Home >mint-lounge >features >LOUNGE OPINION: Why the transgender verdict is an incomplete one

15 April, the day Tamil Nadu constituted the country’s first Transgender Welfare Board in 2008, was a well-chosen day to honour the right to life and dignity of trans people in India. In its wisdom, the Supreme Court in its judgement in the National Legal Services Authority (NALSA) v. Union of India & Others case came very close to, but just short of, doing that.

While I stand in solidarity with my trans sisters and feel humbled at this almost unbelievable moment of their recognition in law, a moment that carries the promise of release from a historical burden borne too long, I know that for many of them who are allies of the trans masculine, intersex and inter-gender communities, the victory is an incomplete one.

For, in the 130-page judgment of Justices K.S. Radhakrishnan and A.K. Sikri, not a single page carried any of the following words: FTM (Female to Male), Transman, Intergender, Bhaiya, Babu, Kotha, FTK (Female to Kotha), Thirunambi, Genderqueer, Gandabasaka—some common terms used by members of the trans masculine, intersex and inter-gender communities for their identities and/or expressions. Nor did the judgement have one example of the extremely difficult and invisible lives of persons from these non-traditional trans communities.

This is not surprising, given that the expert committee convened by the Union ministry of social justice and empowerment (MSJE) to examine issues relating to transgenders failed to both imbibe, as well as deliver to the court, any other perspective but that of the traditional trans feminine communities. In October, when the Supreme Court reserved judgement on the case, the expert committee sought to conduct a study and report its findings to the court. However, instead of making a full-fledged effort to seek representation across caste, class, ability and other such intersectionalities from within the trans masculine, intersex and inter-gender communities, the ministry invited all of two persons. Over three months and many meetings, the MSJE delivered its report (http://socialjustice.nic.in/transgenderpersons.php). It is a revealing fact that while the trans feminine persons on the committee were listed as members, these two were called in the capacity of special invitees. Why this lack of equal status, why this tokenism in addressing any trans community in India other than traditional trans feminine communities? Why this erasure?

So, who is this judgement really about?

Let’s take a look at some of the sections.

In point 82 (1), the right of a person to have the gender of his/her choice states:

“When a child is born, at the time of birth itself, sex is assigned to him/her. A child would be treated with that sex thereafter, i.e either a male or a female. However, as explained in detail in the accompanying judgment, some persons, though relatively very small in number, may be born with bodies, which incorporate both or certain aspects of both male and female physiology. It may also happen that though a person is born as a male, because of some genital anatomy problems his innate perception may be that of a female and all his actions would be female oriented. The position may be exactly the opposite wherein a person born as female may behave like a male person."

Then, in point 109, the judgement seeks to nail these “persons" down: “Therefore, we make it clear at the outset that when we discuss about the question of conferring distinct identity, we are restrictive in our meaning which has to be given to TG community i.e hijra etc., as explained above"

By “above" the judgement is referring to point 107: “At the outset, it may be clarified that the term ‘transgender’ is used in a wider sense, in the present age. Even Gay, Lesbian, bisexual are included by the descriptor ‘transgender’. (…) However, while dealing with the present issue we are not concerned with this aforesaid wider meaning of the expression transgender."

And then, point 108: “It is to be emphasized that Transgender in India have assumed distinct and separate class/category which is not prevalent in other parts of the World except in some neighbouring countries. In this country, TG community comprise of Hijaras, eunuch, Kothis, Aravanis, Jogappas, Shiv-Shakthis etc."

Nothing could have triggered dysphoria more than the manner of these descriptions. In the celebrations following the granting of the third gender category, what is lost to all of us at this moment is the deep-seated transphobia of what is otherwise being hailed as a victory. If a “genital anatomy problem" is what establishes transgender persons as different from male and female, then this judgement has failed to challenge the very foundational ideas of gender.

While international conventions like the Universal Declaration of Human Rights, International Covenant on Civil & Political Rights and even the Yogyakarta Principles are referred to across a large part of the judgement, and while Aristotle, Kant, Benthem, Blackstone and Rawls are liberally thrown in to outline the evolution of legal philosophy, the biological underpinnings and gender essentialism of this judgement, and the language it uses, cannot be lost in any close reading of the text. The claims to modernity being made through all these references are empty while the text simultaneously upholds the life and dignity of traditional trans feminine persons primarily because of their historicity and mention in religious scriptures.

The first line of the judgement states: “Seldom, our society realizes or cares to realize the trauma, agony and pain which the members of Transgender community undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex" (the emphasis is mine).

The sentence could have equally been but was not: Seldom, our society realizes or cares to realize the trauma, agony and pain the members of transgender community undergo, nor appreciates the innate feelings of the members of the transgender community, caused by society’s own insistence on making biological sex and reproduction as its central organizing principle.

It is befitting to end with a quote by the author Amin Maalouf, “For it is often the way we look at people that imprisons them... And it is also the way we look at them that can set them free."

Satya is a transman and a gender activist, who facilitates Sampoorna, a network of trans Indians. Sampoorna can be reached at sampoornaindia@yahoo.com.

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