Post the Black Lives Matter Movement, abolitionism and other anti-carceral approaches to justice have made a slow, albeit impactful, comeback to how we imagine our future societies. While this period saw people protesting to stop incarceration and defund the police due to the violence they perpetrated on the African American community in the USA, we saw several other communities across the world resonating with their demands because of their own arbitrary experiences with systems of policing in their institutions. Owing to the way they’ve been forced to survive due to their socio-economic conditions as well as the political atmosphere of the country, transgender persons are one of the communities that led this opposition. In this article, I aim to explore the demand for anti-carceral approaches within the Transjustice movement, with the aim of positing abolition as a viable stance that the community can adopt. In doing so, the article would also highlight certain obstacles that can be encountered while advocating for this approach, attempting to think through ways of resolving them to adopt this stance actively.
As a community, transgender persons have had unfruitful and disturbing experiences with police and other carceral institutions. While one part of this problem lies in the history of policing that has targeted the community in India through a variety of discriminatory laws, the other half of the problem is how transgender persons continue to be regarded as “unruly subjects” who are out of the bounds of the accepted gender norms of the society and who thereby pose “law and order” issues to the state and other concerned institutions.[1] The end result is that transgender persons are extremely vulnerable to violence once they encounter carceral bodies, which could range from misgendering and refusal to accommodate gender needs to abject verbal abuse and sexual harassment.[2] Police, prisons and other carceral institutions have not only failed to aid the transgender community when they face issues but also exacerbated the same issues faced by the community. Therefore, transgender persons have a valid stake in criticising the way police and other carceral institutions in the country function. However, merely criticising these institutions will not change the full extent of harm that the institutions can perpetrate. This might not happen with what often comes as a following step from this criticism, i.e., seeking reforms within these systems to reduce their power. Reforms such as retracting arbitrary laws that direct trans policing or establishing separate wards and procedures for transgender persons in prisons only provide a certain extent of relief to the community. At the same time, the more significant problem of police brutality remains the same.[3] These extremities can only be eroded by a total abolition of the aforementioned carceral institutions and by thinking through alternatives for solving the issues.
Such an approach will allow transgender persons to form solidarity with other communities, such as Dalit Bahujan persons, Adivasi persons and political dissenters who bear the brunt of excessive police brutality in their lives. However, a part of this solidarity would also compel us to examine several other factors at stake within such systems, such as why certain wrongdoings are termed “crimes” in the first place. Which categories are primarily targeted by such “crimes”? Is punishing people by isolating them from society and exposing them to long-drawn, arduous processes within our criminal justice systems worth it, or does it only favour those persons who have the socio-economic resources to escape its complete barbarity? All these questions will invite scepticism and negative answers when seen from the lens of the lived realities of marginalised communities[4]. Punishment as the prime method of our carceral system also falls short of justifying itself when and because the very problems it seeks to address continue to exist in manifold ways despite the person being sent to prison. This leads us to question the viability of categorising certain wrongdoings, which can also include transphobic acts, as “crimes” without studying their causes and positing efforts to whole-heartedly end institutions (like transphobia, toxic masculinity, patriarchy, etc) that inevitably contribute to such wrongs. Therefore, one can also argue that states often adopt the easy, least effort-taking method by positing prisons and other carceral institutions as the end-all of these problems. It is my argument that all these factors should be taken into consideration when thinking about the welfare of and reforms concerning the transgender community.
Such an approach would necessarily involve the community criticising all laws that seek to only half-heartedly address the problems faced by the community, such as Section 18 of the Transgender Persons Act, which criminalises certain wrongdoing against the community. Such an approach would, further, entail the community to think about fruitful ways of solving issues that affect their well-being, good examples of which can be restorative and reparative justice models alongside acts allowing compassionate growth of the perpetrators concerned. It will also require the transgender community to find deeper links with issues faced by persons across different sections of society, thereby making them work towards an egalitarian society that is useful to everyone.
The claims above unveil enough evidence regarding the benefits that will flow from transgender persons, as well as organisations working to help them, in adopting abolition within their activism strategies. Such an approach would not just aid in bringing down the police brutality faced by the community but would also work towards positing solutions for addressing their issues on a larger scale. In doing so, it will bring the transgender movement in tandem with other movements to end systemic discrimination in society (such as Marxism, casteism, patriarchy, ableism, etc.). It will also have far-reaching effects, such as ensuring that the right to equality guaranteed to transgender persons by virtue of the NALSA Judgement is appreciated and exercised to its full extent by community members.
References
[1] Hinchy, “The Long History of Criminalising Hijras,” Himal South Asia, 2nd July 2019.
[2] For personal accounts of this violence, please refer to Dipika Jain et al. “Negotiating Violence: Everyday Queer Experiences of the Law”, Violence & Gender, 7.4, 2020, pp. 141-149 and Sai Bourothu & Arijeet Ghosh, “Existing Beyond Constitutional Rights: Transgender Persons in Indian Prisons”, 2021.
[3] This can be evidenced by social mindsets highlighted in multiple accounts, such as Sukanya Shantha “Misgendering, Sexual Violence, Harassment: What it Is to Be a Transgender Person in an Indian Prison”, accessed at https://www.youtube.com/watch?v=cy3T-B3PX-k.
[4] For a more profound elaboration of these questions, please refer to Angela Y. Davis, “Are Prisons Obsolete?” New York: Seven Stories Press, 2003.
Sudhasri Yadavalli is a law student at O.P. Jindal Global University.