India's 'Progressive' Abortion Law Is Failing LGBTQIA+ Indians

The discourse around reproductive healthcare in India fails to account for a sizeable population of queer Indians who may not identify as women, but for whom safe abortions and other sexual and reproductive healthcare access is critical

Indias Progressive Abortion Law Is Failing LGBTQIA+ Indians

New Delhi: For Shaman Gupta, logging on to Facebook was almost a ritual of survival in 2015. The tiny chat boxes allowed him, in Dehradun, to access a small community of fellow trans men who struggled with the same dysphoria. A transgender person's sense of their own gender differs from the sex they were assigned at birth. With information scarce and connections limited, he didn't know who he could turn to, to find answers about his body. Going online eased his journey of coming out and identifying as a trans man. "I wondered how a trans man in a rural pocket, without that internet connection, may probably have to spend an entire lifetime living in a body that they do not feel comfortable in. The gap felt so huge," he told IndiaSpend.

Gupta, 33, and six other transgender activists would go on to form the Transgender Welfare Equity and Empowerment Trust, or TWEET Foundation, in 2017. The organisation has its roots in a circulating spreadsheet of non-judgemental doctors in various cities across the country. Today, TWEET Foundation is based out of Delhi and Mumbai, with one shelter home in each city. It runs a dedicated helpline where trans-affirmative sexual and reproductive health and rights (SRHR) services and health linkages are made available over a call or a simple WhatsApp text. Among the many calls they receive on the helpline, a few appear to be frantic requests for help from transgender youth--to locate a single non-judgemental gynaecologist in their vicinity who can understand a trans body and their health emergency without tearing apart their gender identity, said Gupta.

Following the United States' Supreme Court's abrogation of the Roe vs. Wade ruling (a landmark case that constitutionally protected abortion rights in the US for almost 50 years) in June 2022, many Indians expressed relief at being in a country that legalises abortions for up to 24 weeks of pregnancy. And yet, India's abortion laws and healthcare infrastructure systemically exclude a sizeable population of the LGBTQIA+ community--transgender, non-binary (a gender identity that doesn't ascribe to the woman-man binary), and gender-diverse people who were assigned female or intersex at birth--who too experience pregnancy and require access to safe abortions and sexual and reproductive health services.

While India's Medical Termination of Pregnancy (Amendment) Act, 2021 (MTP Act, 2001) permits certain abortions, it does not grant pregnant persons complete control over their reproductive choices, experts said. The legal framework around SRHR, whether related to abortion or other healthcare services, including contraception, menstrual health, and screenings for cervical/uterine/ovarian cancer, should be made inclusive of anyone who requires sexual and reproductive health services and is able to get pregnant, not just 'women', as currently covered under the language of the Act, they suggested. The mainstream medical curriculum should also be sensitised to the entire spectrum of sexual orientation and conversations around trans bodies.

Non-inclusive language and the barrier of binaries

"The entire MTP Amendment Act specifically states pregnant 'women', which then leaves out all transgender, non-binary and gender-diverse persons for whom abortion access is critical. The word 'women' should be replaced by 'person'. Anyone who is able to get pregnant should have access to sexual and reproductive health services and equal protection under the law, not just women," Dipika Jain, director of the Centre for Justice, Law and Society at the Jindal Global Law School at Sonipat in the National Capital Region, told IndiaSpend.

Jain attributed this exclusion to the sizable stigma and transphobia among doctors, and a legal framework that is not inclusive, as our understanding of who can get pregnant is not inclusive. "The challenge is that we always use the word 'women' for conversations around reproductive health and it dissociates trans men from talking about their needs or something as simple as saying that I, too, get periods. It's so taboo," said Gupta.

"The mainstream medical curriculum is not sensitised to the entire spectrum of sexual orientation and conversations around trans bodies or of someone who is transitioning. Apart from transition medicines, they require the same care and sexual and reproductive health services as any other person," Suchitra Dalvie, a Mumbai-based gynaecologist and coordinator for the pan-Asian Asia Safe Abortion Partnership (ASAP) network for safe abortion advocacy, told IndiaSpend. These services include contraception, menstrual health, abortion, screenings for cervical/uterine/ovarian cancer and checkups for sexually transmitted diseases (STDs).

"My identity is a bigger question mark than what my medical problem is. I physically look like a man but haven't undergone a transition surgery, so I still have a uterus. So if there's a problem with my uterus, they don't know what to make of me," said Ray*, 42, a trans man living in Mumbai.

Shane Bhatla, 28, is a trans man now based in Thailand, where he works with the Equal Asia Foundation. Addressing the mental toll, he explained how the first piece of information any medical facility demands is the patient's sex, indicating that this experience was universal regardless of the country he was in. "You get misgendered, mistreated and stared at. When I started hormones, I had to educate my gynaecologist about what changes would occur in my body," he said.

Gupta, too, illustrates how ostracisation, scrutiny and physical screening right at the doorstep can become a barrier that dehumanises and stops trans people from visiting any kind of a doctor. In some cases, when people "went to get their gender dysphoria certificates in Sion Hospital, Mumbai, there were incidents where they've been asked to remove their clothes, to ascertain their sex. This has happened at posh private clinics in Delhi too."

The risk of unsafe abortions

Sam*, 22, identifies as non-binary and is a student at Delhi University. At 19, they had to get an abortion but the private clinic in Delhi they went to refused to perform the procedure until they brought in their parents for permission. "A friend's mother had to accompany me as my parent and that's when I could ultimately get it. I, at one point, considered a miscarriage by harming myself or committing suicide. I thought it would somehow fix it, if I'm unable to get an abortion done in time," said Sam.

"The doctors are trained to look at our bodies in binaries and the gynaecologist's office is seen as a 'women's space'. Even if they need an abortion, they usually end up at back-alley quacks, where they are prone to further infections and fatal health risks," according to Nandini Mazumder, assistant coordinator at ASAP, based out of Kolkata, who has researched the issue in partnership with several Asian trans rights organisations.

The fear of harassment and hostility from doctors and hospital support staff causes many trans men and non-binary persons to avoid hospital visits, Mazumder told IndiaSpend. She recalls one such instance, where a trans man admitted that he'd rather go through the physical pain of illness than go to a doctor and return with an additional mental trauma. "This implies a further lack of access to preventive checkups for STDs, cancer screenings and proper diagnostic care," Mazumder explained.

Lots of trans men and non-binary people remain vulnerable to forcible sexual assault from their families or larger society, said Mazumder. "While having consensual sex for pleasure they stand the risk of an unintended pregnancy. In both cases, abortion access becomes imperative."

Several trans activists told us of how lack of education and employability leaves the community with no resources to afford private healthcare. "Smaller clinics have no incentive to change when addressing a marginalised community that may not mean big business," said Gupta. He wishes for the discourse to go beyond STDs and HIV to create platforms that address SRHR for trans communities in a more holistic manner.

An invisible 'other' in data

India's Census in 2011 was the first countrywide attempt to enumerate citizens with non-binary gender identities. This Census recorded sex-related data in a binary format of 'Male' or 'Female', while the rest were abstracted as 'Other' and further assumed to be 'trans'. Such an enumeration excludes those with transgender, intersex (a person born with a reproductive or sexual anatomy that doesn't fit the typical definitions of female or male) and other non-binary identities. Despite issues of exclusion and accuracy, the census provided an estimate of India's transgender population to be just under half a million. With Census 2021 delayed by the Covid-19 pandemic, the central government is still using this figure for the transgender population, 12 years on.

Data collection in India has been sex-focused (biological) and not gender-focused (behaviours considered masculine and feminine) so far, per a 2020 report by the Centre for Internet and Society. "Gender-disaggregated data does not reflect the reality of all gender minorities and cannot be used to make development decisions, especially for the inclusion of transgender and intersex persons, who are often misrepresented or absent in this data," the report stated. Nearly all major official data sources in India provide sex-related data in a binary male-female format, excluding people with transgender, intersex and other non-binary sexual identities, limiting their access to social security benefits and private services such as banking, IndiaSpend reported in June 2021.

Pointing out how legal and medical language has remained cis-hetero patriarchal, Mazumder remarked, "When there are not enough statistics and reports to address the intersections of gender and sex, the invisibilisation is definitely very telling."

The lack of data prohibits larger, systemic policy changes for trans men's health from the government, including problems in securing funding for targeted research, said Gupta of TWEET Foundation. "The barriers to access can range from a lack of identity cards in their preferred names to a hospital form that has no column for your gender identity. Even access to a gender-neutral toilet in a hospital is difficult for a transperson, which is also labelled as male or female," he added.

When asked whether the government plans to report all its data in a gender non-binary manner in order to include transgender persons, the Ministry of Social Justice and Empowerment told Parliament in July 2022 that the Registrar General had been requested to include transgender persons as a separate category in the next Census. IndiaSpend has asked the ministry what gender inclusionary language can be expected in the next Census. We will update the article if and when we receive a reply.

Ingenious ways to create access to sexual and reproductive health and rights

A 31-year-old trans man from Mumbai reached out to a WhatsApp care-chat service, complaining of high fever and symptoms of pregnancy. Fearing judgement from a doctor, they confided in the anonymous chat about having multiple partners and not knowing what to do next.

"We found a doctor for sexually transmitted infections testing, and asked them to take a pregnancy test at home. They couldn't read the pee stick and shared a picture of it. We then arranged a consultation with a gynaecologist," narrated Manu Raveendran, the CEO of Vipasyin, a Bengaluru-based startup that improves access to SRHR resources for adults through a WhatsApp-based care-chat service.

In another instance, the service delivered emergency contraceptive pills (ECPs) via delivery service Dunzo to a queer person (queer is an umbrella term used to refer to diverse sex characteristics, genders and sexualities that are not cisgender and/or heterosexual) whose parents didn't permit them to leave the house. "Individuals from the LGBTQIA+ community often require more emotional handholding, as they come from a place of extreme fear," said Raveendran. "We pre-vet our doctors, counsellors, clinics and have a partner network to help extend such access to India's remote regions."

In Tamil Nadu, access to ECPs remains dicey as a 'shadow ban' is reportedly exercised throughout the state's pharmacies. The only way to find the pill then, for many individuals in Tamil Nadu, is through a Twitter-based whisper network, as they remain prone to being shamed for trying to buy ECPs and are turned away from shops, said local activists.

A crowdsourced list of sex positive, pro-abortion and queer-affirmative gynaecologists has been added to the whisper network's list of resources across Chennai, Coimbatore, Kochi, Hyderabad and Bengaluru over time, which originally started as a database of a few pharmacies that stocked ECPs. "We've managed to create a small space where those who are looking for ECPs or are going through an abortion have someone to talk to for reassurance, like a virtual friend," says Apoorva Mohan, a Chennai-based activist who maintains the whisper network.

In addition to a helpline, the TWEET Foundation also provides critical support to young trans persons who require crisis intervention, short shelter stay, legal resources, and employment. The counter-community trans and queer individuals have created in the face of lack of medical infrastructure, relies heavily on mutual aid and community-led efforts, activists said.

Almost seven years later, Gupta vividly recalls the experience of isolation during his transition. While he struggled to find answers in time, he hopes their helpline answers more questions concerning sexual and reproductive health. The attempt is to accord trans individuals the space to articulate their dysphoria and vulnerability, and seek help against the ever-lurking threat of physical and sexual violence from their legal families. A sense of urgency rings true in his words, "Trans bodies and queer identities deserve to be treated with dignity in healthcare. It shouldn't be a privilege but a most basic necessity."

*Indicates names have been changed to protect identities.

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