Third gender, first priority

The landmark Nalsa judgement held that transgender communities have the right to avail of state benefits and the option to identify themselves as a ‘third gender’


Members of the transgender community celebrating the Nalsa judgement. Photo: Virendra Singh Gosain/Hindustan Times
Members of the transgender community celebrating the Nalsa judgement. Photo: Virendra Singh Gosain/Hindustan Times

Last month, a learning centre came up in Kochi to enable transgender persons to complete classes X and XII through the National Institute of Open Schooling. This is, arguably, one of the first such academic institutes to have opened especially for the benefit of transgender students, who drop out of school for multiple reasons, not the least being repeated violence and censure. There are no official figures that pertain to transgender students, which is not surprising, since the third gender itself only became an official identity in 2014.

Last year, 2,567,022 students appeared for their classes X and XII examinations, conducted by the Central Board of Secondary Education. According to the 2011 census, India has the largest population of students in the world. The numbers are both staggering and sobering—how many of these teenagers have been forced to hide their gender identity for fear of harassment; how many have not, and what do they face as a result of this; and how many have dropped out of school altogether, because they have not received the encouragement that their peers have?

The condition of transgender communities in India is a sociocultural anomaly—marginalized by society, shunned for their choice of work, whether sex work or begging, and simultaneously deified for their proximity to the different goddesses. It was only three years ago, in 2014, that the highest court of the country guaranteed their rights as citizens, protected by the Constitution. The landmark Nalsa judgement, as it is called (named after the petitioner, the National Legal Services Authority), held that transgender communities have the right to avail of state benefits and the option to identify themselves as a “third gender”.

This progressive judgement unveiled the prejudice with which society and state treated transgender persons, and underscored the amount of work needed to ensure their social, political and economic equality in contemporary Indian society.

There are several transgender communities with their own specific sociocultural identity, and textual evidence provides proof of their presence in subcontinental history. In modern postcolonial India, transgender communities have been vulnerable owing to hostile laws such as Section 377 (which criminalizes non penile-vaginal intercourse) and Section 36(A) of the Karnataka Police Act (which allows the police commissioner to maintain a register of transgenders), as well as the lack of employment opportunities and access to education, forced marriages, caste oppression, sexual and physical assault, incidence of HIV/AIDS and state-sponsored violence.

Since the Nalsa judgement, a handful of Indian states have constituted a Transgender Welfare Board in order to extend existing welfare schemes to transgender communities. These include Manipur, Odisha, Maharashtra, Delhi, Karnataka and Kerala. However, since welfare is a matter for both state and Centre, India’s federal structure has meant that there is no uniform agenda in place. What’s more, the existing welfare schemes themselves may not always be suited to transgender communities; there has been little or no dialogue with the community to understand its requirements.

This can even be seen in the Transgender Welfare Board constituted by Tamil Nadu long before the Nalsa judgement came out. In 2008, the state created a welfare board for Aravanis—the sociocultural group of transgenders in that region—and almost immediately, several welfare schemes were rolled out for them, including pension, free accommodation, small business loans and free sex reassignment surgeries. During a recent visit to the state, I discovered that the board has indeed benefited a small population of Aravanis, but the mechanism itself is not without its flaws.

There was no dialogue by which the requirements of the transgender community could be communicated effectively to the state—consequently, they were beneficiaries of schemes which were out of touch with their own reality.To take one example, school scholarship schemes didn’t account for the dropout rates of transgender students. There are absolutely no schemes that take the needs of transmasculine persons into account either.

The newly constituted transgender welfare boards are the outcome of collective action by local transgender communities and hold out much promise. Yet their functioning will be based on a proposed law that the Central government is currently debating. Titled the Transgender Persons (Protection of Rights) Bill, 2016, it lays down the procedural requirements of a national-level board. It also makes a provision for a district screening committee to certify a person’s third-gender identity in the form of a transgender card.

While the impetus for certification could well be administrative (to decide the benefits under welfare schemes, and allow for a change of name and gender on government identity cards, for example), it nonetheless strikes at the heart of the Nalsa judgement, which allowed self-identification to be the basis of such certification. In other words, a team comprising a psychiatrist, a medical officer, a government official and another transgender person alone can certify that a person is indeed transgender.

There are other shortcomings of this Bill, which has received censure from some parts of the transgender community. Its failure to recognize the violence committed by the natal family, the remarkably low budget assigned by the Centre, the absence of awareness programmes to sensitize the general population, and the lack of a clear mechanism through which transgender communities can access existing welfare schemes, are among the criticisms of the Bill, currently under review by a parliamentary panel.

For a welfare state to do right by its beneficiaries, it needs to take into account their multiple realities. For a population that has long been denied equality, this is an inflexion point—one which the state can use to correct centuries of historical wrongdoing.

The Sex Talk is a monthly column on gender, sexuality and blind spots. Dhamini Ratnam tweets at @dhamini.

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