• 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 live in a society. While sex can be chromosomal

– male and female and inter-sex; 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, that 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 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 cis population, mainly cis men.

Transphobia: Instances of Systematic Failure

India recognized third gender with a landmark judgement, National Legal Service Authority

v. Union of India 1 , famously called the ‘NALSA Judgement’. Held:

  • Transgender is an umbrella term for people whose gender identity and expression do

not conform with their biological sex.

  • Art 14 doesn’t restrict the word ‘person’ to the binaries. All people, including the

transgender and the non-binary come under the equal protection before law in all


  1. National Legal Service Authority v. Union of India, 2014, 5 SCC 438.


‘State spheres’. Discrimination on the grounds of sexual orientation and gender

identity does violate Art 14.

  • 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.

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

  • 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, Government failed to enact a 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, 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 a 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 a concrete legislation, Transgender Persons Act, 2019,

to give the judgment a legitimate direction. However, there exists 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 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 school curriculum, launching awareness

campaigns and introducing some political representation for 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. Clearly, 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 trans population. Government has

also ignored certain mandated directions by the judgments – like incorporating the

community in SEBC category and making reservations for them.


Reference

2 ‘Police harass transgenders most, says study’, (Times of India, 18 th April, 2016),

http://timesofindia.indiatimes.com/articleshow/51869919.cms?utm_source=contentofinterest&utm_medium=te

xt&utm_campaign=cppst, accessed 1 st 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, 30 th 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 1 st

November, 2021.

5 Shreya Raman, ‘Transgenders can't get state benefits as most official data ignores “other”’, (Times of India,

11 th June, 2021), https://www.business-standard.com/article/economy-policy/denied-visibility-in-official-data-

transgenders-can-t-access-benefits-121061100148_1.html, accessed 1 st November, 2021.

6 Megha Chandra, ‘The Effect Of The NALSA Judgement On Inclusion Of The Transgender Community (Part 3)

(Ungender, 4 th August, 2020), https://www.ungender.in/nalsa-judgment-analysis-human-rights-trans-

community-india-ungender/, accessed 1 st November, 2021.

7 Transgender Persons Act, 2019, s5.

8 Supra, q4.

9 Transgender Persons Act, 2019, s18.

10 Transgender Persons Act, 2019, s19.


About the Author –

Ria Ghelani is a second-year BA LLB student at NMIMS,

interning with Stambh, with a strong passion for all things mental health,

education and LGBTQ+ community.


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