Argentina, a pioneer in pro-transgender legislation, has operationalized the term gender identity in its constitution. The relevant article says that the “internal and individual way” in which people understand their gender is their gender identity. This involves their personal experience with their body, and changing (voluntarily) their appearance or anatomy via surgical means, as well as other expressions through dress and mannerisms.
This definition makes it amply clear that gender identity is a very subjective phenomenon, or a “qualia.” 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, which 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 of 2019 is severely regressive. 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, said policymakers had 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 I, 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.
Furthermore, the only self-perceived gender identity that the act allows for is “transgender,” which needs to be substantiated by a district-magistrate-approved certificate. Under no circumstances are trans persons 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 that states the so-called corrected gender. It comes as no surprise that this process would require an application, corroborated by documents from the relevant 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 strives to put trans people back into the tight binary holds of “man” and “woman,” and has left no space for those who exist in neither of those two categories, such as non-binary, gender-fluid and gender-non-conforming people, as well as people who do not wish to transition medically.
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.
Another surprising aspect of the Indian legislation is the “offenses 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 354D) and sexual harassment (IPC 354A), the punishment is at least three years in jail; for rape, it is life imprisonment. There is no explanation behind this other than the unsaid assumption that the trauma experienced by trans people is somehow less grave even when 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 center (Point 12.3). The act is silent on the infrastructural, safety and medical conditions that these rehabilitation centers must comply with in order to provide adequately for the children that are going to be placed there.
Professor Rajaraman and other trans activists in India believe that trans children are better off with other trans people where they will get a chance to understand themselves in the context of others’ lived experiences. Studies 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 behavior 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 children from having a recognized and rights-enabled family structure.
Motivations behind the Transgender Act
While there is no clear answer to why the act contains such inadequacies, a few indicators can be identified. In a previous version of the bill, which lapsed in 2018 in the Rajya Sabha, upper house of the Indian Parliament, begging by transgender persons was proposed to be criminalized. 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 ostracization, 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 (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. 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 such 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 Rajya Sabha, 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 [child]. Likewise, these transgender persons are also God’s children.”
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.
Indian policymakers 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 include at least one psychologist or psychiatrist. While this section has now been removed, the patronizing stance toward 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?
Legal recognition of systemic ambiguities enables the perpetuation of structural violence against the trans 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, 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 the World Health Organization in Geneva has said that “identity documents that do not match a person’s gender can hinder access to health services, social protection and employment.”
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 a law that 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 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 we can enhance communication between research and policymaking so that legislation in the Indian Parliament is more attuned to the needs of people. Politics and policy are intertwined, which means that attempts have to be made to understand the political motivations behind a piece of legislation. 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 trans people. New methods of protest and communication will have to be adopted, although what they will be remains unclear.