Denial of Identity - The Transgender Persons (Protection of Rights) Act

Content Warning : Mentions of Transphobia, Violence

With the passing of the Transgender Persons (Protection of Rights) Act, 2019 and the multi-faceted discourse around it, it is important to understand whether the state is actually taking the right measures to give trans people the rights that they deserve, or if it, through this law, is threatening the very existence of the trans community in India.

In a previous article, we had discussed why and how the Transgender Persons (Protection of Rights) Act, 2019 is so problematic and is just another sign of the systematic and state sponsored oppression and marginalization of trans people (click here to read).

What we will be discussing here is how the language of the law in itself is problematic, the first problem being how it does not even acknowledge the existence of non-binary trans folks. The law fails to take into consideration that the term ‘intersex’ and the term ‘transgender’ are not interchangeable. The World Health Organization regional office for Europe describes sex as characteristics that are biologically defined, whereas gender is based on socially constructed features. They recognise that there are variations in how people experience gender based upon self-perception and expression, and how they behave.

A transgender individual is one whose gender does not align with their assigned sex at birth while an intersex individual is a person who is born with sexual anatomy which does not fit the boxes of ‘male’ or ‘female’. Not every transgender individual is born with intersex variations and not every person born with intersex variations is a transgender person.

This has led to a vague categorization known as “Third Gender” which haphazardly throws in communities like hijras and eunuchs without any particular consideration of their feelings and identities. This is problematic again, due to the fascination with trans identities that fit into existing gender binary. This causes cis people to not think too much when considering identities outside the binary like non-binary trans people - genderfluid, gender non-conforming, agender, bigender etc.

This language used by the state directly indicates at the horrifying dismissal and denial of non-binary trans identities and marginalized genders by the society because of the logic- what rights will they ask for if they do not exist in the first place.

This is how the oppressors keep the oppressed as oppressed.

Another problem that needs to be addressed here is how the law classifies the transgender community as the “third gender”. This implies a hierarchy of genders, assuming that there are other more acceptable and superior genders. This also others the trans community which is a problem that also distinctively leads to the stigma and shame around the trans community by the upper caste cisgender heterosexual oppressors. Terms like “third gender” reinforce the already strict category of gender that trans people are trying to escape. It groups all non binary identities together, thus creating this: man, woman, third gender. Nothing exists beyond that despite the term “non binary” being a spectrum with dozens, if not hundreds of different identities within it.

It is clear this government is not concerned with helping the trans community from the flagrant disregard of the NALSA (National Legal Services Authority v. Union of India) 2014 judgement. This judgement was applauded for the fact that it stressed the self determination of gender identity, however, in direct violation, the Transgender Persons (Protection of Rights) Act, 2019 requires intrusive scrutiny and what is referred to as “Sex Reassignment Surgery (SRS)”, in outdated and offensive language, to even let the law recognize identity. This is a direct violation of the fundamental “Right to Privacy”.

The link to our other article discussing this issue along with other fundamental issues with the Transgender Persons (Protection of Rights) Act, 2019 (Trans Act) can be found here.

Let us talk about how the law uses the offensive term “Sex Reassignment Surgery” instead of the term “Gender Affirmation Surgery”. Usage of such outdated and offensive language is not acceptable and implies that getting surgery is a choice for a trans individual, while for many it is not. For many people, surgery is a necessity for them to fight their gender dysphoria and to live comfortably, but at the same time, surgery is not what everyone wants for themselves and it is also cost prohibitive. The law does not take this into account and makes surgery compulsory which again, is a violation and oppressive. Another thing to note here is that the term “sex reassignment” also implies that the only way to change your assigned sex at birth is by undergoing an invasive and risky procedure. While “assigning” a gender at birth requires no such process. Why should someone’s opinion about the nature of one’s genitalia determine their identity? Why should one have to go through something so horrific just to get an “M or F” symbol on their passport? It is violence.

Someone assigning a vagina as female, does not make it female and one should not have to change its appearance for it to NOT be female. They just need to say that it’s not a female body part.

Other problems with the act, regarding the documentation required and the issues with it, rehabilitation centers and the punishment one can receive for sexually assaulting a trans person have been discussed in the article which can be found here.

A major issue that arises here is how the law does not contain any affirmative action for people of the DBA (Dalit Bahujan Adivasi) communities who identify as trans. These are communities that have been systematically oppressed for centuries by upper caste (UC) cisgender heterosexual folks and have been disadvantaged and marginalized. Intersectionality is crucial and key for any real progress and “upliftment” to happen. Affirmative action for DBA trans people is essential and direly needed in order for trans people as a whole to actually be able to get an education, jobs etc. and to be at par with UC cisgender heterosexual people because currently they are very disadvantaged, even more than UC trans people, as trans people from DBA communities do not have caste privilege which UC trans people do. No real progress can ever happen for any community if equal opportunities and level playing field for the marginalized sections within that community are not present.

UC mainstream LGBTQIA+ activism is currently drowning out the actual needs of the community by demanding things like the legalization of “same sex” marriage while staying silent on the fact that hostile, oppressive laws are criminalizing and killing trans people. This kind of activism excludes trans people, the very people who were the first ones to fight for the liberation of the community as a whole, and trivializes their issues. Marriage, a

cis-heteronormative patriarchal institution, should be the last priority while the passing of anti-discriminatory laws, protection of trans rights, healthcare for the community, repealing of the Trans Act, affirmative action for the marginalized sections (DBA people) within the community, should be the primary focus. Repealing the Trans Act should be a more important focus than legalising “same sex” marriage, which only caters to cis queer people and not to trans people, as this law is putting trans lives in danger. UC cisgender heterosexual and also queers need to stop sidelining trans rights and trans lives.

It is very evident and safe to say that the trans community had not been consulted while making this oppressive law. This was not made for the trans people by the trans people and for any real change to happen for the community, we need trans people, specifically trans people from DBA communities, to be in power and be actively involved in the legislation process. We need the community’s voices to be heard in order for any upliftment to take place for them.

It is therefore important for one to understand that

“Ally” is a verb, not just a noun.

Being an ally means holding your family, peers and the government accountable for its transphobic activities and sentiments. Educating oneself about these issues and about the trans community is imperative and so is listening to trans people’s experiences and concerns. Understanding that intersectionality is key, holding the people in power accountable, organizing fundraisers for trans people, offering social and emotional support to them are some other important ways of being an ally.

One needs to understand that patriarchy, gender oppression are some things in India which stem from Brahmanism and Brahmanical patriarchy.

True liberation can and will only take place when Brahmanism is totally abolished.

This article was written and edited by people from the trans community.