Why transgender community is struggling in spite of NALSA judgment

On April 15, 2014, the Supreme Court passed a landmark judgment recognising the fundamental and civil rights of transgender persons. Since the judgment, the conversation on transgender rights has expanded into two draft forms of legislation and multiple state-level policies.

The most powerful aspect of the National Legal Services Authority vs Union of India (NALSA) judgment has been its sincere attempt at understanding "identity":

“Gender identity refers to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body which may involve a freely chosen, modification of bodily appearance or functions by medical, surgical or other means and other expressions of gender, including dress, speech and mannerisms. Gender identity, therefore, refers to an individual’s self-identification as a man, woman, transgender or other identified category.”

Excellent as this articulation is, given the developments following the decision, it might also be one that is too good to be true. Though a long and hard struggle preceded the judgment, how much has truly translated to unhinging patriarchy or gender-based discrimination within the agencies of the State?

An imposition of proof

A majority of transgender laws around the world are, in fact, not based upon the principle of self-identification, that is, when the individual chooses their gender identity and the law recognises them by their own declaration and without demanding a third party intervention to affirm the same. This intervention can be an insistence on surgery, a medical diagnosis or any other such practice.

In the United Kingdom, for example, the Gender Recognition Act forces individuals to remain within the binary of male and female with a further bizarre requirement that the person ought to prove that that they are living in their “acquired gender” for at least two years before being legally recognised.

In Australia, individuals’ gender change is only legally recognised after the age of 18 and must undergo gender affirmation surgery or medical treatment of some kind before the State acknowledges them. They must also be unmarried. 

In the Indian context, the community has already has a history of being marginalised because of the perilous construct of post-colonial norms and legislations.

The Transgender Persons (Protection Of Rights) Bill, 2016, can be cited as the latest addition to the list of disappointments. Though it is claimed to be a principled follow-up to the NALSA judgment, it fails miserably to protect the right of self-identification. From its initial definition - “transgender person means a person who is neither wholly female nor wholly male” - the Draft Bill undermines the spirit of the NALSA judgment.

And if that were not enough, it then goes on to set up a screening committee that will determine the genuinity of an individual’s identity.  The question that emerges is - can one be rejected by the committee? And if so, then does that not violate Articles 14 and 21 of the Indian Constitution? Is it not unconstitutional legal gender recognition for an identity and subsequently brings about institutions or procedures that undermine the dignity of that person’s identity?

Incidentally, the problematic Draft Bill has not yet been passed in Parliament. However, the initiation of the Draft Bill has not prevented or stopping discrimination or harassment, which people of trans-identities already face at the hands of State agencies.

The text of the NALSA judgment ends with a demand from the Supreme Court that the central and the state governments uphold the right of transgender persons to decide their self-identified gender; and pursuant to this, be granted full legal recognition towards the same.

The instruction implies that the government has to take serious steps to integrate the community, not just within its planning and implementation of welfare policies, but more immediately to set up procedures to acknowledge the gender identity of these individuals.

In an effort to track responsive developments to NALSA, it paradoxically emerges that state agencies now have an onus to further harass transgender persons who are trying to seek relief through the judgment.

In a recent response to an RTI application filed by the human rights collective Alternative Law Forum, the regional passport office in Bangalore stated that the following documents needed to be furnished for issuing a passport to a transgender person:

“A sworn affidavit regarding the change in sex along with a certificate from either a surgeon or government hospital where the person has undergone medical treatment or a medical examination from a chief medical officer in a government hospital. Include two identity documents bearing new name and gender and a fulfilment of change of name procedure as prescribed by the passport office." 

The requirements laid down by the ministry of external affairs are skewed as well as unreasonable, thus making this process more difficult for transgender persons. The insistence on a "certificate from a surgeon" does not acknowledge individuals who are pre-operative or have chosen to not have surgery. It does not recognise the principle of self-identification or self-declaration that is fundamental to the principle laid down in NALSA.

This aside, the sex re-assignment surgery, including hormone therapy, is an expensive affair and often inaccessible medical procedure. Most members of the transgender community come from challenging economic circumstances, and social stigma barely allows them to access regular medical attention, let alone anything surgical or specialised.

The inclusion of "two identity documents bearing new name and gender" proves to be another unwarranted obstacle, because the ministry of external affairs makes the absurd assumption that transgender persons might have had some pre-existing method to acquire identity documents in the gender of their choice prior to NALSA.

Multiple accounts of neglect, mistreatment and provocation have been shared by those who have tried to apply for passports. Officers have been cited to pass rude comments and casual remarks about the physical features of applicants. Additionally, if any of the above mentioned requirements are not furnished, the application is rejected or the applicant is forced to make repeated futile trips to the passport office.

Why self-declaration?

Countries like Ecuador, Colombia, Argentina, Denmark, Italy, Ireland and Malta as well as the city of New York in the United States have allowed people to self-identify/declare their gender without medical intervention or the need for a doctor’s certificate. These positions were taken to address the fact that any system, entity or legislation would act as a filter to self-declaration. Such regulations are often used as a way to disenfranchise transgender people and isolate them further.

The Supreme Court invoked constitutional morality through its reflections on this issue within the NALSA judgment. Constitutional morality does not underline the speculative attitudes of any majority, be it political or communal. It urges the judiciary (and the society) to transcend popular notions, religious or cultural traditions and approach justice with an admission of responsibility and a commitment to protect. Safeguarding the rights and liberties of minorities is the epitome of inclusivity regardless of how "unpopular" such a minority may be.

The transgender community is a minority group that has borne a history of incessant discrimination, state sanctioned violence and systemic marginalisation. The inclusion and acceptance of the diversity of experiences under the umbrella of "transgender" can be realised fully only when there is a liberty to each individual to claim their identity and be legally recognised for it.

The right to self-identification and its inherent value is further elaborated through NALSA’s reference to Principle 3 of the Yogyakarta Principles whereby:

“Everyone has the right to recognition everywhere as a person before the law. Persons of diverse sexual orientations and gender identities shall enjoy legal capacity in all aspects of life. Each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom. No one shall be forced to undergo medical procedures, including sex reassignment surgery, sterilisation or hormonal therapy, as a requirement for legal recognition of their gender identity.”

It is also important to be conscious of fact that transgender persons are most vulnerable to physical violence, sexual violence, neglect, oppression and social stigma. In light of these challenges, forcing individuals to ‘out’ themselves or denying them of choosing their most comfortable identity, is inevitably placing them in detrimental circumstances.

The Aadhar agenda

The push for identity documentation is also something the private sector is using as an excuse to delay job opportunities and holding back on offering formal appointments, while citing identity-based technicalities as the issue. Eventually, the job is never offered or the transgender candidate never selected.

Departments like Pre-University Education Board, the Karnataka Secondary Education Examination Board and other institutions which are instrumental to establishing "educational qualification" have still not responded to RTI applications for their respective procedures. In-person enquiries are dismissed stating staff and officials are not aware of any such judgment, nor have they received any instructions from the State to process gender change in documents.

As one transwoman shared with this author, after suffering the bureaucracy for over six months while trying to get her documents: “The judgment is now being used to push us into acquiring identity documents for jobs or possible welfare entitlements. But, every experience with these government officials makes me wish they never knew of my existence.”

What is interesting is that the Aadhar Card has been, comparatively, the easiest document to acquire for transgender persons. The Aadhar (UID) system is already notorious for its potential to violate privacy, and the cost of that could be fatal for transgender persons. Given the concerns around surveillance through data collection, coupled with the fact that the community has a history of being criminalised and persecuted, there is a well-founded concern that the data could be seriously misused.

The media already caught up to this defilement, when a few months ago TV9 (a Kannada news channel) used a “spy camera” to allege that several transgender individuals were responsible for “abduction and causing grievous injury” to a person who wished to be part of the community.

The matter is currently sub judice. The incident set off a police rampage into the homes of many other transgender persons under the guise of investigation. Many transgender women, unrelated to the incident, were threatened and the instances have since impacted the community adversely. The misuse of information collected via Aadhar would allow agencies of the government to profile and track the community.

To what end?

It is clear that mere formalisation of identity does not immediately result in the transgender community’s freedom from oppressive patriarchal structures nor are they protected from the casual daily ostracisation inflicted by the society and State. It is also evident that the State and central agencies have done little to take cognisance of the NALSA judgement. What is executed is a distorted, erratic system that contributes to the marginalisation and policing of the community.

Transgender persons must be recognised without the contingencies of medical diagnosis, without forms of stereotypical certification or the intrusion of arbitrary entities that refuse individuals to be the truest expression of themselves.

If any legislation is rolled out, it must reflect the principle of self-identification and self-declaration, and focus on addressing the substantial challenges faced by the community.

Also read: What if we could no longer tell who's gay, lesbian or transgender