Inadequacies in India’s Transgender Legislation

Decoding Gender Identity

Argentina, a pioneer in pro-trans legislation, has operationalized the term gender identity in its constitution. The article says that the “internal and individual way” in which a person understands their gender is their gender identity.1 This involves their personal experience with their body, changing (voluntarily) their appearance, and anatomy via surgical means as well as other expressions through dress and mannerisms.

The definition makes it amply clear that gender identity is a very subjective phenomenon, or a ‘qualia’.2  This means that since the gender of a person is an introspective experience, only the subject of that experience can verify the gender identity.

Transgender Policy in India

In the face of the historic 2014 National Legal Services Authority (NALSA) vs. Union of India judgment by the Supreme Court, that made it clear that gender determination is in the hands of the person concerned and did away with biological tests, the Transgender Persons (Protection of Rights) Act, 2019 (hereby referred to as ‘the Act’) is severely regressive.3, 4 The very potential of the Act to transform the sphere of trans rights has been diluted. Professor Bittu Rajaraman of Ashoka University, a transgender activist, noted that the policymakers have subsumed the intersex identity (having a sexual anatomy that doesn’t fit into typical male and female) within the trans identity (having a gender identity non-conforming to birth-assigned sex), as a subtype (in chapter 1, point 2.k of the Act). Clearly, there is an insufficient understanding of the very difference between gender and sex, and the many variations within each. Such a conflation makes for irresponsible policy. Specific policy requirements for the intersex community remain unaddressed; for example – legal prohibition of non-consensual medical procedures to make their bodies conform to assigned sex.5

Furthermore, the only self-perceived gender identity that the Act allows for is ‘transgender’, that needs to be substantiated by a district-magistrate approved certificate. Under no circumstances is a trans person allowed the autonomy to identify themselves as a man or a woman (if they wish to) upon self-perception. Point 7.1. states that only a person who has undergone surgery to become either male or female can apply for a certificate which states the so-called corrected gender. It comes as no surprise that this process would require an application, corroborated by documents from the medical institution, and the associated medical officers. For this clause to exist, despite multiple examples from around the world of the omission of medical processes as a prerequisite for gender affirmation, is dehumanizing. The act is striving to put trans people back into the tight binary holds of man and woman, and has left no space for people who exist in neither of the two categories, such as non-binary, gender-fluid and gender-non-conforming people, as well as people who do not wish to medically transition. Bangladesh has already seen the repercussions of pathologizing the trans identity; the community was given state ‘disability allowances’, but such welfare mechanisms backfired when trans persons were forced to undergo medical examinations to prove their transgenderism, and fired from their government jobs when they failed.6

Another surprising aspect of the act is offences and penalties section, which establishes that the maximum punishment for crimes against trans persons (point 18.d.), including sexual and physical abuse, will be two years along with an unspecified fine. In comparison to this, for crimes against women such as stalking (Indian Penal Code (IPC) 354D) and sexual harassment (IPC 354A), the punishment is at least three years in jail; for rape it is life imprisonment.7, 8 There is no explanation behind this other than the unsaid assumption that the trauma experienced by the trans people is somehow less grave, even though the crime is the same. The act also seeks to provide for grievance redressal mechanisms in all establishments (Chapter V, point 11), both public and private, but says nothing about the prevention and punishment of harassment that occurs in streets, slums, brothels and other informal places of employment. This is exemplary of the policymakers’ limited understanding of trans lives in India.

Further, the Act says that in the face of institutional or familial discrimination against a trans child, on the behest of a court, the child will be placed in a rehabilitation centre (point 12.3). The act is silent on the infrastructural, safety and medical conditions that these rehabilitation centers must comply with in order adequately provide adequately for the children that are going to be placed there. Studies10 have shown that an absent family and community structure for trans children manifests in the form of mental health problems in trans children, and leads them to engage in destructive behaviour like self-harm and substance abuse. But the act does not account for this. It also does not deal with civil rights such as marriage and adoption, which perpetuates the hetero-normative ideal of Indian society and prevents them from having a recognized and rights-enabled family structure.

An Overview of International Transgender Legislation   As this decade comes to a close, many countries have succeeded in giving the trans community their rightful place in society, through empowering and non-discriminating laws. These laws strive to give the trans people autonomy and state recognition, and also set excellent precedents for lawmakers globally to take note from.   Denmark   The Danish pioneered the movement for gender self-determination in Europe with the 2014 gender recognition law11. It does away with psychiatric diagnoses and medical treatments as grounds for filing an application. People under the age of 18 cannot file for gender self-determination.   Ireland   Starting in 2015, people above the age of 18 have been allowed to legally change their gender by “statutory self-declaration”12. The framework is being reviewed to account for younger people as well as non-binary/agender13/gender-fluid people, who do not want to opt for the male-female binary.   Malta   The Gender Identity, Gender Expression and Sex Characteristics Act (GIGESC Act) of 2015 provides “quick, transparent and accessible”14 gender recognition, contingent entirely on self-recognition. Declarations must be made to a government notary, who is legally prohibited from seeking medical information for the same. Applications for minors can be made by their parents or legal guardians. Additionally, birth certificates can remain without gender markers until the child has made an informed decision.     Argentina   By far, Argentina has one of the most comprehensive provisions for gender-identification rights. Article 1 of the constitution outlines the Right to Gender Identity as the (1) freedom to self-recognition of gender identity, (2) freedom to develop according to said identity and (3) the right to be identified and treated accordingly15. Article 4 accordingly supplements this by stating that under no circumstances will the applicant have to provide evidence of total or partial sex reassignment or therapies (both hormonal and psychological). Once these basic requirements are met, the public officer in charge can move for the issuing of a fresh birth certificate and a new national ID card. All legal entitlements and obligations remain as they were prior to gender identity change.   Others   There are certain countries which decided to break down the very construct of gender as a marker of identity. For instance, in New Zealand and Australia, it is no longer considered necessary for a person to even have a gender. Official documents for people are allowed to say ‘unspecified’ against gender. The Dutch parliament, similarly, is considering whether official documents should even record gender at all16.      While these are noteworthy pieces of legislation which provide legacy for other nation states to learn from, there is room for improvement. For example, in Denmark, a clause in the law that mandates a six-month period between application and approval has met with resistance from activists. The lawmakers added this clause to make room for people who might want to withdraw their applications. However, the organization Transgender Europe has raised concerns about how this provision fuels the myth that trans people are ‘confused’ about themselves and may make the wrong decision in haste.17   Additionally, the move by Ireland and Denmark to prohibit people under the age of 18 to file for gender self-determination is being understood by many as a move to undermine the autonomy of trans children. The policy seems to be based on the notion that they are not old enough to understand their gender identity. The World Professional Association for Transgender Health (WPATH) has maintained that there is no valid reason to believe that people below the age of 18 do not have the mental or physical faculties to self-evaluate and recognize their gender status.18  

Understanding the Motivation Behind the Transgender Act

While there is no clear answer to this predicament, a few indicators can be identified. In a previous version of the bill, which lapsed in 2018 in the Rajya Sabha, begging by transgender persons was proposed to be criminalized.19 Rajaraman posits that this is indicative of the policymakers’ belief that trans persons beg out of choice, which is an extension of their incomplete understanding of the community’s concerns. There was little consideration of the fact that trans persons face an ostracization of inexplicable levels, shunned from places of work, worship, leisure and education. They beg, enter prostitution and become performers to eke out a livelihood.

Until recently, the Diagnostic and Statistical Manual of Mental Disorders or DSM, published by the American Psychiatric Association, classified gender dysphoria as an ‘identity disorder’, thereby insinuating that there is something inherently pathological about not feeling at one with one’s birth-assigned sex.20 While the manual has now done away with this classification, the medical community’s beliefs vis-a-vis dysphoria and transgenderism have been echoed by society for decades, which has been evident in discourses about the matter. Given the misinformation, even the most well-intentioned policymakers are unable to discuss trans rights without using trans-phobic vocabulary. For example, in the tabling of the Trans Bill in the upper house of the parliament, one of the members, who was vocally opposed to the bill, said the following:

If a baby is born blind, if a baby is born with hearing-impairment, then, do we think that this baby is a curse from God? No. It is God’s own children. Likewise, these transgender persons are also God’s children”.21

The parliamentarian then went on to add that the ‘brain power’ of transgenders is powerful and that they ‘can be trained’ to do many jobs. Policymakers of our country are hesitant about treating trans people as adults who have capacities of self-awareness and mature decision-making. Here, it must be noted that the 2016 version of the bill necessitated the establishment of a district level screening committee to hand out gender certificates, and the committee was required to have at least one psychologist or psychiatrist.22 While this section has now been removed, the patronizing stance towards the trans community is evident from the uninhibited allusion to transgenderism as some sort of a handicap. Given this circumstance, achieving an equal and unprejudiced stature for them, as well as an empathetic piece of legislation, are still distant eventualities.

What can be done?

A systematic ambiguity of legal recognition enables the perpetuation of structural violence against the community in India. Be it poor mental health, discrimination, isolation or abuse, the root of most problems faced by them can be traced back to inadequate policy coverage, which fails to provide for their special circumstances and does not address the historical injustice done to them. Annette Verster, a technical officer with the HIV Department at WHO, Geneva, said that “identity documents that do not match a person’s gender can hinder access to health services, social protection and employment”.23

In its present form, the act does not contain any actionable or attainable goals for the near future. Chapter IV of the act, which is dedicated to welfare measures that the government is required to take, is unspecific about these measures. There is no attempt to elaborate on what ‘full and effective participation’ means, what will be the format of the proposed welfare schemes or what will ‘rehabilitation’ and ‘recreation’ entail. This is not an act which will ensure an empowered status for the trans persons in India. The commitments should be broken down into unequivocal deliverables, for which organs of the government and special committees must be given accountability.

Policymakers, themselves, need to be sensitized about the matter of legislation, so that they are able to create an infrastructure of recognition for the trans community within the larger society.  It is time to think about how can we enhance communication between research and policy-making, so that legislation in the parliament is more attuned to the needs of people. Politics and policy are intertwined, which means that attempts shall have to be made to understand the political motivations behind the act. Only then will we able to make strides ahead, especially in the face of our parliamentarians’ unrelenting rigidity, presumably rooted in stereotypes and outmoded attitudes about the trans people. New methods of protest and communication will have to be adopted, although what they will be remains unclear.

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ENDNOTES

1 2013. “Argentina Gender Identity Law,” Transgender Europe. https://tgeu.org/argentina-gender-identity-law/.

2 Tye, Michael. 2018. “Qualia,” The Stanford Encyclopedia of Philosophy, ed. Edward N. Zalta, (Metaphysics Research Lab, Stanford University), https://plato.stanford.edu/archives/sum2018/entries/qualia/.

3 Wojcik, Mark. E. 2018. “Male. Female. Other. India Requires Legal Recognition of a Third Gender,” American Bar Association, https://www.americanbar.org/groups/international_law/publications/international_law_news/2014/fall/male_female_other_india_requires_legal_recognition_a_third_gender/.

4 “THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) BILL, 2019”, [as introduced in Lok Sabha],  http://prsindia.org/sites/default/files/bill_files/The%20Transgender%20Persons%20%28Protection%20of%20Rights%29%20Bill%2C%202019%20Bill%20Text.pdf

5 2019. “India: Transgender Bill Raises Rights Concerns,” Human Rights Watch,  https://www.hrw.org/news/2019/07/23/india-transgender-bill-raises-rights-concerns.

6 Bhattacharya, Sayan. 2019. “The Transgender Nation and its Margins: The Many Lives of the Law.” South Asia Multidisciplinary Academic Journal, pg. 12. DOI: 10.4000/samaj.4930.

7 According to Section 354A IPC, sexual harassment includes unwarranted touching or other physical contact, demands for sexual acts, making sexually-coloured remarks and unwarranted exposure to pornographic material.

8 N.d. “Legal Provisions Related to Sexual Offences against Women”. Vikaspedia, http://vikaspedia.in/social-welfare/social-awareness/legal-awareness/law-on-outraging-modesty-sexual-harassment-and-stalking-of-women/

10 Ryan, C. 2014. “Generating a revolution in prevention, wellness & care for LGBT children & youth”. Temple Political & Civil Rights Law Review, 23(2): 331-344.

11 2014. “Historic Danish Gender Recognition Law Comes into Force,” Transgender Europe. https://tgeu.org/tgeu-statement-historic-danish-gender-recognition-law-comes-into-force/.

12 Brooks, Libby. 2018. “‘A Monumental Change’: How Ireland Transformed Transgender Rights,” The Guardian, sec. Society, https://www.theguardian.com/society/2018/jan/15/monumental-change-ireland-transformed-transgender-rights.

13 Agender people are those who do not subscribe to any gender identity, thereby remaining genderless.

14 2015. “Malta Adopts Ground-Breaking Trans and Intersex Law – TGEU Press Release,” Transgender Europe. https://tgeu.org/malta-adopts-ground-breaking-trans-intersex-law/.

15 2013. “Argentina Gender Identity Law,” Transgender Europe. https://tgeu.org/argentina-gender-identity-law/.

16 Ghoshal, Neela and Kyle Knight. 2016. “World Report 2016: Rights Trends in Rights in Transition,” Human Rights Watch. https://www.hrw.org/world-report/2016/rights-in-transition.

17 2014. “Historic Danish Gender Recognition Law Comes into Force,” Transgender Europe. https://tgeu.org/tgeu-statement-historic-danish-gender-recognition-law-comes-into-force/.

18 N.d.“WPATH World Professional Association for Transgender Health,” accessed December 16, 2019, https://www.wpath.org/.

19 Singh, Prachi. 2019. “Why Is Transgender Community Unhappy with Trans Persons Bill?,” DownToEarth, https://www.downtoearth.org.in/blog/governance/why-is-transgender-community-unhappy-with-trans-persons-bill–67158.

20 2013. “Gender Dysphoria”. American Psychiatric Association. https://www.psychiatry.org/patients-families/gender-dysphoria/what-is-gender-dysphoria

21 2019. “DC-MZ/1A/11:00.” Rajya Sabha Secretariat, pg. 164. http://164.100.47.5/newdebate/250/20112019/Fullday.pdf

22 Bhattacharya, Sayan. 2019. “The Transgender Nation and its Margins: The Many Lives of the Law.” South Asia Multidisciplinary Academic Journal, pg. 12. DOI: 10.4000/samaj.4930.

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