different?’.

When it comes to dialogue, I want to bring up what I call the ‘NGO mafia’. For them, divisive identity politics is key to receiving foreign funding — but not for community development since the community has not developed at the grassroots level. The question is, how are they utilising their funds? They form an NGO saying they are fighting for the community, but after a month you will find them standing on the road and distributing condoms. These are some of the things that need to be stopped immediately — this NGO culture and foreign funding. Only then can dialogue be possible.

I don’t see the expansion of LGBTQ as leading to identity politics, because every person is different. They have their own feelings and emotions. In that way, identity is different. Biologically, I was born in a male body but I always believed my identity to be female. There is no identity politics within the community, it’s just that NGOs use it as a tool to keep differences alive. Till the differences are maintained, they will be able to fill up their pockets.

As for your last question, I don’t see the LGBTQIA struggles as moving ahead. The position and status of the community is still what it was in 2009-10. The only progress was in terms of the discussion of the removal of Section 377.

You formed a transgender association in Assam. What do you want to achieve through it?

We are no longer associated with the ‘LGBT’. From the start of LGBT Pride till now, the transgender community has been used merely for tokenism. Various LGBT NGOs hire a transgender with a banner and ask them to distribute condoms. That is because of the patriarchal mindset of people. That’s why the Supreme Court also recognised the ‘transgender’ as ‘third gender’ first. Not only in Assam but throughout India, the transgender community has separated itself from LGBT.

Do you think that specific transgender and overall LGBTQIA issues are different in the Northeast unlike the rest of the country, considering the popular understanding that modernity facilitates exposure of sexual identities outside repressive heteronormativity?

In Manipur, I have seen people being more accepting of the community. Even straight guys have good relations with a trans-girl. It’s not a big issue there. But when it comes to Nagaland, Assam, Arunachal Pradesh, Tripura and Meghalaya, the patriarchal and stigmatised mindset of people leads to discrimination. Thus, the community is suffering.

People talk about modernity. But gender is in the mind. In every religious community and for all times, the transgender community has been a part of society. People call us ‘unnatural’, but the Rig Veda clearly says ‘what is unnatural is natural’. The problem is that present society is more interested in labelling us, and that’s because they are not sensitive to our issues and don’t want to discuss and open their minds.

Do you feel the need for gender sensitisation within the judiciary? Have you noticed any kind of prejudice or discrimination against separate sexual identities within the judiciary?

I do feel the need for gender sensitisation within the judiciary, because prior to the landmark NALSA judgment, there was a Guwahati High Court notification for a weekly workshop on various rights, including the rights of transgenders. But subsequently, both the High Court and lower judiciary have disobeyed the Supreme Court’s order on transgenders. For this, the community is suffering. Most new magistrates or aspiring judges are not even aware of the NALSA judgment, and what the guidelines are pertaining to transgender people. So proper sensitisation is required.

Another example is that the definition of ‘gender’ is limited to ‘male’ and ‘female’ in the Code of Criminal Procedure and the Indian Penal Code. There is no transgender quota. So how can a magistrate or judge prosecute transgenders under the CRPC and IPC? The system is paralysed. Such absence of laws shows the government and constitutional machinery are insensitive towards the transgender community. When I was arguing before the additional district judge in Kamrup, he asked in an open court that if a transgender will marry a man, how will they have intercourse. So what more can you expect from them?

Gender and sexuality beyond heteronormativity are often neglected issues among social and political activist groups in the Northeast. What do you feel can or should be done to bring these issues forward?

If a woman is raped or molested, you will find many educated or well-known activists coming out in protest and demanding justice for her. But if a transgender is sexually harassed, molested or murdered, no one speaks up. These are some of the things that should be evaluated and people sensitised about — only then will the ideology change.

Finally, do you think that a unified, collective movement is possible against all kinds of social oppression and discrimination?
Yes, a unified and collective struggle is necessary. But it should be systematic and not unruly. Then only it can achieve something.

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