According to an estimation survey, there are about two million transgender people currently residing in India. Two million. Yet we somehow manage to overlook their struggles, history, inflict oppressions — fundamentally speaking, we even manage to ignore their primary existence and impose derogatory terms to their identity. For centuries, they have been denied the right to identify themselves as someone who they truly are let alone being provided with basic medical and safety facilities.
Although the transgender people were treated with utmost respect during the reign of Mughals over India, modern-day India recognised one’s sexual orientation as the integral part of personality, dignity, and freedom and identified transgender as a third gender back in 2014 under the Rights of Transgender Bill. Before this historic judgement, the transgender people were identified as per a binary gender lens which recognised them either as men majorly, or some were identified as women on special request.
Ever since the Rights of Transgender Bill was passed in 2014, it has undergone several modifications some of which have also seen criticism and resistance from the transgender community and transgender rights’ activists. The 2016 edition of the bill managed to strip away what lied at the core of the National Legal Services Authority (NALSA) judgment back in 2014. While the 2014 bill provided room for the community to identify themselves either as a man, a woman or a transgender, the 2016 edition demolished the same by restricting their choice to a transgender solely. Additionally, the definition of transgender in the 2016 edition reinforced multiple ‘injurious stereotypes’ and violated the ‘self-identification’ principle by mandating the presence of a third person to certify their gender identity which again was initially guaranteed in the NALSA judgement. Further it omitted the definition of discrimination and nullified the provision of reservations for transgender persons which was initially present in the former draft.
Adding to the pile, the Transgender Persons Act of 2019 was not a lot better than the former. Under the Transgender Persons Act 2019, in order to legally recognise one’s identity as a transgender, the Act made it mandatory for the individual to apply for a ‘Transgender Certificate’ to label their gender as transgender which in turn required the individual to submit a psychologist’s report for the ‘Certificate of Identity’. Moreover, if the individual had undergone a surgery to change their gender to male or female, they would require a ‘revised certificate’ issued by the District Magistrate who had power to judge the ‘correctness’ lied in the hands of the district magistrate. Again, the involvement of third parties — psychologists, district magistrate, medical workers — not only made the process cumbersome for an individual, but also stood against the principle of ‘self-identification’ whilst being humiliating and heavy. The bill was also hugely discriminative due to the provision of a lesser punishment on committing crimes like - abusing the transgender than when abusing a cisgender. The bill also stood unclear on its take on guaranteeing the community access to welfare benefits and civil rights. It also did not clearly state any provisions for affirmative action in education, healthcare and employment or civil rights related to marriage, adoption and property, etc. The bill required the transgender person to be a resident of the jurisdiction of the Magistrate for a minimum period of one year before filing the application to declare their identity as transgender. This was a hugely problematic aspect. Firstly, due to the ostracisation that these people face from family, unemployment, and homelessness in the society and secondly, because other applications like - civil marriage requires the period of only 30 days.
It was finally in 2020 that the compulsion on a medical examination to certify an individual’s gender was removed and replaced instead by the submission of an affidavit for the district magistrate to further process an individual’s application. However, this revision much like the previous ones failed to take a stand on the question of privacy and address the historic social and economic backwardness of the community. The act lacks a restriction in place on any authority to disclose confidential information regarding the applicants and a reservation policy to safeguard the community against the obvious social evils.
Some might argue that the presence of such a conversation is proof enough that the transgender are not far from winning this unfair social war against tyranny and discrimination, I would like to ask how often do we have these conversations in our inner circles or even call out our friendly neighbourhood transphobic acquaintance let alone thinking and meaningfully contributing towards accommodating a ‘societal change’ of such a magnitude. Uprooting a social stigma which has been in place since times immemorial will not only require citizens like us to have these conversations regularly in our circles, but also by doing our bit in educating and calling out the offenders be it our friend or an official in power. With the tiny steps towards safeguarding the trans community, one thing is definite that even though with the scratching of Section 377 of the constitution and decriminalising same-sex relationships the government is steering in the right direction, the trans community still has a long journey to cover to achieve an equal, safe and legally-protected status in the Indian ecosystem.
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Khushi Agarwal
khushi31agarwal@gmail.com
Khushi is currently pursuing her majors in Mathematics from Daulat Ram College, University of Delhi. She loves to talk and is an avid day-dreamer. She wishes to create a lasting impact by not only learning new things, but also by helping anyone and everyone with her journey at the Women’s Development Cell.
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