The Madras High Court has extended an invitation to Intersex activist Gopi Shankar Madurai to participate in the upcoming Juvenile Justice Committee (JJC) and Protection of Children from Sexual Offences (POCSO) Committee meeting. The meeting, scheduled for 25 April 2024, at the Madras High Court Auditorium, will be attended by Senior Judges, District Magistrates, Senior State Bureaucrats, and officials from UNICEF.

Gopi Shankar Madurai is expected to present a mandate urging the inclusion of infants and children with diverse Gender Identity, Gender Expression, and Sex Characteristics (GIESC) identities in the policies related to the Juvenile Justice Law and POCSO Act. This meeting will witness the delivery of a wide range of recommendations aimed at enhancing the protection and rights of children with diverse GIESC identities.

In 2019, Gopi Shankar Madurai presented an official report to the United Nations Committee on the Rights of Persons with Disabilities (CRPD). In response, the UN CRPD committee recommended that the Government of India expand the scope of its present policy regime concerning Intersex infants and children, as well as LGBTQ+ individuals with disabilities, including autism.

The recommendations put forth by the UN CRPD committee include:

1. Amendment and implementation of the Government Order by the Director of Medical Education to ban unnecessary medical interventions on Intersex infants and children, along with the formation of an Apex committee involving senior Intersex activists.

2. Usage of the term SOGIESC (Sexual Orientation, Gender Identity, Gender Expression, and Sex Characteristics) instead of LGBTQ, acknowledging the problems associated with using the term LGBTQ for infants and children in India. Highlighting the difference between Sex and Gender identity.

3. Inclusion of Intersex infants and children in the forthcoming census, as well as changing the name and mandate of NCTP to include diverse GIESC infants and children in India.

4. Formation of a scientific panel to study necessary and unnecessary medical interventions on Intersex infants and children, including the inclusion of Medical Geneticists and the concept of genetic counseling in the process.

5. Formation of a High-level State Panel to study the condition of Intersex infants and children and GIESC children in Tamil Nadu and Puducherry. The costs for this study can be supported by the Tamil Nadu State Government and UNICEF-like organizations.

6. Publishing a handbook and guide on Intersex infants and GIESC children in English and Tamil languages for the usage of the Juvenile Justice Committee in Tamil Nadu and Puducherry. This initiative will be funded by the State Government, including Intersex activists.

7. Formation of a Scientific Advisory Panel for GIESC infants and children to advise the Madras High Court, Juvenile Justice Committee, and Juvenile Justice Board, among others.

8. Establishment of rehabilitation and prison facilities for Intersex and GIESC infants and children, including persons with diverse disabilities.

9. Introduction of exclusive grievance mechanisms with helplines for the National Commission for Protection of Child Rights (NCPCR) and other concerned statutory bodies dealing with diverse GIESC infants and children in India.

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Feature Image Credits: Sahapedia

The ongoing petition in the Supreme Court on recognising “same-sex marriage” reflects the lack of conceptual understanding and difference between “sex /sex identity” and “gender /gender identity”.

The recognition of the existence of transgender or any other gender apart from binary gender as “third gender” was made in the famous decision of NALSA v. Union of India.

Following the same approach, if the Supreme Court recognises “same-sex marriage”, it will only be limiting the civil rights of marriage to cis-lesbians and cis-gays, leaving out people with diverse sex characteristics, including intersex persons, and gender variant identities.

While understanding GIESC (Gender Identity and Expressions, and Sex Characteristics), it is pertinent to note that sex characteristics and gender identity are different concepts and cannot be used interchangeably.

Being Intersex is a ‘sex characteristic’ and not a gender identity. Intersex people are are individuals who are born with sex characteristics that does not fit the binary definitions of male and female anatomy. These variations in sex characteristics could be variations in genitals, chromosomes, gonads or sex hormones. A person with intersex variations can be a ‘transgender person’ too, but Transgender may not be Intersex.

It is imperative that the Supreme Court and the Government of India recognise the existence of people with intersex traits (including intersex infants and gender non-conforming children), because it is not objectively possible to uphold the civil rights of persons with diverse sex characteristics without recognizing them (making them visible).

Till now, there is no specific data on the intersex population (including intersex infants and gender non-conforming children) available in India. The last Census of India (2011), only recorded the “Transgender persons” population, and that too under the ‘sex’ column. Unless and until we have clear data on a population of persons with diverse sex characteristics which is non-heterogeneous, it is not possible to frame or adopt effective policies for them. The current Census Schedule provides an option for “transgender” in the “sex” column for persons who do not fall under the binary male and female.

The primary understanding of persons with diverse sex characteristics is uprooted with the underlying meaning of male and female. There are no legal aspects to detail what constitutes a male and a female. The Registration of Births and Deaths Act, 1969 does not outline what is male and female. The Constitution of India mentions the term “sex” in Article 15, but there is no use of the term “gender”.

The term “sex” in the Constitution of India needs to be interpreted recognising the existence of persons with diverse sex characteristics. The biggest paradox here is that even without any legal parameter for what constitutes male and female, the Court and the Government of India went on to define the definition of “third gender” and “transgender persons” respectively.

Furthermore, there are no medical protocols to regulate the performance of a medical surgery to normalise the sex identity of intersex infants and gender non-conforming children. In 2019, the Madras High Court in the case of Arunkumar and Ors. v. IG of Registration, inspired by the advocacy of Srishti Madurai on the rights of intersex infants, imposed a ban on unnecessary medical intervention with intersex infants in the State of Tamil Nadu and directed the Tamil Nadu government to pass a legal order. Subsequently, the State of Tamil Nadu became the first state which provided a legal regime banning sex-selective surgeries with intersex infants. Now,  a nation-wide ban on unnecessary medical intervention with intersex infants is the need of the hour.

This judgment not only recognizes the plight of intersex infants but also upholds the inter-caste marriage of transgender persons. It highlights the existence of the marriage rights of gender variant persons in Hindu traditions, such as the Koothandavar Temple in Tamil Nadu, which represents the marriage of Aravan and Krishna. Also, gender-specific sacred spaces are respected in Hindu civilization which acknowledges the existence of persons with diverse sex characteristics.

The established jurisprudence by the Apex court on “third gender” has led to fallacies to further recognition of persons with intersex variations. For instance, in Nangai v. The Superintendent of Police, the Madras High Court relied on the NALSA judgment to treat an intersex person as “transgender person” and granted rights. This reflects ignorance of the existence of persons with intersex variations. Some High Courts have tried to uphold the rights of intersex persons. The Delhi High Court in Faizan Siddique v. Sashastra Seema Bal invalidated the decision of Sashastra Seema Bal denying the candidature of Faizan Siddique as Constable (GD) female on the ground of intersex traits.

But this does not mean that the Government of India or the Supreme Court recognizes the existence of intersex persons as individuals. Santhi Soundarajan, a female athlete with intersex traits, and the first Tamil Indian to win a silver medal in the Doha Asian Games (total 11 international medals), was devastated when suddenly told she does not pass the gender test. Her silver medal was taken back and the Government of India didn’t even defend her on the international circuit. She was compelled for a time to work as a daily wager for survival.

The absence of Government support and recognition of the rights of a female international athlete with an intersex variation, who had made India proud, pushed her into a corner; she even attempted to end her life. There are several other athletes with intersex variations who have suffered unheard; their bodily existence is itself in question. These intersex persons are living with a question mark over their recognition and existence and the same is impacting their day-to-day activities. It is the duty of the Government of India to recognise the existence of persons with intersex variations and to protect them.

The lack of recognition of the intersex population, including intersex infants and gender non-conforming children, leads to irregularities in laws. For instance, the Government of India adopted the Transgender Persons (Protection of Rights) Act, 2019. The definition of “transgender person” as provided in Section 2 (k) of the Act, traces its roots to NALSA v. Union of India, and defines gender identity and expressions and sex characteristics as “transgender persons”. This definition is not scientifically correct and intersex persons cannot be included under the umbrella of “transgender persons”.

Even the Central Adoption and Resource Authority (CARA) under the Ministry of Women and Child Development does not recognise the existence of intersex infants and gender non-conforming children. The CARA records the adoption of gender non-conforming children as the ‘hijra child’.

Not every subject of the state needs to reach the court for recognition. The tribes living in Andaman and Nicobar, like Sentinelese, are not even aware of their rights or status, but these are recognised by the Constitution. The point we want to make here is that the existence and recognition of intersex infants and gender non-conforming children should come from the Court or the Government as a suo motu action; they should give recognition and agency to this voiceless group.

Considering the present issues of same-sex marriage, the Government of India’s proposal to form a committee to address the issues of the community is not sufficient. India is a nation with myriad indigenous traditions and diversity. As a host of G20, India must make the nation more inclusive and closer to its traditional/indigenous roots.

We propose that India’s current National Council for Transgender Persons (NCTP) formed under the Transgender Persons (Protection of Rights) Act, 2019, having representatives from across the nation, should be re-constituted as National SOGIESC (Sexual Orientation, Gender Identity and Expressions, and Sex Characteristics) Commission with a broader framework and powers to address grievances.

The Government should establish an independent body such as a Centre for SOGIESC Studies to offer regulatory, advisory and policy-making functions in matters related to Sexual Orientation, Gender Identity and Expressions and Sex Characteristics. The civil rights of marriage of people with diverse sex characteristics can be routed via this independent body. In fact, the Government can pass separate legislation specifically to provide the civil right of marriage to persons with diverse sex characteristics under Hindu traditions without intervening in the right of marriage of heterogeneous populations under the Hindu Marriage Act, 1955.

Even the instances of performing the customary rites of Hindu marriage for gender non-conforming couples by the Hindu priests is a not a new phenomenon. For instance, a Hindu priest by the name of Raja Gopal Bhattar has officiated more than 20 marriages of gender non-conforming people via Hindu marriage rites and ceremonies. On being asked about the ceremonies and acceptance, the priest clarified that the Hindu traditions accepts and recognise the gender non-conforming couples and the hence the marriage is right and just.

If the Supreme Court moots recognition of the right of marriage, it should recognise this right for non-heterogeneous marriage (not excluding people with diverse sex characteristics) and accept the same under Hindu Personal Laws. Hindu traditions are the valid proofs and reasons for the acceptance of non-heterogeneous marriage rights for people with diverse sex characteristics and sexual orientation.

Gopi Shankar Madurai is the first openly intersex statutory authority with the Government of India. Inputs from advocate Vijay Mishra, human rights researcher and Coordinator of the Intersex India project. 

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In a shocking incident, Gopi Shankar Madurai, an intersex activist and the south representative of National Council for Transger Persons, was brutally attacked by unidentified persons in New Delhi on 12 November 2022.

According to reports, the incident happened on the night of 12th November when Gopi was taking a stroll in Karol Bagh after dinner.

He was reportedly surrounded by 6-7 people who had asked him for money. When he refused, they abused him and physically assaulted him, a Delhi Police officer was quoted saying in a report.

Gopi has severe injuries on his eyes, face and hands. He has been hospitalized and had undergone 2 minor surgies, according to sources close to him.

A case under Sections 323 (voluntarily causing hurt), 341 (punishment for wrongful restraint) and 34 (acts done by several persons in furtherance of common intention) of IPC has been registered.

Intersex, a regional network of intersex activists and organization issued a statement condemning the violence meted out against Gopi.

“We strongly condemn the brutal attack inflicted on them by six unidentified men in Delhi. An attack of this nature against a prominent activist in the capital city is likely to have a chilling effect on future activism in the country. We are deeply concerned about the safety and security of intersex activists in India.”, the statement read.

“Gopi Shankar has been threatened by physical violence and attacked several times since 2021 and has even previously asked for intervention from the central government. This was the fifth instance of violence against them. The first four instances took place in the state of Tamil Nadu. India has witnessed several major progressive reforms recognizing the rights of people with diverse SOGIESC identities, including the intersex community. It is profoundly worrying that attacks against intersex activists continue even after law enforcement agencies have been put on notice.”, the statement said.

The organization has demanded a speedy investigation and has urged the National Commission for Human Rights to look into the matter.

Statement: Intersex Asia condemns violence against Gopi Shankar Madurai and calls for the protection of intersex activists

Read the full statement here: https://t.co/5S1RUwh1Qs#IntersexAsia #Intersex #ProtectIntersexActivists pic.twitter.com/LrL5WjDYBw

— Intersex Asia (@IntersexAsia) November 14, 2022

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The Delhi High Court Wednesday (July 27, 2022) delivered its final order on Srishti Madurai Educational Trust vs Government of NCT of Delhi & Others to ban sex-selective surgeries on intersex infants and children and to implement the Delhi Commission for Protection of Child Rights recommendations.

The High Court directed the Delhi Government to implement the recommendations prepared by intersex activists Gopi Shankar Madurai and Anjali Gopalan which asked the Government of Delhi to declare a ban on medically unnecessary, sex-selective surgeries on intersex infants and children except in cases of life-threatening situations.

The order also noted that Srishti Madurai can approach the Delhi High Court again if it is not satisfied with the implementation of the verdict.

Speaking to The Commune, Gopi Shankar Madurai who is also the South Region representative of the National Council for Transgender Persons (NTCP) said that he hopes that Delhi CM Arvind Kejriwal will implement the order at the earliest and uphold the constitutional rights of Intersex infants & children in Delhi.

“I thank Advocate Shri Robin Raju for supporting intersex human rights and appearing pro bono in this case.”, he said.

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Gopi Shankar Madurai the Southern Representative of the National Council for Transgender Persons has objected to the appointment of Mohanambal as a member of the Transgender Welfare Board of Tamil Nadu as she is reportedly a “Nayak”.

In a statement, Gopi said that Mohanambal is a ‘Nayak’ of the Jammat/Dayyar system, a system that pushes transgenders into sex work and other illegitimate work.

These Nayak function as cartel heads and collect money (a tax known as Moorcha) from transgenders who are part of the ‘Jammat’.

Gopi in his statement said that this system which is supposed to be a protection mechanism for transgenders has degraded into an oppressive slavery system. He noted that transgenders who become a part of it find it difficult to leave it as that will have serious consequences to their lives and liberty.

He said that Mohanmbal also known as ‘Trichy Mohana’ is a Nayak of this oppressive system and has demanded the Tamil Nadu government to cancel her appointment as member of the Tamil Nadu Transgender Welfare Board.

https://twitter.com/IntersexIndia/status/1458952453601181698

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Members of the national and international human rights community has condemned the harassment meted out to Intersex activist Gopi Shankar Madurai who is the South Representative at the National Council for Transgender Persons.

“We the members of the national and international human rights community deeply condemn the human rights violation and inhumane treatment committed by the Revenue Inspector of Chengalpattu (Mahabalipuram) James, District Collector of Chengalpattu Rahul Nadh IAS, Police Inspector Mahabalipuram D. Natarajan on Gopi Shankar Madurai, South Region representative of the National Council for Transgender Persons (NTCP) and prominent intersex rights activist who has contributed a lot for the betterment of gender and sexual minorities”, the statement said.

“We are stunned by the behaviour of District Collector of Chengalpattu Rahul Nadh IAS who abused his power and acted in violation of principles of natural justice”, the statement further noted.

The joint statement also said that the authorities along with VAO Venkat Rajesh of Mahabalipuram verbally abused and insulted Gopi who was addressing grievances of the concerns of Transgender and gender non-confirming communities noting that Ze is empowered to do so under the Transgender Persons (Protection of Rights Act), 2019.

It said that due process of law should be followed and people involved should be given an opportunity to provide their account.

“We issue this statement in solidarity with the firm belief that any for of inhumane treatment, hatred, and violence against Gopi and SOGIESC community is an attack on all of us and the rights enshrined in the Supreme Constitution of India. We stand together to call for solidarity and support across our various communities.”, the statement said.

The signatories included:

1) Bangladesh Queer Partnership Platform- EQUAL, Bangladesh
2) Inclusive Bangladesh, Bangladesh
3) Noboprobhaat Social Welfare Society, Bangladesh
4) Prantoz Foundation, Bangladesh
5) Somota Foundation, Canada
7) Pathchola Foundation, Bangladesh
8) Nayyab Ali, Transgender Rights Activist, Pakistan
9) Tanveer Rouf, Queer and Vegan Activist, Bangladesh/Canada
10) Manisha Meem Nipun, Transgender Rights Activist, Bangladesh
11) Md Yasin Ali, Queer Rights Activist, Bangladesh
12) Tushar Kanti Baidya, Human Rights Activist, Bangladesh

Gopi Shankar had posted in his social media that the DMK Government in Tamil Nadu is trying to trap him into false cases by implicating him as a drug peddler.

Some of the other activists and organizations who have expressed solidarity to Gopi include

1. Anjali Gopalan – Founder of the Naz Foundation (India) Trust. New Delhi, India.

2. Henry Koh – Executive Director of ILGA Asia (The International Lesbian Gay Bisexual Trans and Intersex Association, Bangkok, Thailand)

3. Iniyan Ellalan – Dalit Rights Activist, MC Rajah Youth Movement. Chennai and Madurai, India.

4. Ashok Row Kavi – Senior LGBTQ+ Rights Activist & Editor of Bombay Dost & Founder of Humsafar Trust.

5. Intersex Asia, Taiwan (through their statement of support from their official Facebook page).

6. Shalini Nair – Journalist & PhD candidate (UK & India)

7. Pallav Patankar – LGBTQ+ Rights Activist, Mumbai, India.

8. Advocate Prashant Singh – Human Rights Lawyer, Supreme Court of India, New Delhi

9. Advocate Vijay Mishra – Human Rights Lawyer, Supreme Court of India, New Delhi

10. Meghna Sharma – Disability Rights Activist, New Delhi

11. Grace Banu – Transgender & Dalit Rights Activist, Tamil Nadu, India.

12. Hayathi – Transgender Rights Activist, educator on Diversity & Workplace Inclusion, Bangalore, India.

13. Avantika Srivastava – Child Rights Activist, Uttar Pradesh.

14. Hamdan Abdullah – Equal rights activist. Founder of All India SOGIESC Muslims Forum, Kerala.

15. Zainab Javed Patel – National Council for Transgender Persons, Ministry of Social Justice and Empowerment.

16. Sohini Chattopadhyay – National Award (Swarna Kamal) Winning Critic, Writer & Journalist, West Bengal.

17. Ankit Bhuptani (Individual)

18. Queer Hindu Alliance (Organisation)

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Feature Image: Gopi Shankar Madurai (left) and Rahul Nadh IAS (right)

In what seems to be an blatant abuse of power, Chengalpattu Collector Rahul Nadh IAS allegedly harassed the southern representative of the National Council for Transgender Persons, Gopi Shankar Madurai by initiating action against him and other fellow members of his community while they had gathered at a place to discuss the problems faced by the trans community.

Gopi Shankar Madurai had come to Mahabalipuram to attend to the grievances of gender non-conforming and transgender people and had arranged dinner for them at a property belonging to the fishermen community on the night of July 31, 2021.a. Around 20 people belonging to diverse SOGIESC and trans communities who are homeless and jobless were present.

They were reportedly verbally abused and physically harassed by the Mahabalipuram police inspector and RI who later sealed the place of the fishermen community.

In an audio recording accessed by The Commune, the Mahabalipuram RI can be heard informing District Collector Rahu Nadh that 40 people have gathered at the place drinking alcohol and that Gopi Shankar Madurai had ‘spoken too much’ to the police inspector. Rahul Nadh tells the inspector to come to a place away from them. He can be heard telling the RI to ‘take photos and videos properly’ and let the others go with a fine after they finish eating. He also asks him to seal the place and slap an FIR against Gopi Shankar Madurai.

The RI reportedly sealed the place later and initiated action against Gopi Shankar Madurai.

Speaking to The Commune, one of the transpersons who wished to remain unidentified had told that both the Collector and the police were acted in a prejudiced manner insensitive towards the trans community members.

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Gopi Shankar Madurai, the Southern Representative of the National Council for Transgender Persons has written to Tamil Nadu Chief Minister M.K. Stalin to address the discrimination faced by transgender persons in getting treatment for COVID19 as well as access to vaccines.

In his letter, Gopi said that the pandemic has wrecked the lives and livelihoods of transgender and intersex people adding that it was not possible for them to get quality healthcare anyway.

“During the second wave, I have received several complaints from transgender people across different states of South India highlighting the discrimination faced by them while getting treatment for COVID-19. They are being subjected to discrimination from doctors as they are not getting the required medical attention. There have been several news reports regarding the same. Further, it is also important to take note of the health needs of transgender people living with serious diseases and ensure that their access to medicine is not impaired.” Gopi said in his letter.

He urged the CM to allocate 5 beds exclusively for transgenders in each district citing Section 16 (f) of the Transgender Persons Act, 2019 which mandates the government to facilitate access to transgender persons in hospitals and other healthcare institutions and centres.

He also asked the CM to arrange special vaccination drives for transgender people drawing attention to the fact that there is little or no awareness among the transgender community regarding vaccination.

“Your action today will determine how many transgender people will be able to get the much-needed medical attention and will be vaccinated and this at a time when a solidaristic, humanitarian and accountable response is being called for to save people and their futures.”, Gopi said concluding his letter.

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Thoothukudi MP and DMK women’s wing secretary Kanimozhi Karunanidhi met the South Representative of the National Commission for Transgender Persons, Gopi Shankar Madurai, in Madurai on 9th February 2021.

Kanimozhi who was in Madurai as part of her campaign, hosted lunch for Gopi Shankar Madurai and discussed issues pertaining to the intersex and transpersons community. The DMK MP appreciated Gopi’s efforts and said that that she is committed to protect the rights Intersex Infants & children.

Gopi, who is known for his critical views on the DMK and ‘Periyarism’, discussed his political views and decade long volunteer activism. He also gifted a copy of his book Maraikkappatta Pakkangal, the first book on diverse SOGIESC (Sexual Orientation, Gender Identities and Expression and Sex Characteristics) communities in the Tamil language, that was launched by BJP leader Vanathi Srinivasan.

Kanimozhi shared the efforts taken by her father Karunanidhi to support the transwomen community. Earlier Gopi was invited by Tiruchi Shiva to Rajya Sabha to witness the passage of his private member bill on Transgender persons. Kanimozhi further invited Gopi to her Delhi residence.

It is to be noted that this meeting was not included in the official agenda of Kanimozhi and is reportedly a personal meeting.

https://twitter.com/IntersexIndia/status/1359777341048713229

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Haleema*, a 14 year old transsexual boy belonging to the Muslim Scheduled Caste community, was decoyed by a transgender cartel and forced into sex work on the pretext of getting his sex-change operation done.

Haleema hails from Kalimetupatti near Utthamapalayam in Theni district. Last week he was at the Dindigul bus stand when two transgender persons named Sathya and Aparna working for another transgender named Sona had approached him. They had interacted with him and took his mobile phone number. Two days later, they had called Haleema and enticed him to come to Trichy under the pretext of getting his sex-change operation done earlier.

Haleema started for Trichy on November 25 and had gone to the place where Sathya, Aparna and Sona were living. They had told Haleema that they would get his sex-change operation done in the next six months but he had refused as he came to know that sex-change operation could be done only after one attains 15 years of age. Later, they forced him to drink alcohol and had threatened to attack him if he didn’t. They had called his parents and asked them to file a police complaint through a transgender in Theni stating that Haleema went missing.

At around 7 PM that day, they had taken Haleema to the Samayapuram highway for sex work. They had collected ₹500 from a male ‘customer’ and made Haleema do oral sex to him. When Haleema had questioned them about making him do all this, they had told him that they have an NGO named TGCANE under their control through which they will get be able to get away.

The next day Haleema escaped from their place and managed to back to his parents. He had narrated these details in a letter addressed to the National Council for Transgender Persons, a copy of which The Commune has accessed.

Speaking on the matter, intersex activist Gopi Shankar Madurai who is also the southern region representative in the National Council for Transgender Persons said that the way the Childline handled this complaint was very insensitive. “They need to be more sensitive towards handling the cases related to non-binary, gender non-conforming and transsexual children.”, Gopi said.

He also added that neither the District Collector nor the Trichy Commissioner of Police were responsive towards this issue.

“We have asked the concerned authorities to register a complaint. The Kollidam D4 police station is not registering this sensitive complaint which comes under POCSO. The Commissioner is also not responding.” Gopi said.

@TrichyPolice Sir a 14 year old transsexual boy has been forced to prostitution in Trichy, a complaint is being tried to be lodged at D4 Police Station without much success. Could you please take it up as a matter of urgent concern?

— sunitha krishnan (@sunita_krishnan) November 27, 2020

(* name changed)

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