• Stambh Organization

Looking Beyond the Binaries


Introduction

Although used quite interchangeably, gender and sex are quite different. While sex refers to the biological genitalia a person is born with, gender is a social construct. It refers to the socially identified characteristics essential to living in a society. While sex can be chromosomal – male and female and intersex; gender comes on a much broader spectrum. Any gender, other than the two socially accepted ones, man and woman, is termed as non-binary.

In India, transgender people are fondly called hijras, which are neither men nor women by the virtue of birth. Even though they are not psychologically women, they do get up as women. Hence, they claim to be an institutional 'third gender'.

Hijras included emasculated and non-emasculated men, and intersexed people. Transgender also includes people who intend to or have gone under sex reassignment surgery, popularly known as SRS.

Hijras carry a special place in Hindu society, largely owing to their divine loyalty to Lord Rama. They are quite hard to miss in glistening sarees, bold makeup and crashing the festivities. People often have mixed reactions upon seeing hijras – starting with fear, ending in laughter, and a divine sense of auspiciousness radiating from them.

However, outside these festivities and sarees, these people are greatly exploited, owing to the stigma and sexual fetishes of the cis population, mainly cis men.

Transphobia: Instances of Systematic Failure

India recognized the third gender with a landmark judgement, National Legal Service Authority v. Union of India [1], famously called the ‘NALSA Judgement’.

Held:

à Transgender is an umbrella term for people whose gender identity and expression do not conform with their biological sex.

à Art 14 doesn't restrict the word 'person' to the binaries. All people, including the transgender and the non-binary, come under equal protection before the law in all 'State spheres'. Discrimination on the grounds of sexual orientation and gender identity does violate Art 14.

à The discrimination ground, ‘sex’ in Art 15 and 16 is not just limited to biological sex, but also intended to include people who consider themselves neither male nor female.

à Gender identity is an integral part of Art 19 and 20.

à Recognized them as a socially and economically backward class, and acknowledging that the community is subject to violence in India, said they must have access to justice.

Even after 5 years after the judgement, the Government failed to enact suitable legislation to give effect to the judgement. The community faces sexual and physical violence in and outside policy custody and are falsely booked by the police[2]. Further, the transgender population has the right to self-determination of identity, which would later become their legal identity[3].Despite this, most transgender people do not have any legal documentation as a result of which they are unable to receive vaccination [4] as well as certain monetary benefits [5].

Due to lack of concrete legislation, there have been several instances, where, based on NALSA judgment, individuals had to move to court to file for amendments in certain acts, or owing to the gross violation of their rights guaranteed by the NALSA judgment. However, no action was taken in either case [6].

However, Government did introduce concrete legislation, Transgender Persons Act, 2019, to give the judge a legitimate direction. However, there exists an immense vacuum between the judgment and the legislation – the act now requires people to obtain psychological certificates for 'new identity, and a certificate by a medical professional, if undergone an SRS [7]. This goes against the provision of self-determination and declaration of identity for seeking legal recognition [8]. Many transgender people do not have the resources to obtain psychological certificates, which results in no legal recognition whatsoever. Further, reduction in punishment regarding sexual offences against transgender people (as compared to against a cis woman) [9] reinforces the unequal stature of the community. Further, the act criminalizes begging [10].

The act completely ignores a whole lot of core issues – marriage and adoption, political representations, reservations etc., and hence, has come under heavy scrutiny.

Recommendations and Conclusion

We can start by including pro-LGBTQ content in the school curriculum, launching awareness campaigns and introducing some political representation for the transgender community to consult in the enactment and implementation of laws. Teaching and learning gender-neutral words can go a long way in reducing day-to-day stigma and transphobic content.

India still has a long way to go, in terms of being trans-inclusive. The judgment is not enough, since the government has not done enough. It took five years to come up with a concrete law, which didn't even address the core issues of the trans population. The government has also ignored certain mandated directions by the judgments – like incorporating the community in the SEBC category and making reservations for them.


About the Author

Ria Ghelani

Research intern

The Stambh Organization, India

, [1]National Legal Service Authority v. Union of India, 2014, 5 SCC 438. [2]Police harass transgenders most, says study’, (Times of India, 18th April 2016), http://timesofindia.indiatimes.com/articleshow/51869919.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst, accessed 1st Nov 2021. [3]Ibid., q1. [4]Riya Singh Rathore, ‘Thousands of India's transgenders are missing vaccines due to fear, follies and lack of IDs’ (Business Insider India, 30th June 2021), https://www.businessinsider.in/india/news/thousands-of-indias-transgenders-are-missing-vaccines-due-to-fear-follies-and-lack-of-ids/articleshow/83990511.cms, accessed 1st November 2021. [5]Shreya Raman, ‘Transgenders can't get state benefits as most official data ignores “other”’, (Times of India, 11th June 2021), https://www.business-standard.com/article/economy-policy/denied-visibility-in-official-data-transgenders-can-t-access-benefits-121061100148_1.html, accessed 1st November, 2021. [6]Megha Chandra, ‘The Effect Of The NALSA Judgement On Inclusion Of The Transgender Community (Part 3) (Ungender, 4th August, 2020), https://www.ungender.in/nalsa-judgment-analysis-human-rights-trans-community-india-ungender/, accessed 1st November, 2021. [7]Transgender Persons Act, 2019, s5. [8]Supra, q4. [9]Transgender Persons Act, 2019, s18. [10]Transgender Persons Act, 2019, s19.

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