On December 14-15, 2016, the Centre for Law and Policy Research (CLPR) organised ‘Transform: A National Conference on Transgender Rights and Law’. The Conference was an attempt to initiate a dialogue around gender, gender identity and its complex relationship with the law. The issues raised and debated in the conference pertained to the need for holding a discourse on transgender rights despite the progress in this area post the NALSA judgment. Despite the recent advances, some of the more fundamental questions involving the identification of gender continue to be misinterpreted. The necessity of exploring these fundamental issues was further underscored by the Transgender Bill 2016, which seems to be a step back from NALSA and the progressive march of law in transgender rights.
In 2014, the Supreme Court pronounced its observations in the NALSA judgment, where it upheld the self-determination of gender, i.e. the right to determine one’s gender identity irrespective of socially assigned sex or physical state of transition (surgery, hormones) and issued nine directives to the government aimed at rehabilitating and integrating the transgender community in society.
Subsequently, after the presentation of multiple bills, The Transgender Persons (Protection Of Rights) Bill 2016 was introduced ‘to provide for protection of rights of transgender persons and their welfare’. The Bill, however, while filling a glaring vacuum vis-à-vis transgender rights, falls short of its stated objectives and goals, with occasionally explicitly failing to protect its subjects. While there has been an extensive review and critique of the Bill from various organisations on almost all provisions of the new Bill, the aforementioned provisions concerning the notions of ‘gender’ and its expression require a restatement and a more thorough analysis. These provisions are deemed fundamental as they go to the core of the whole transgender debate i.e. the meaning of gender and the inalienable right to identify and express one’s identifiable gender. This piece will exclusively look at the provisions regarding the definition of ‘transgender’ the inherent vibrancy of ‘gender’ itself and the necessity of self-identification and expression of gender.
The meaning of “transgender” has shifted over the years with Virginia Prince, often recognised as the person who brought transgenderist into wide usage, explaining it as a term for someone who “trans the gender barrier- meaning somebody who lives full time in the gender opposite to their anatomy”. Since then, overcoming a string of diverse and often inadequate versions over the years, ‘transgender’ in the words of Susan Stryker, describes “an umbrella term that refers to all identities or practices that cross over, cut across, move between, or otherwise queer socially constructed sex/gender boundaries. The term includes, but is not limited to, transsexuality, heterosexual transvestism, gay drag, butch lesbianism, and such non- European identities as the Native American berdache or the Indian Hijra.” In other words, individuals whose gender identity or gender expression does not conform to the social expectations for their assigned gender at birth are termed as transgender persons. Transgender persons, on account of their divergence from the predominant conceptions of gender roles are subjected to prejudice, discrimination and attack. Transgender youth are among the most marginalized young people in society, reported to be at a high-risk of homelessness, education, health-care and education.
Defining “Transgender” under the Bill
The very first part of the Bill defines a ‘Transgender Person’ as a person who is “neither wholly female nor wholly male; or a combination of female or male; or neither female nor male; and whose sense of gender does not match with the gender assigned to that person at the time of birth, and includes trans-men and trans-women, persons with intersex variations and gender-queers.” The definition being restrictive of the understanding of a transgender identity, seeks to explain it within the binary yardstick of ‘male’ and ‘female’. It further excludes multiple sociocultural identities like Shiv Shaktis, Hijras and Jogappas from its ambit; while conflating intersex persons with transgender persons at the same time, reflecting a misunderstanding of these concepts.
The Bill severely restricts the constitutionally guaranteed right of transgender persons to self-identify their gender, while taking away the option of identifying as either male or female. Gender is one’s own specific way of interacting with and presenting oneself to the world, which is organic and inter-relational at the same time. Legal scholars like Paisley Currah have criticised the traditional binary system for its failure to adequately protect individuals in a society in which people do not fall neatly into two opposite classifications. The inadequacies of a bijurisprudence system have been exposed in a variety of areas including race, sexual orientation, and disability law.
Certifying Transgender Identity
Flowing from the first part of the Bill is the requirement of identification of transgender persons within the meaning of the Bill. This provision further deviates from the fundamental notions of self-determination, while undercutting the principles put forth by the NALSA judgment. The Bill requires a certificate of identity, whereby determination is to be made by a Screening Committee consisting of the Chief Medical Officer, District Social Welfare Officer, Psychologist or Psychiatrist, one representative from transgender community, and an officer nominated by that Government. This provision is completely at odds with the NALSA directives. Multiple activists and authors have questioned the involvement of ‘unnecessary bureaucracy in order to determine the gender identity’, while others have expressed serious concerns regarding the presence of the chief medical officer in the district screening committee. Scholars like Aniruddha Dutta have already predicted that any such requirements may lead to gender policing by state bureaucratic mechanisms, pointing out that ‘kothi/hijra people have already faced arbitrary bureaucratic requirements when making applications to change gender identity to their preferred option in legal documents such as voter I.D. cards or Aadhaar cards, and there have been cases where they have been expected to show proof of medical transition.
The NALSA judgment was celebrated for its right to self-identification in terms of legal gender recognition. This was in line with the idea that the determination of legal sex should be considered within the context of constitutional values, whereby within a normative framework of autonomy- preserving guarantees, a constitutional space for the right to self-determination is articulated. By requiring a medical officer to certify identity, it would amount to undoing what was guaranteed by NALSA.
The question of choosing one’s gender and expressing the chosen identity is inextricably linked to the idea of autonomy. The recognition of autonomy is in in tune with the philosophy of identity being more complex, fluid and fragmented. As Roger Brubaker notes, “a significant aspect of this unsettling of basic categories has been the accompanying challenge to heteronormativity that has been attended by the massive destabilization of binary regimes of gender and even sex itself.” The Transgender Bill 2016 demonstrates these contrary tendencies by attempting to grant self-determination of gender identity, while imposing a binary regime of gender and gender identification via bureaucratic adjudication. Similarly, there are other contradictions between multiple sections of the Bill, which are symptomatic of the aforementioned tension between broad and restrictive definitions of ‘transgender’, and between gender self-determinism and biological essentialism. Clarifying these concepts, particularly the ones defining what it means to be transgender and the expression and recognition of the same by law are of huge importance since the legal institutions through this Bill aim to regulate the behaviour and lives of transgender community.
The NALSA judgment remarks, “Seldom, our society realizes or cares to realize the trauma, agony and pain which the members of Transgender community undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex.” These remarks underline the fact that for transgender persons, any consideration of their plight has to begin from the very recognition of their person as identified by themselves. With an increasing awareness and acceptance of ambiguity away from rigid binarism of gender and sex, it is essential to reiterate these fundamental principles and demand for their express inclusion in any transgender rights legislation. While self-recognition alone will not solve serious problems of trans-inequality, it forms an indispensable starting point of a just society with an equal recognition for the transgender community.