The Struggle for Transgender Identity

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Transgender rights in India hinge on a Supreme Court judgement, and a battle of bills between the Lok Sabha and Rajya Sabha.

Despite 69 years of democracy, transgendered people in India continue to face routine acts of discrimination and identity-deprivation. A landmark Supreme Court judgment in 2014 seemed set to change this – guaranteeing them the same rights as other Indian citizens.

The judgment was followed by a bill being passed in the Rajya Sabha – the Rights of Transgender Persons Bill, 2014 (passed on April 24, 2015). It was the first private bill to be passed in the Rajya Sabha in 45 years and was largely welcomed by trans activists. For a while, it seemed as if progress had been made.

Though India trailed nations like Pakistan and Nepal in passing this judgment, it left the country in better adherence to the Universal Declaration of Human Rights. As a UDHR fact-sheet states:

The equality and non-discrimination guarantee provided by international human rights law applies to all people, regardless of sex, sexual orientation and gender identity or ‘other status.’ There is no fine print, no hidden exemption clause, in any of our human rights treaties that might allow a State to guarantee full rights to some but withhold them from others purely on the basis of sexual orientation and gender identity

The Transgender Person’s (Protection of Rights) Bill, tabled in the Lok Sabha in March 2016 could change this. It requires trans-genders to produce a certificate of identity to invoke the rights under the bill. This certificate will be granted by a District Magistrate on the recommendations of a screening committee, comprising “a medical officer, a psychologist or psychiatrist, a district welfare officer, a government official, and a transgender person”.

For trans activist Vyjayanti Vasanta Mogli, this is a classic conflation of sex and gender.

It’s not a question of biological sex, it is a question of gender and these two are separate. What lies between the thighs of a person, whether that is a lump of flesh or an orifice, does not and cannot determine a person’s gender. People’s gender cannot refer to their anatomy. That is safely enshrined in the National Legal Services Authority (NALSA) vs Union of India judgement by the Supreme Court.

Vyjayanti identifies as a trans woman. She is a student of Public Policy at the Tata Institute of Social Sciences, and a recognized voice in the community. She says the transgender community largely welcomed the Rajya Sabha Bill, but that the 2016 Lok Sabha Bill is “draconian, poisonous and radioactive.”

The Supreme Court judgement, which is quite in line with the jurisprudence of almost all developed society nations, across the world, upholds the principle of self-identification, separates gender from biological sex and the anatomy of the person, and it does not require verification.

The need for medical verification of gender compounds the problem, particularly since the Bill does not provide for any special sensitivity training or expertise to be required of the Screening Committee.

The transgender community suffers across the board. With very few in possession of identity cards that display their gender, they are in danger of being omitted from most welfare schemes. Many are forced into begging or prostitution, for want of other options. HIV rates amongst transgenders are several times higher than the national average.

But Vyjayanti’s own experience with bureaucracy has been frustrating. She feels the private sector has not been inclusive either – with “LGBT friendly” policies tending to include only gay, lesbian or bisexual people in their ambit.

The endemic discrimination faced by the community opens up the question of reservation. The 2014 Supreme Court Judgement directed the “Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments. However, the 2016 Bill makes no mention of reservation. It has since been referred to a Standing Committee of the Ministry of Social Justice and Empowerment.

According to the 2011 census, over four hundred and eighty thousand people belong to the transgender community. Given this, there is a strong impetus for government and society to understand both affirmative action and self-affirmation of identity if transgender rights are to be enabled.


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