In this series, I shall attempt to reflect on the Transgender Persons’ (Protection of Rights) Act, 2019 . This is the first one. It’s long but not exhaustive or final, so do bear with me. TMI alert.
But before I proceed, I urge you all to please contribute to trans, queer & non-binary persons, sex workers & other marginalised persons & 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)
1. NALSA v Union of India 2014 judgment (hereinafter Nalsa) was delivered in April 2014. The judgment, albeit extremely confusing & wrong in some parts, represented a certain skewed understanding of gender (& attempts to historicise it) by the Supreme Court. Nevertheless, it reaffirmed the fundamental rights of transgender persons & intersex persons under the Constitution of India.
2. 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 & I shall stand by it, the very idea of self-identification is against such a notion to impose one word which is not acceptable to all. Also, it reinstates a sexist exclusionary hierarchy (violating Article 14 & 19). If every transgender person is supposed to be referred to as a third gender person, then who is the first gender? Cisgender Men? Then will cisgender women accept the status of ‘second gender’ under the Constitution? Regardless, there are many more criticisms, but I would suggest you to read this piece by Gee Imaan Semmalar.
3. While the struggle for legal rights began much before Nalsa, it definitely gave an impetus, a tool to take the fight to the High Courts (An important example: refer here) to lay claim to some rights in a few cases. However, what has followed in terms of bills after bills is a study in itself.
4. Some of the most violent, yet unacknowledged or subtler gender based policing somehow lies in this legal history of transgender persons’ rights. Every time it seems like only small bits of resources & spaces are opened. And as expected of us to be very ‘grateful’ for any improvement, since we do not have much, we are asked to hold on to that. One can’t ask for more. Something in substantial, democratic terms that would actually mean progress & not be tokenism. How many of these institutions, let’s say the UPSC or SSC or SPSCs or any other institution have even come forward to even acknowledge their mistakes in excluding us & not hiring us? It’s been 70 or more years, right? That the Constitution & govt institutions have taken these many years to even reach us, no? Why even bother asking?
5. Whenever a new legal development regarding the Act came in, many trans persons I knew (& me), were looking at them with anxiety. Some of us vented on whatsapp groups or one-on-one, some on social media. It felt like a dangling sword over our heads, with many of us having to rush our transition process, legal, documents, physical or otherwise. With the worry of an uncertain future as to what would happen, how much of our documents or progress so far would be even valid once the Act comes in? (Please read this piece by esvi anbu kothazham here)
6. Wherein some put up queries, had to play catch up & it pointed to the overall inaccessibility of the Act/bills. They were primarily in English & in Hindi. Not in any other language. Which means in a country with many mother tongues, wherein the scheduled languages were itself 22, the Union govt did not provide any translation (What prevented them from providing it here on this link?). Official languages of the Union are only Hindi and English, you see. The Hindi version of the Act still is named as ‘Ubhayalingi Vyakti’. It’s a horrible translation for transgender persons. Many persons whether in politics/in academia/on social media will go on a rant about decolonising narratives, but for their own political gain & social capital, when it suits them. Who cares about a marginalised identity (s) and communities?
7. In Tamil Nadu, after much efforts by trans persons, the word Thirunangai, Thirunambi & Thirunar have evolved, with much thanks to the late CM M. Karunanidhi. This is yes rooted in the self-respect movements grounded in Periyar, Dr. B.R. Ambedkar, many others & Dravidian politics (These pieces by Nadika Nadja & Gee Imaan Semmalar are a must-read). Will the anti-colonial & decolonising lobbies also look at debrahminising names for us? Even if we were to agree for a moment that the right terms haven’t yet been found, what stops the Union govt from using transgender persons as such translated in Hindi for the time being in the Act? (Please read this brilliant research paper by esvi anbu kothazham here) Now, even these terms grounded in dignity, self-respect are being replaced with the word ‘third gender’ in Tamil Nadu by a rival/different govt in power (This piece in the News Minute is important).
8. Nice hypocrisy to use words which reinforce stereotypes in the Act unacceptable to all trans individuals but also simultaneously call it protection of rights. Wow! Where have we heard of this before? Oh yes, everyday! It’s a habit of naming us without us! We are called names & referred to without respect even before we are asked what is okay with us. Right from our parents, families, to our schools, to every damn space we go to. Only this time it’s an Act referring to us, institutionalizing it officially, legally.
9. Before you read up on the bills, remember this: not even one openly out transgender person happens to be a Member of Parliament, let alone as such in Lok Sabha & Rajya Sabha. 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 govt or as local representatives(urban & rural bodies)? How many are your doctors, medical staff, in all other fields? Even if your answers would be yes, they could be counted on fingers is what I would say. And even then, there is a ‘glass ceiling’.
10. What I mean is, of how none of the trans, intersex, non-binary persons in your various movements, even the ones for social justice (including the feminist & women’s rights), research think tanks, organisations, NGOs, corporates, firms, media, cinema, STEM or whichever field/sector, even so-called human rights organisations etc are in leadership positions. With a majority still poor, without or pushed out of jobs being held back by a transphobic caste-community mode of production, endogamy & prejudice that strips us of our families’ acceptance, forces us, exploits us & those further marginalised among 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 (that is, if we sufficiently fit your respectability standards), most often being unpaid. On trans persons’ labour, efforts & lived experiences & exploitation, so many cis persons, whether queer or not, build their careers. Yes, I don’t want to do blanket cis bashing, but there are so many instances now, that some of us are tired. We become subjects to be experimented on for the medical industry or for the token ally with all the Pride month & some days in the year to call yourself progressive & inclusive (not to take away from the resistance & work put in by persons from the community towards even building this much visibility or this day). Not to even say that, many don’t and didn’t even turn up in our protests but rather definitely joined Pride Parade (not to exclude nuance of people’s circumstances for not turning up, but I hope you realise what I mean). Or even make films where our lived experiences are turned into your imagination & hard work, earning plaudits for your ‘bravery’, chops for your acting skills, in portraying us. Look at Bollywood or any cinema industry for that matter. At best, we shall be in makeup or fashion (here also because of the sheer efforts of trans persons themselves). We are hardly hired both on & off screen.
11. Which means there rests an immense responsibility on those who legislate for us, that they reflect this in actions, spirit & listen to the constituents who do not have the same power as cis men & women, especially those not from dominant caste, class, gender backgrounds.
12. Let’s not even get into the Census 2011 numbers quoted to almost an exhaustion repeatedly by all articles, writings & even MPs without any caveat or criticism as to the problems & inadequacies in the data collection, gathering practices inherited from colonial era therein. (will elaborate later here). With these in mind, let’s start.
13. Tiruchi Siva’s 2015 bill was by far the most progressive & comprehensive although it had some mistakes (ref to Sections 46–48: ‘Transgender Courts’). It was the first private members’ bill to be passed in over 40 years in Parliament, also with seemingly broader support. However, when the bill came to Lok Sabha, the Govt stated that it shall bring its own bill. What resulted was the 2016 bill version of the Act. The bill was a horrible play at the lives of trans persons with its definition section reinstating the harmful stereotypes that have come to be associated with transgender persons.
14. The Act is no different from its previous versions in the sense that it’s tokenistic and piecemeal (this is CLPR’s website link to the Rajya Sabha debates). Whatever changes in provisions happened is in a large part due to the efforts by transgender persons submitting representations, writing op-eds, lobbying through whatever networks one could access, protesting in multiple states for over the past four years (Please look up Orinam’s website here which shows the statements, media articles). I still remember how many trans, intersex & non-binary persons turned up in Delhi in 2017 to protest the bill (Do read this important piece by Nadika Nadja). I had opened up to fellow trans friends quite before that & turned up in that protest.
15. The predicament repeated itself year after year, even in 2019 when many protested, held multiple press conferences in different ways in different regions & cities, wrote op-eds, posted or came on videos, social media: some as last minute efforts, some as expression of anger, appeal, resistance and support to the past, present & future of our lives. Some of us even joined Pride Parades/Marches to expressly protest, raise awareness, attention on the Trans bill. Some even called, reached out, met or wrote to different MPs across party lines. But it seems, from 2014 or even earlier, to 2016, 2018, 2019, to 2020, trans persons have no real stake in the process. What we were being told again & again subtly or not so subtly is that, “you don’t matter, we know what’s best for you, better than you & we will go ahead with it”.
16. One twitter troll (I can’t vouch that as a generalisation, but nevertheless) even gave me a long message via dm, saying how the current PM Modi’s social justice goals is ‘trans inclusive’ & how I am misleading, this bill is on the agenda to be passed within first 100 days & we ‘armchair activists’ have an agenda to spoil it! (I had a big laugh after this).
17. Let’s start with the definitions laid out in section 2. 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.
If you would notice, nowhere does it define any of these identities except one.
18. 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 & what should matter is their self-identification- a question would be, how many persons/representatives from each of these identities were consulted before including them in this definition?
19. The one thing we all must remember is that each of these identities have their own set of histories, geographical locations, structures, contexts. Are their structures of care and support being recognised? 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 recognised under this Act, as we shall see later.
20. The definition goes on to include person with intersex variations. At first glance, this might appear to be a good definition. But that is not so. By classifying intersex persons under the definition of transgender persons, what the state is essentially saying is that ‘all intersex persons are transgender persons’. However, let me put this clearly, that all intersex persons are not transgender persons. 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. An intersex person may identify as a cisgender person, as an intersex person as such, or as a transgender person. That is the spirit behind the right to self-identification underlying the Constitution of India, reaffirmed in Nalsa. This section violates that.
21. Also this reemphasizes a harmful stereotype both about transgender persons and intersex persons. I remember when I opened up, until now, I am constantly asked, “Are you biologically transgender?”, “Aren’t you born like this?”, “What are your genitals?” and initially I used to be taken aback by this. While this question has come 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.
22. There is a definition of persons with intersex variations in 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;
But does this give any substantial or specific rights to intersex persons, apart from whatever is part of being recognised 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 ideas of a binary. Why does this Act gloriously forget the judgment in Arunkumar v Inspector General of Registration? I would repeat here, what I have stated elsewhere too: the Parliament could not even find the courage or their precious time to actually discuss or even go ahead and ban this surgery. Then for what do you call this Act, ‘protection of rights’? Whose rights & interests is it actually protecting?
23. Finally, nowhere does this Act define gender identity. This makes me wonder, what is the objective of this? If the first and foremost principle is that everyone has the right to self-identification and self-determine their relationship to others in a social context, to a political community, their lives and futures, then why hasn’t the Parliament discussed gender identity? Why hasn’t the Parliament discussed 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? Remember that sex under our Constitution (Read Article 15) has been interpreted to now include gender identity, sexual orientation & sex characteristics. The answer perhaps lies in a certain skewed understanding before and after Nalsa. That earlier gender/sex would mean only male or female. But now, it would mean just the addition of one more category of identity. This ‘third’ based understanding & mere hollow repetition of right to self-identification is the reason why we are where we are. Wherein everyone simply seems to parrot ‘transgender toilets’ without putting in any understanding to what that even means! Read this headline on an initiative in Jadavpur University to establish gender-neutral washrooms/toilets. (Also please do read this piece by esvi anbu kothazham who articulates this very clearly here who I should credit a lot for!)
24. Even if I were to get behind this definition, the credit goes to Tiruchi Siva’s 2014 bill & the recommendations by transgender persons, groups. This is because if one harks back to the 2016 government’s bill, which among other things had this horrible definition: Transgender person means a person who is ‘neither wholly female nor wholly male’ or ‘a combination of female or male’ or ‘neither female nor male’.
This is the product of the cisgender world’s gaze in very explicit terms- all the stereotypes in one go!
25. The older 2016 definition also was the first time we saw an inclusion of the term ‘person with intersex variations’ (without even defining the term/identity).
(Note- the older definition as regards Transgender identity was changed in the 2018 version after much protests & representation by trans individuals and communities from across the country).
26. Dare I ask, what has really changed for us in all of this? & at what cost?
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.
