Over the past decade, nations across the world have witnessed momentous public support for reforming laws in the direction of gender sensitisation. Governments have been compelled to accommodate the concerns raised by different interest groups, in the form of demands for such things as special legislation, legal recognition of different gender identities, decriminalisation of same-sex intercourse, and the extension of marriage and adoption rights to same-sex couples and non-binary people.
While many governments have come forward with new laws that seemingly ensure the emancipation of various gender groups, some of these have proven to be more detrimental than beneficial. One such legislation is India’s 2019 Transgender Persons (Protection of Rights) Act.
The Socioeconomic Conditions of Transgender People in India
Transgender people—often referred to as hijras, eunuchs, Kothis, Aravanis etc.—have been part of Indian society for centuries. They are frequently mentioned in ancient Indian texts and scriptures, Indian epics and popular mythological folklore. In the medieval period, transgender people played an important role in the royal courts and sometimes acted as bodyguards to queens and princesses.
The social condition of the transgender community underwent a drastic change under British colonial rule. In 1871, the colonial government passed the Criminal Tribes Act, which criminalised crossdressing. This draconian legislation was based on Victorian morality and assumed that all transgender people or eunuchs were involved in criminal activities, such as castrating children and kidnapping minors.
For the British government, transgender people were an “opprobrium upon colonial rule” and their very existence was a “reproach” to the British state, which sanctioned an organised form of social ostracization that resulted in the term eunuch gaining derogatory associations. English translations of the Indian texts portrayed transgender people and eunuchs as “weak, cowardly and immoral individuals who had deviated from the predominant two-sex model valued in Europe.”
Today, the transgender people who are part of India’s hijra community are usually seen in “glittering dresses with their faces coated in cheap makeup while they sashay through the crowded intersections, knocking on car windows with the edge of a coin and offering blessings … they crash fancy weddings and birth ceremonies while singing bawdy songs.”
Many Indian transgender people are compelled to work as sex workers, since, according to a report by the United Nations Development Programme (India), the social stigma associated with their gender identity bars them from other employment. Over the years, public disapproval and humiliation have diminished respect for this community and compelled them to maintain a secretive subculture.
Legal Reforms for Transgender People in India
In the 2014 case National Legal Services Authority (NALSA) vs. Union of India, the Supreme Court of India declared that “self-determination of gender is an integral part of an individual’s personal autonomy and self-expression” and therefore a fundamental right protected by the Indian constitution. This landmark judgement emphasises the “individual’s power” to decide their own gender identity and rejects a medically determined objective standard. This means that transgender people in India have a constitutionally protected fundamental right to identify their own gender identities, as a matter of personal autonomy.
Problems with India’s Transgender Persons Act
The Supreme Court judgment laid the foundations for the 2019 Transgender Persons (Protection of Rights) Act. This legislation, however, presents the following problems.
Government Verification and Approval Is Needed in Order to Be Identified as a Transgender Person
The law lays down provisions governing the procedure required for recognition as a transgender person. The applicant must submit documents to a local government officer (i.e. the district magistrate), who grants the applicant a certificate of identity, thereby recognising the applicant’s self-perceived change in gender.
If the applicant wishes to undergo gender reassignment surgery, they have to obtain a certificate from a medical officer. This medical certificate has to be shown to the government officer, who “on being satisfied with the correctness” of the report, can issue a revised certificate of identity, thereby acknowledging the applicant’s biological change in gender.
The principal criticism of this procedural mandate is that it differentiates between two ways of perceiving gender: self-perceived and biological. The judgment of the Indian Supreme Court clearly upholds the “right to a self-perceived identity.” Why, therefore, does the Indian legislation talk about a “post-surgical” recognition of gender identity—shouldn’t self-perceived identity suffice?
In the 1991 Australian case of Re Secretary, Department of Social Security and HH, for example, the Administrative Appeals Tribunal noted that it is the “psychological and emotional aspect of an individual’s mind which should primarily decide their gender and not the biological aspects.”
The right to privacy is a fundamental right in India and the demand that the applicant divulge their medical reports raises privacy concerns. It is also unclear how a government officer could assess the accuracy of a medical report, since the legislation does not provide any objective parameters to determine this. This ambiguity is bound to create difficulties for applicants.
Transgender People Cannot Reside Alone or With Other Transgender Individuals
In India, transgender people usually live in hijra communities, exclusively comprised of transgender individuals.
The new law compels all transgender individuals to either live with their “biological families” or reside in state-run rehabilitation centres. The law does not give them the freedom to live in hijra communities, where they may find solace and social acceptance from other transgender people.
Indian society has deeply entrenched social prejudices. Many transgender people are disowned by their biological families and shunned by society. In many instances, parents and relatives have turned violent on learning of these individuals’ gender preferences and the family residence itself has become the site of violence. Most transgender people are therefore forced to flee or abandon their families and join the hijra communities in search of social acceptance and emotional support.
A hijra community may be best described as a non-normative family. Every hijra community or gharana (as they are called in India) has its own strict customs and rules. A transgender person who wishes to join one of these communities has to follow an established procedure. They must first approach an existing member of the community, who will become the applicant’s mentor (guru). The mentor, who is also a transgender person, is usually a senior member of the hijra community.
The mentor–mentee relationship and the support from the other members of the hijra community are extremely important. The community members not only share a common gender identity but are united by an emotional bond, which helps them endure the discrimination they suffer in our conservative society. The provisions of the new law threaten to destroy this shared bond.
As per the new law, a transgender person, whether minor or adult, has two options: either stay with their parent or a member of their biological family (who are not transgender people) or stay in a state rehabilitation centre. This extremely intrusive form of societal policing would mean that transgender individuals would no longer be able to reside alone or with other transgender people of the hijra community.
By compelling transgender people to reside with their cis-gendered heterosexual family members who may disapprove of or be insensitive to their form of gender expression, the legislation adds to the existing worries of the transgender community. For many, returning to the family home would mean returning to the toxic and violent domestic atmosphere from which they have escaped.
The law therefore deprives transgender people of one of the most basic human rights: the right to choose where and with whom they wish to reside.
No Reservations for Transgender People
Unfortunately, the new legislation does not make any reservations for community members in educational institutions or government jobs. The Indian constitution provides reservations (a form of affirmative action) and special amenities for socially and educationally backward classes, but the transgender community has not been added to the list of underprivileged groups.
The transgender community has been on the receiving end of continuous discrimination for many years. This has prevented them from gaining equal access to resources. The present government should therefore have introduced reservations as part of the new law, to enable the emancipation of this community. The absence of this has garnered severe criticism from a number of transgender rights activists.
How has the COVID-19 Pandemic Affected Transgender People in India?
The transgender community has been badly hit by the pandemic and the countrywide lockdown imposed by the government. Mainstream Indian society has always maintained both a physical and a social distance from the transgender community. With every passing day, the pandemic has widened this distance.
Discrimination has increased to the point at which people have been discouraged from even interacting with transgender people. This discriminatory behaviour has been influenced by the common prejudice that transgender people reside in unhygienic conditions and are therefore more likely to be carriers of the virus. Members of the community have also been asked to vacate their rented accommodations. Testimonies inform us that the entire community has been facing discrimination when it comes to accessing basic healthcare, such as hand sanitisers and access to COVID-19 testing centres.
Most of the Indian transgender population have also lost their means of livelihood. In India, transgender people do not work in the organised sector of the economy. Their main sources of income are begging, sex work and performing at ceremonies, such as marriages. Obviously, these professions cannot be carried out via video conferencing. Such work transgresses the norms of physical distancing that have been put in place to control the spread of the pandemic.
Transgender interest groups throughout the country have demanded immediate intervention by the government. Measures such as a special economic package have been proposed to remedy some of these problems.
The present crisis brings with it a number of unprecedented hardships. However, it also provides a brilliant opportunity for every country’s government and citizens to introspect upon their societal problems and to break the shackles that have been holding them back from further development.
The struggle has not been easy. Different countries are at different stages of moving towards a more equitable and just societal atmosphere of gender sensitivity. But we, the people of India, have a long march ahead of us before we can hold our heads up proudly and know that we have achieved full transgender rights.