Transgender Act : Not Just Unconstitutional!

Before I proceed, I urge you all to please contribute to trans, queer and non-binary persons, sex workers and, other marginalised persons and communities who are being rendered vulnerable without sources of income, food, rations, essentials, work or without funds, affirming support, healthcare, education commitments, family needs or for their transition, especially during this COVID-19 pandemic-induced lockdown. Every contribution matters, big or small, but if you can, please contribute more. Do amplify! Some, if not all of the links are here, here, here.

"The terms 'transgender' and 'cisgender' are derived from Latin. Trans means to move, or moving; Cis means the opposite. So, a transgender person is someone who 'moves' from one gender to the other, while a cisgender person is one who 'stays' in their assigned gender."[i]

The idea here is to not just argue that a law is unconstitutional, but to lay down a few aspects of the struggles that many of us trans persons and communities suffered in the last four years and more in opposing this discriminatory law. For a cisgender man or woman lawyer writing on this issue, it may be just another legal analysis, with a touch of solidarity, or just an attempt to advance one's career. However, for me and other trans, intersex, non-binary persons, our very lives are on the line here.

NALSA v Union of India 2014 judgment (hereinafter, NALSA) was delivered in April 2014. The judgment, albeit extremely confusing and wrong in some parts, represented a certain skewed understanding of gender, and attempts to historicise it, by the Supreme Court. Nevertheless, it reaffirmed the fundamental rights of transgender persons and intersex persons under the Constitution of India.

What I vehemently reject is the conflation of the word 'third gender' in NALSA as a catch-all term when it comes to us. While anyone is free to self-identify as third gender, the very idea of self-identification is against the notion of imposing one word, which is not acceptable to all. It further reinstates a sexist exclusionary hierarchy, thereby violating Articles 14 and 19. If every transgender person is supposed to be referred to as a third gender person, then who is the first gender? A cisgender man? Will cisgender women accept the status of 'second gender' under the Constitution?[ii]

While the struggle for legal rights began much before NALSA, it definitely gave an impetus to take the fight to the High Courts, such as the T. Thanusu case before the Madras High Court. However, what has followed in terms of Bills after Bills is a study in itself.

Some of the most violent, yet subtler gender-based policing lies in the legal history of transgender persons' rights. With every progressive judgment or law, only small spaces are opened for us and we are expected to be very 'grateful' for any improvement as we do not have much in the first place. Whenever a new legal development regarding the Act came in, many of us would view it with anxiety. It felt like Damocles' sword, with many of us having to rush our transition process; legal, physical or otherwise. With the worry of an uncertain future, we wondered how much of our documents or progress so far would be even valid once the Act came in.[iii]

The first issue arose with inaccessibility to the Act/Bills which were primarily in English and Hindi. In a country with multiple languages, the Union failed to provide any translation.[iv] Official languages of the Union are only Hindi and English. The Hindi version of the Act, which is named as 'Ubhayalingi Vyakti' is a terrible translation for transgender persons. This issue has failed to garner traction. Many persons, whether in politics, academia, on social media discuss extensively about decolonising narratives, for their own political gain and social capital, when it suits them. Who cares about a marginalised identity (s) and communities?

In Tamil Nadu, after efforts by trans persons, the word Thirunangai, Thirunambi & Thirunar have evolved, owing to the late CM M. Karunanidhi. This is rooted in the self-respect movements grounded in Periyar, Dr. B.R. Ambedkar, and Dravidian politics.[v] Will the anti-colonial & decolonising lobbies also look at de-brahminising names for us? Even if we were to agree for a moment that the right terms are yet to be found, what prevents the Union from using "transgender persons" translated in Hindi for the time being in the Act?[vi] Even these terms grounded in dignity, self-respect are being replaced with the word 'third gender' in Tamil Nadu by a rival political faction in power.[vii]

Before focusing on legislation, it is pertinent to note that not even one openly out transgender person happens to be a Member of Parliament. Forget Parliament, how many trans persons are your classmates? How many are in positions of authority in the government or outside? How many are even in the State government or are local representatives in urban and rural bodies? How many are your doctors or medical staff ? The number, if the answer is not none, can be counted on your fingers.

This highlights the fact that none of the trans, intersex, non-binary persons in various movements, even the ones for social justice, research think tanks, organisations, NGOs, etc. are in leadership positions. A majority of us are held back by a transphobic caste-community mode of production, endogamy and prejudice that strips us of our families' acceptance, forces us, exploits us and further marginalises many amongst us into sex work, begging etc. But, day in and day out, many of us trans persons, including me, are approached for research purposes, filling responses to surveys, being called to give talks or do sensitisation workshops, provided we sufficiently fit your respectability standards, and these are most often being unpaid.

On trans persons' labour, efforts, lived experiences and exploitation, so many cis persons, whether queer or not, build their careers. I do not want to commence blanket cis bashing, but there are so many instances now that leave us exhausted. We become subjects to be experimented upon for the medical industry or for the token ally to call themselves progressive and inclusive. They make films where our lived experiences are turned into a product of their imagination and hard work, earning plaudits for your 'bravery', chops for your acting skills, in portraying us. But, we are hardly hired both on and off screen.

This means that there rests an immense responsibility on those who legislate for us; that they reflect this in action, spirit and listen to the constituents who do not have the same power as cis men and women, especially those not from dominant caste, class, gender backgrounds.

Tiruchi Siva's 2015 bill was by far the most progressive and comprehensive with minute mistakes, such as Sections 46–48: 'Transgender Courts'. It was the first private members' bill to be passed in over 40 years in Parliament. However, when the Bill came to Lok Sabha, the government submitted that it shall bring its own Bill which resulted in the 2016 bill version of the Act. The latter bill was an insensitive rendition of the lives of trans persons, with its Definition Clause reinstating the harmful stereotypes that have come to be associated with transgender persons.

The Act is no different from its previous versions in the sense that it is tokenist and piecemeal. Any changes in provisions can be attributed to the efforts by transgender persons submitting representations, writing op-eds, lobbying through whatever networks one could access, and protesting, despite lack of resources and money, in multiple states for over the past four years.[viii] This predicament has repeated itself year after year. But, time again we were told subtly or not so subtly that we did not matter; they knew what was best for us and they would go ahead with it.

About the Act

Section 2(k) defines a transgender person to include both individual identities & socio-cultural identities.

"transgender person" means a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta.

What's the definition of a trans man, trans woman, genderqueer person or for that matter, kinner, hijra, aravani and jogta persons? Even if we were to agree for a moment, that there can be no set or agreed upon definitions and what should matter is their self-identification – the question that would arise would be how many persons/representatives were consulted before including the same?

These identities have their own set of histories, geographical locations, structures, contexts. Are their structures of care and support being recognized? Would the underlying complexities which often differ across regions get erased? What specific rights are accrued to each of these identities? This is a common thread that runs with all the other identities being recognized under this Act, as we shall see later.

The definition goes on to include person with intersex variations. At first glance, this might appear to be a good definition. However, by classifying intersex persons under the definition of transgender persons, what the state is essentially conveying is that 'all intersex persons are transgender persons'. This is misconceived. An intersex person may identify as a transgender person, or may not. What this section does, in one stroke, is take away the right to self-identification of intersex persons, violating the spirit of the right to self-identification underlying the Constitution of India, reaffirmed in Nalsa.

From the time I opened up, until now, I am constantly asked, "Are you biologically transgender?", "Aren't you born like this?", "What are your genitals?"; initially I used to be taken aback by this. While these questions stem from many wrong assumptions, the predominant trope is to confuse and conflate all intersex persons with transgender persons, often with a sense of disgust directed at both the identities. The Act emphasizes that.

There is also the definition of "persons with intersex variations" under Section 2 (i):

"person with intersex variations" means a person who at birth shows variation in his or her primary sexual characteristics, external genitalia, chromosomes or hormones from normative standard of male or female body;

Does this give any substantial rights to intersex persons, apart from whatever is part of being recognized as transgender persons? This Act does not even ban the forced and unnecessary sex reassignment surgeries performed on intersex infants. It is one of the forms of medicalised violence rooted in society's prejudiced caste-patriarchal ideas of a binary. Why does this Act gloriously forget the judgment in Arunkumar v Inspector General of Registration? The Parliament failed to discuss or ban the surgery, something which a Single-Judge Bench of the Madras High Court did when an intersex person approached the Court. Why do you call this Act 'Protection of Rights'? Whose rights and interests is it actually protecting?

Finally, nowhere does this Act define gender identity. This makes me wonder, what is the objective of this? Why has the Parliament not discussed gender identity, gender non-conforming persons, expression or even sexual orientation? Have majority of our MPs who passed this Act understood what it to means to be a genderqueer person?

It must be remembered that sex under Article 15 of our Constitution has been interpreted to now include gender identity, sexual orientation & sex characteristics [in the cases Nalsa, Navtej/Section 377 & Justice K.S. Puttaswamy v UOI ). The answer perhaps lies in a certain skewed understanding before and after Nalsa. Earlier gender or sex would mean only male or female. Now, it would mean just the addition of one more category of identity. with people parroting for the need of "transgender toilets" without understanding the connotation of the same,[ix] this 'third' based understanding and mere hollow repetition of right to self-identification is the reason why we are where we are,

(Kanmani Ray LR is a savarna trans woman pursuing LL.B. from Campus Law Centre, Faculty of Law, University of Delhi. Her pronouns are she/her. She has been a resource person for some sensitisation efforts. She aspires to be an advocate but even more a dancer, lover, mother and a teacher someday. She is also one of the Petitioners in a batch of petitions challenging the constitutionality of the Act. She tweets @kanmanisays.).

(This is an edited version of the article first published here).