Queering The Law: Vidhi's Report on How Gendered Laws Affect LGBTQ Community [Read Report]

The report discusses the issue through the following four broad themes:

1. Freezing The Law: the term refers to the practice through which law determines and subsequently 'freezes' the sexual identity of a person just after her birth. The Registration of Births and Deaths Act, 1969, provides for forms to be filled for birth certificates. These forms only recognises the binary of male or female and has no provision for intersex persons. This leads to sex-assignment surgeries being performed on intersex infants in order to make them confirm to the binary. These surgeries are non-consensual and there is no law which sanctions a test to determine sex at birth. The report also terms medical establishments as a major site of violence for LGBTQI community as the medical texts continue to treat non-normative genders and sexual orientations as 'deviant'. Recognising non-consensual sex assignment surgeries as 'grievous hurt' under section 322 of the IPC is also suggested.
2. Change in Gender Identity in Law: Despite the judgment in NALSA recognising the fundamental right of an individual to choose her gender identity, the proposed Transgenders Bill of 2019 is silent on the status of rights and liabilities of a person upon change of their gender identity. Countries like Ireland, UK, Norway, Malta and Argentina have already incorporated this issue in their laws.
3. Gendered Drafting of Laws: the drafting and interpretation of laws in India continues to be guided by extremely regressive and gendered provisions such as Section 13(1) of the General Clauses Act which says that the words importing the masculine gender shall be taken to include females.
4. Identity Documents: For transgender persons, the process of changing their name and gender on identity documents is highly bureaucratised and include cumbersome steps. Even the Transgenders Bill has controversial provisions such as screening mechanism and requiring gender-affirming surgery for transgender persons who want identify within the binary. Apart from undermining the right to self-determine gender identity, the law also conflates the distinction between sex and gender, despite the same being recognised in the NALSA judgment.

Apart from these observations, discourses and suggestions, the report also provides a compendium of laws, regulations and rules that are gendered. It also highlights the key issues that were taken up during the consultation which the think tank had conducted with persons and activists from the LGBTQI community. This consultation document covers wide areas of issues such as reforming personal laws, reservation for Transgender persons, etc.

The report is a conversation starter and sends a strong message about the need to address the issue of gendered laws. These laws, if not addressed at the drafting stage, will lead to multiplicity of complex litigation which is not desirous for either the affected person or the over-burdened judicial system.

Click here to download the Report