Abstract
Indian society is multicultural in nature, the diverse socio-cultural and the political factors operating within the society usually create some sort of norms, establish dominance, identify normality and simultaneously create the ‘other’. The other is not a monolithic singular identity, rather it is multiple identities associated with caste, class, gender, religion, etc. The female gender is entangled to multiple layers of power/powerlessness that makes a group of women more vulnerable than the other. While some like sex workers face exclusion because of their disclosed identity, non-recognition of any particular identity can further exclude a group of people. This article analyses how identity formation is an out product of social, political and legal construction. It explains the process through which the state contributes towards social exclusion pertaining to gender, work and sexuality.
Introduction
A multicultural, multilingual and multireligious society always creates norms, identifies some sort of normality, establishes dominance of a sect and simultaneously identifies a group of people who are out-casted and considered as other. In the Indian society, where a Hindu Brahmin is considered as the dominant or high caste, 1 dalits, schedule tribes and Christians are identified as the out-caste or the other. The patriarchal society, hence, establishes the normality of manhood and creates masculinity as the order and female are treated as the other (de Beauvoir, 1949). The society also, in the process, legitimises the gender binary which is considered to be normal and natural. Normalisation further being constructed, heterosexuality as against homosexuality is perceived as natural and normal. Such notion of normality justifies biology as destiny and such normality is taken as inescapable or allows very little or no room for any alternative choice (Butler 1990, p. 56). In patriarchal society, the transgenders 2 being vulnerable face several socio-economic problems in the society.
The out-caste community or other confined to a particular identity such as caste, ethnicity or gender is also not uniform in nature. But it permeates to diverse socio-cultural structure associated with a particular identity. Hence, the other associated with, let’s say, gender does not remain confined to a coherent uniform form of social exclusion, rather it remains associated with multilayered and multiple vulnerabilities or multiple sense of social exclusion. A female may face several kinds of vulnerabilities or exclusions than just being considered as a subordinate gender. Therefore, a woman could be entangled to multiple layers of social exclusion and multiple levels of powerlessness that makes a group of women stand at a particular layer of vulnerability than the others. When a person faces multiple vulnerabilities, hers exclusion produces grimmer outcomes than a woman having single or double or triple vulnerability. For example, a woman who is poor, dalit, engaged in socially ostracised dirty work such as scavenging, and sex work may face multiple layers of vulnerabilities than an upper-caste woman who may face just one kind of powerlessness related to gender. The subjectivity of a woman is found as embedded socio-culturally. 3 Moreover, otherness is then not always associated with subalterns. A Brahmin woman, even being at a higher level of social order may face a sense of humiliation because of choosing a particular profession like sex work. However, an already powerless woman who is poor and dalit is more likely to face a greater sense of vulnerability than a middle-class or rich or middle-class Brahmin woman.
In an Indian society, a women’s body performing on everyday basis is associated with notion of purity versus impurity. She undergoes the process of normalisation 4 on day-to-day basis. A female also face several types of stigma and discrimination in her lifetime. In all such cases, her body and sexuality is accused of being associated with pollution, diseases, dirtiness, impurity and death. The body of the transgender also undergoes the everyday live experience of exclusion. They are stigmatised through expressions, verbal abuse and at times treated as untouchables. They are often compelled to pass through the normalisation procedure medically and sociologically in order to fit into the gender binary norms. If normalisation through medicine remains inaccessible or unacceptable (by some of the transgenders themselves), they face everyday experience of otherness.
The questions that are addressed in this study are, Who creates the otherness? How the socio-cultural forces discriminate a category of population and create or construct the other? And most importantly, How the state governmentality 5 also may become instrumental towards constructing the other and discriminating a section of people within the society?
Methodology
For the study, we have relied on both secondary as well as primary observation and interview. We have analysed policy documents and legal documents. Total 32 sex workers were interviewed through the snow-ball samplings from Karnataka out of which seven people were transgenders. Most of the female and transgender sex workers were street-based sex workers. In-depth interviews and narratives of sex workers were recorded on different issues pertaining to their life. In addition, three key informants from the NGOs, namely, Vijaya Mahila and Arunodaya were interviewed.
During interview, ethical guidelines were followed and in most of the cases, the identity of the respondents were kept hidden. In a few cases, their names were revealed as the respondents wanted their names to be spelled out in the study.
Society and Gender: The Construction of the Other
The female body passes through the canvas of the desirable and undesirable, purity and pollution on a regular basis. A woman’s body is either temporarily, regularly or permanently levelled as undesirable 6 dirty, polluted, result of sin, or seen as a curse. Therefore, the sense of purity has a strong link with normal as against the impure ones. For example, when women menstruate, during that period her body is treated as impure and the other. The sense of otherness expressed through shame and taboo is normalised on a monthly basis (Burrows & Johnson, 2005; Jackson & Falmagne, 2013; Mason et al., 2013). Riessman (2000) has mentioned that menstruation is perceived as an illness. The socially recognised temporal impurity is often supported by the religious and cultural practices. In almost all the states of Indian society, women are debarred from performing religious activities during their regular menstruation cycle. Women’s body and creation of normality is also often perceived in terms of their relationship with man. If a woman is married is often expected to be faithful to her husband and is not allowed for adultery whereas the society to an extent tolerates sexual promiscuity of men (Bhasin, 1993). A widow’s body is perceived as meaningless and impure of losing its relationship with a man, and in the context of India, she face several types of discrimination (Stein, 1988). Her body becomes impure and untouchable to the extent that even her shadows are not allowed to fall upon on any auspicious occasion like marriage. Therefore, her body becomes impure or the other not because of her existence or own anatomy, rather, because of her relation to an other anatomy. This rigidity associated with a woman’s body makes her feel other in her day-to-day life.
The female body also acquires different meaning because of her relation or association to a particular community in the society. Women bodies having taken birth in a dalit family or community is considered as dirty and untouchable as against the Brahmins, as the right to perform the rituals of Hindu god always has been the privilege of Brahmins (Ghose, 2003). Here, their dirtiness of a dalit body is not merely based on the basis of the caste-based labour division which may associate them with the work of scavenging but also because of the socio-cultural practice and value of the purity and piousness associated with dominant versus a dalit caste. 7 A woman born to a Brahmin family is expected to perform more rigid gender norms and so called pious practices. Women’s body regularly passes through the canvas of the purity and pollution, both on regular basis and also periodically. Such rigidness 8 associated with the notion of purity differ from one group to other, time to time and across places even within India. When the poor dalits (both men and women) bodies serve as cheap, available labourer, dalit women specifically are often considered as easily available bodies, remain subject to sexual suppression and rape by the so called higher-caste (Rao, 2013, p. 37). In an Indian society, a woman who is poor, dalit or a poor Muslim face greater sense of otherness as against the dominant upper-caste and upper-class population.
The ‘work’ can be defined as economic engagement of a person or providing labour for the exchange of monetary or material gain. The economic sphere of work is basically socio-culturally constructed. The notion of work is rather the conglomeration of the economic ideas (labour, exchange and value) and the socio-cultural parameters (caste, religion and gender). Such construction is dependant both on the economic return of a work as well as the social perception related to the particular work. For instance, a cobbler’s work is never given equal importance as against farming. Certain works are also considered as evil or dirty works, for example, scavenging, sex work, etc. Moreover, the work done by a chandal (the community named differently in different parts of the country are the people who burns the dead bodies of human being in the funeral fires) is considered to be evil.
The sense of otherness is not merely confined to the lower-caste, ethnic groups, minority community, class and women, the community of transgender also face high stigma and discrimination in the society.
Society, Transgender and Non-recognition
The community of transgender is not homogeneous, rather is different in class, caste and background. 9 The recent usage of term ‘transgender’ an encompassing term that could be used to describe a wide range of identities and experiences, including inter-sexed individuals, transsexual individuals, male and female cross-dressing (sometimes referred to as ‘transvestites’, ‘drag queens’ or ‘drag kings’), and men and women, regardless of sexual orientation, whose appearance or characteristics are perceived to be gender atypical.
Transgender people have existed in every culture, race, and class since the history of human life. The moment a baby is born to any parents and if the sexual organs of the child are found unclear, then parents curse the baby, their own fate and also look forward to change the sex of the baby through medical help. However, if the sex change of a transgender cannot be done due to reasons like poverty, parents then compel the child to go through their childhood and puberty in disguise, and also compel them to hide their bodies. Only a few manage to come out of that concealment and survive with an identity that they are really born/identify with. Many a times in order to hide the identity of the body, they are encouraged to discontinue their education or drop out. If the identity of the person is disclosed at any sphere by any means, the disclosed status of the transgender body remain subject to discrimination and humiliation. There are many transgender children who discover a problem of finding coherence between the body they are born with and the psychological and emotional feelings and behaviour they opt or prefer. In such case, they may explore their gender, sexuality relatively at a late age. In that stage, they may or may not either reveal their status to their family member. If they reveal it, they often face rejection. A large number of transgenders after the disclosure of their gender are disowned by their own family members and generally they choose to stay within the community of transgender known as ‘hijras’. However, there are some transgenders who live individually and independent of any community. The transgender are stigmatised by society as objects of shame, fear and mockery.
Foucault’s (1987, pp. 7–12) three propositions such as ‘dividing practice’, ‘scientific classification’ and ‘subjectification’ related to the process of the subject creation and the social control could be reference points for construction of the identity of other. Dividing practice is one of the ways though which social control is usually established through social exclusion; he has focused on how poor, lepers and insane faced social confinement and were pushed to some specific geographical area. Similarly, any person who is a transgender or a sex worker (gender status is revealed/or known) also face the similar experience of dividing practice and face isolation, rejection, and usually end up in confinement to red light area or a few transgenders to hijra community. A human being as a subject to the process of objectification also remains subject to ‘scientific classification’, for example, all the transgender community also usually get the homogeneous connotation of transgender or ‘third gender’. In addition, the body of the transgender become subject to close scrutiny by the general mass and especially the medical community to identify and normalise as per the gender binary norms. If adequate boundaries remained blurred, then the body undergoes surgical or other medical treatment. Even the body of the sex workers are perceived as the vectors of HIV and hence, remain the site of surveillance, control and medical observation.
Third, Foucault argues that a human body goes through ‘subjectification’, the process by which a human being turns himself or herself into a ‘subject’. In case of first two cases mentioned above, the persons are put into cells in a passive constrained position. The subjectification through self-formation has a long and complicated process; through various operations on one’s body, on their own soul, on their thoughts and on their conducts, makes itself a slave of a particular idea or treats itself as ‘other’. In such case, a human being do not easily realise their own agency, and/or lose confidence to be different. The worldview of the person of the transgender often self-created (due to deep socio-cultural embodiment) to the way that the self of the transgender finds itself as ‘other’. The process of subjectification has close link with ‘dividing practice’ scientific classification and social stigma.
State, Law and Identity of Otherness
The state, while working through legalities, institutions and state personnel, hold immense power in constructing and deconstructing the other. The legal binaries of legality versus illegality determines the normal versus the other.
The transgenders are deprived of equal participation in social and cultural life, shunned by family and society, and have restricted access to education. They have less access to health services and public spaces as well. They exercise limited civil, political and economic rights such as right to marry, right to contest elections, right to vote, employment and livelihood opportunities and so on. The life, citizenship, and the identity of the transgenders transit between legality and illegality of civil and criminal law. For a long time till 2013, the transgenders were not recognised as different gender identity but as a non-recognised community, were treated as a legal non-entity and were not covered under Articles 14, 15, 16 and 21 of the Constitution of India. As far as their existence, identity and recognition as a different gender is concerned, it was recently in April 2014 that the Supreme Court of India has identified them as third gender. However, at the same time, their sexuality was not recognised and homosexuality continued to be considered as abnormal and illegal under the 377. It derecognised the homosexuality and the sexual orientation of the transgender. A close interpretation of the act also makes sex work by transgender (often is homosexual) as a profession, illegal or abnormal.
The Indian Penal Code 377 and a Constrained Sexual Life
The IPC 377 reads:
Of unnatural offences: whoever voluntarily has carnal intercourse
10
against the order of nature with any man, woman, or animal, shall be punished with imprisonment of either description for a term which may extend to 10 years and also be liable to punishment of imprisonment and fine.
The definition of ‘unnatural offences’ is obsolete. It invites questions like ‘what is the order of nature?’ It leaves to the discretion of any particular bench of judges to interpret the order of nature. In past, under ‘order of nature’, sex was socio-culturally perceived as a means for reproduction, but in the contemporary time, ‘under order of nature’, sex is often seen both as the means for pleasure and reproduction. Similarly, in the Indian society, heteronormativity is usually interpreted as order and homosexuality as against the nature or other. This section has potentiality to target sexually minority populations as they are erroneously seen as the population engaged in carnal intercourse termed as ‘against the order of nature’. The act introduces and implements a new sense of morality, a morality that denounces many forms of intimate relationship based on the consent of the adults, could be decided by the judges falling within the definition of ‘carnal intercourse against the order of nature’.
In India, there has been a constant demand and pressure made by the group of homosexuals and the transgenders towards the amendment of the IPC 377. In 2 February 2016, a curative petition had challenged the court’s judgement delivered in 11 December 2013, when it had upheld Section 377 of the IPC which criminalises ‘carnal intercourse against the order of nature’. A three- judge bench of the Supreme Court comprising the three senior judges on the court—Chief Justice T. S. Thakur, Justice Anil R. Dave, and Justice Jagdish Singh Kehar set to hear curative petitions that have been filed challenging the Supreme Court’s decision in December 2013. If the case is dismissed, opponents of the law will have to wait until a fresh case is filed in the courts.
However, it is essential to understand that by denying the right to sexuality, the state acts as a tool towards annihilating human rights. The state legal system also follows a narrow and pretentious approach towards understanding the contested sphere of homosexuality. The possible problems which could occur because of non-recognition of the sexuality of transgenders is that it would not address the sexual violence and other form of violence persisting within the sphere of homosexuals. 11 Hence, violence within intimate relationship and partners and the possibility of rape and sexual harassment within the homosexual sphere of relationships will never be a legal concern in the state. This would violate the constitutionally protected right to privacy under the expanded definition of right to life (Article 21) and right to privacy assured by the Supreme Court of India in 2017. 12 On 6 September 2018 the Supreme Court of India issued its verdict and ruled out the IPC Section 377 as unconstitutional and legalised homosexuality. However, some laws continue to be biased to transgenders and the socio-economic position remains abysmally low and has not changed after the legalisation of homosexuality). 13
The State and Other Forms of Civil and Legal Discrimination
The defence sector of India, especially the army and navy under different sections like Section 46(a) could discriminate transgender and could sack a person, if found to be not normal as per the social normativity. The economic and legal rights and benefits available to heterosexual marriages are restricted for homosexuals. Same-sex couples are deprived of several rights, the right over common property and inheritance, and custody, maintenance and adoption rights. Homosexual relationships are not recognised, when it comes to defining the family led by two transgender or same-sex person, insurance claims, compensation under the workman’s compensation act are not normally applicable to them.
There have been several incidences where the state public authorities were found discriminating transgenders. A young athlete in Tamil Nadu, daughter of a municipal conservancy worker, got selected to the police force. Within few months, following a routine medical examination, her inter-sex condition was revealed and the young woman was dismissed from the police force for which she had all other qualifications. In India, the best known case of such discrimination was that of Santhi Soundarajan from Tamil Nadu, who won the silver medal at the 2006 Asian Games in Doha. Following questions about her gender and medical tests that merely confirmed her intersex condition, her medal was taken back (Swamy, 2012).
Majority of the transgender population is uneducated or undereducated. Along with teachers’ apathy within a classroom setting, exclusion from society, poverty, violence are some of the important factors that attribute to the poor participation of transgender in educational activities. The average qualification for a transgender is secondary (matric) or senior secondary level. The enrolment is significantly low and dropout rate at the primary and secondary level is still very high. As highlighted by Government of India’s (2013) report, there is an urgent need for addressing the community concerns in education sector in a holistic way while giving attention to the four core issues of access, equity, enabling environment and employment.
Transgenders face discrimination in housing and jobs that affect their ability to ensure health care (Marks, 2006) for themselves. HIV prevalence among men having sex with men (MSM) populations was 7.4 per cent as against the overall adult HIV prevalence of 0.36 per cent. Until recently, transgender people were included under the category of MSM in HIV sentinel sero-surveillance. Recent studies among transgender (TG) women have indicated a very high HIV prevalence (17.5% to 41%) among them (UNDP, 2010). There is need of trained and sensitised public health care providers for carrying out sex re-assignment surgery. In addition, there is an equal need for the community friendly services for addressing general health and sexual health issues for transgenders, free of stigma and discrimination. Since transgenders are prone to several health risks, they need to be provided proper medical facilities, including health insurance and clinics, where free or subsidised treatment should be made available to them (Government of India, 2013).
The national health policy has no reference to health of transgenders. The National AIDS policy addresses MSM as one of the vulnerable to risk groups. The policy is applicable partially to sexual health of transgenders and avoids addres- sing overall health of transgender (Government of India, 2013). It also does not mention the difficulties like discrimination faced by the transgender even while accessing health care for any common health problems.
However, it is equally pertinent to note that recently, a few state governments within India and the central government also have been taking some steps towards inclusion of transgenders. The 2011 census counted transgender persons, for the first time separately, instead of including them within the ‘male’ category as was done earlier. The Aadhaar card, recently has a column for transgenders. The Delhi Election Commission has been organising registration camps for marginalised sections, including transgenders. Karnataka’s state transport department has included an ‘others’ box in the application for a driving licence. Tamil Nadu has been the pioneering state towards providing citizenship to third gender. A Transgender Welfare Board in Tamil Nadu has also been developed but their acceptance by society as an equal sex still remains a far cry (Mukherjee, 2013). The University Grants Commission has also come up with the direction of inclusion of third gender in higher education (Deccan Herald, 2014). The government of Karnataka drafted the state policy for the transgender. This is followed by the state of Kerala which introduced the policy on transgender in the year 2015. It aims at provisioning the barrier-free access of education, employment and education to the transgender community. The above mentioned initiatives are recently taken by the state and central governments but the prevalence of the discrimination against transgender still remains very high in the society.
Transgender Sex Workers and the State Law—A Case Study of Chandini
Chandini (she calls herself), a transgender sex worker, 32 years old migrated to Bangalore in search for a job from Mangalore. She had no clue how to survive and what to do. During her search of job in Bangalore, she met another transgender fellow who suggested her to opt for sex work. Initially, she continued searching for a job but when she failed in getting one, she continued surviving on sex work. Over the period of time, she got used to sex work and even stared liking it.
Chandini stated that the work was very volatile, at times, a few customers did not pay her and some paid very less, some become intolerably violent. Yet she had no one to complain to. She also expressed how she used to live under a constant threat of the police and how she felt insecure everywhere, including at her home. She mentioned that they (transgender sex workers) were more vulnerable in comparison to the female sex workers (FSWs) as they could be picked up at any time under the IPC of 377 and Immoral Trafficking Prevention Act (ITPA, 1986) 14 and can be tortured. However, a FSW could be subject only to ITPA (one of her friends who was a transgender had made her cautious about the policy and the acts which can be applied against the transgender). Most of her friends those who were detained by the police at some point of time faced several physical and psychological violence. The police often used to ridicule at the transgender. One day she was forcefully undressed and checked thoroughly by the policemen. She said her life remains at the point of the surveillance by the state police. She stated further that people who practised homosexuality even in the private sphere were seen as criminals. They had no right to sexuality. She lived under constant fear of detention as she was practising homosexuality and sex work, which were illegal practices in the eyes of law.
The case study mentioned above indicated multiple vulnerabilities faced by the transgender sex workers; it indicated further, the transgender community lived under constant threat due to the stringent, inconvenient legal system and state personnel like the policemen.
Sex Workers, the State Laws and Policies
Sex work is the exchange of sexual services for reimbursement or material gain. Over the last four decades, sex work has been one of the prominent socio-economic affairs especially in some South Asian countries. According to Lim (1998), the scale of sex work has increased to such an extent that it can even be called ‘commercial sex sector’. Sex workers’ community is not homogeneous. They belong to different gender (female, transgender, male), class and religious lineages to the extent that a large section of them are women, a majority of them are poor and in the profession driven by poverty (Kala & Baru, 2013; Sariola, 2010). Some women are forced to do sex work by their family members for regular income of their families (Joardar, 1984). However, only a few of them are from lower-middle class and middle-class and hence choose the profession. Similarly, there are diversities of status associated with different sex workers. Most of them are brothel based, and street based (independent), and the rest are escorts (either operate independently or operate through pimps). Sex workers from different categories are either forced to the profession or choose the profession. The ILO had reported that the commercial sex work provides substantial economic gain to people who are either directly or indirectly related to the sex work. For instance, people such as brothel owners, workers, pimps, shopkeepers, and even the police generate money or earn money because of sex work. In India, sex work is a survival mechanism for many to cope with poverty and unemployment. The work is also seen as a compensatory measure to a failure of welfare policy or the income generation or maintenance programme (Frederick, 2000; Lim, 1998).
The laws, one of the state machineries, have been historically responsible for mistreating sex workers and considering the sex workers’ identity as other. During the colonial period, the Contagious Act, 1864, introduced by the British in India is an example where the realm of legality got translated to the banning and confinement of sex workers (Mridula, 2002) to a few areas. 15 Sex workers during the colonial time were blamed to be responsible for the sexual contaminated diseases and thus their movement and freedom was restricted through the law. Even long after colonial rule, the sex workers in the current times are also perceived as the vector of the sexually transmitted disease. The state machineries such as policies, programmes, projects, in order to control sexually transmitted diseases and especially to control HIV/AIDS, target sex workers as the vectors of the sexually transmitted diseases and HIV/AIDS. In the process, the state has taken several measures. For instance, the state has been intending to identify all the sex workers through surveillance systems, undertake counselling and distributes condoms to the sex workers. This is done to ensure that the customers who visit the sex workers do not get contaminated with sexually transmitted disease. 16
Legally, in India, a woman can opt for sex work based on her own choice with the observance of some restrictions, as mentioned by law. The primary law dealing with sex workers in India was the Suppression of Immoral Traffic Act (SITA) of 1956. This law, which was amended to become the ITPA Act 1986, does not criminalise prostitution or prostitutes. However, it punishes sex work if it is intervened by third parties and facilitating prostitution through maintenance of brothel. Moreover, solicitation of customers and sex work in the vicinity of public places are prohibited under law. The ITPA was further amended in 2006 to prevent harassment of the sex workers, who are to be treated as victims, to change the definition of child from 16 to 18 years old, and to enhance punishment for the offence of detaining a person on a premise where prostitution is carried out (Swamy, 2012). 17
The oscillating conditionalities associated with the law make sex work both legal and illegal under different situations. This swinging illegality makes the work and the identity of the sex workers as other and it also make the sex workers subject to violence. The wavering of the legal binary (legality or illegality) of the sex work provides space for violence against the sex workers vindicated through the police torcher, harassment and imprisonment. Since the line between the legal and illegal sex work is very thin, it succumbs the sex workers to the will of the policemen to decide if it could be tagged as legal or illegal. During the time of interviews with the sex workers in Karnataka, especially the street-based sex workers, they complained that the police have the authority to the extent of directing their freedom or imprisonment. If they do not bribe policemen, then they are taken to the police custody and alleged to be soliciting in public (bus stand), they are tortured by the policemen and the price to be free from custody then becomes more expensive. 18
The State and HIV/AIDS: Transgender and Sex Workers
The focus on sex workers became prominent during the emergence, and development of the discourse of HIV/AIDS. Followed by the sex workers, the transgenders as a community that practices homosexuality also got the visibility of its existence in the context of the HIV/AIDS discourse. The disease is projected to be associated with all sorts of activities which are not generally perceived as normal. It is seen associated with homosexuality, pre-marital/post-marital sex with out-casted women, that is, sex workers. Some of these so called abnormal and unnatural practices are often also forbidden by law. As far as the role of the state towards transgenders and sex workers in the context of HIV is concerned, it has been paradoxical and changing in nature. During late 1980s, when the disease was at an initial stage, the state of Tamil Nadu imprisoned some HIV positive sex workers. However, such an authoritarian initiative taken by the state has been definitely changed, with the change of time, yet the approach of the state towards sex workers have not drastically altered. One can locate several maladies associated with the state towards addressing sex workers and homosexuals, which, in turn, has increased their vulnerability and has helped in creating and emphasising the sex worker’s identity and the identity of the transgender as other. The Indian state has been focusing on the target-specific approach towards controlling and combating HIV/AIDS through the sex workers community. Along with that, a few new categories of others like the homosexual, women and eunuchs sex workers were also targeted under this ground. In the process, at one hand, it address their health issues but simultaneously remains silence towards understanding the totality of the problems faced by sex workers and transgenders.
There are two spheres of sex workers’ operation, that is, one is the legal sphere and the other is the illegal. The illegal sphere is more oppressive and the chance for ill treatment of the FSW is more in this sphere, where a sex worker remains subordinate to the pimp, the brothel system and many other actors. Particularly, sex workers who were trafficked and were forced to adopt the profession, remain very much vulnerable towards infection and violence. From our sample, 11 out of 25 were women and girls who were trafficked and were compelled to remain in the profession. The state, however, has hardly taken enough action to control trafficking or curb forceful sex work. In one of the cases in Karnataka, a 16-year-old girl named Laxmi (name changed), mentioned during the interview that because of abject poverty, she unknowingly got herself engaged in sex work at a very tender age of 13 and she was indeed forced to continue the sex work. She said it was very painful for her as she used to bleed many a times, yet no one gave any attention to her misery. One day, due to the police raid, she was taken to the police station where the police personnel decided to hand over her to Bangalore police. Thereafter, in Bangalore, she met some people from an NGO and she was relived. However, after her rescue, her blood test was done with the help of the NGO and she was found to be HIV positive. Currently, she is under medication and working as an office assistant.
Sex workers both female and the transgenders are powerless to the extent that it remains difficult for them to negotiate for usage of condom. Second, in the process of sexual intercourse, they face several kinds of violence (in the middle of the sexual contact, some drunken customers remove condom and engage in violent sex, creating hurdles for the sex worker to retaliate or negotiate the person at that point of time). The state and legal system hardly discuss the issue of violence faced by sex workers while having physical relationship with customers. Ratna, a 23-year-old sex worker (street-based sex worker) from Karnataka said that at times, some drunkard customers become violent to the extent that they beat her during sex. The constructed identity of otherness brings with itself vulnerability and violence for the out-casted people by the society and the state. FSWs like the transgender sex workers usually face violence by police as well.
Conclusion
Recognition or non-recognition of any gender contributes towards the construction of the identity of a gender. The other is not a monolithic singular identity rather is associated with multiple identities such as caste, class, gender, religion, etc. The other confined to a particular identity lets’ say with gender is also not uniform in nature but it may permeate to diverse dimensions of multiple vulnerabilities or multiple sense of otherness. Women face otherness when they are associated with socially ostracised dirty work like scavenging or sex work, are treated as other.
The state while working through legalities, institutions and state personnel hold immense power in constructing and deconstructing the other. The legal binaries of legality versus illegality determines the normal versus the other. The Indian state did not recognise the transgenders for a long time, there are several legal provisions that out-caste the transgenders. The Indian central and state governments have started taking some steps towards inclusion of transgenders, but merely legal rights do not necessarily translate into social and cultural acceptance, and do not automatically lead to recognition by the various state and non-state agencies. The oscillating conditionalities associated with the law make sex work both legal and illegal under different situation. This swinging legality makes the work and the identity of the sex workers as other and it also makes the sex workers subject to police violence. The policy, programmes formulated by the state towards sex workers and the transgenders in the context of HIV/AIDS further justifies their identity as other. The constructed identity of otherness brings with itself vulnerability and violence for the out-casted people by the society and the state.
A multicultural society, such as India, needs to be based on the ethos of the egalitarianism by fully recognising the identity of the transgenders and ensuring the rights of sex workers and transgenders such that they could leave a violence-free life.
Declaration of Conflicting Interests
The author declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.
Funding
The author received no financial support for the research, authorship and/or publication of this article.