Home / Opinion / Views /  Examining the right to self-perceived gender identity

The debate around transgender rights in India is intensifying. The Transgender Persons (Protection of Rights) Act, 2019 (‘the Act’) wasn't free of blemishes and warps. But now the government has framed the Transgender Persons (Protection of Rights) Rules, 2020 (‘draft rules’) under Section 22 of the Act. The combination of the Act and the draft rules is like a loaded gun, with the potential to shoot down the dreams and aspirations of the transgender community to live a life as ‘full’ citizens with dignity.

The Act has granted the right to ‘self-perceived gender identity’ to transgender individuals. Although such a step is praiseworthy, the Act and the ensuing draft rules present as well as reinforce a ‘biological/medical model’ of transgender identity. The law has neglected the lived experiences of transgender individuals and has instead, adopted ‘binarism’—‘male’ and ‘female’ bodies as the normative standard for the human body. In case an individual’s present choice of gender does not match with one’s gender assigned at birth, such an individual may correct the mismatch by changing one’s gender surgically. For gender transition, the Guidelines from the World Professional Association (WPA) for Transgender Health state that medical interventions should follow “extensive exploration of psychological, family and social issues".

Contrarily, the law requires an extremely complex combination of medical interventions—surgery, therapy and counselling—and legal paperwork—affidavits and certificates—for gender transition. What good is an individual’s right to ‘self-perceived gender identity’ if doctors and judges play the determining role to define an individual’s gender identity? After all, ‘transgenderism’ is not a question of an individual’s anatomy but more a question of introspection—what and how one feels on the inside.

However, with an over emphasis on the biological makeup of an individual and the surgical correction of any mismatch, the law has completely done away with individual choice. To that effect, a lesson can be learnt from countries like Argentina and Mexico which, in a pathbreaking moves, have permitted adults to change their gender identity without seeking prior medical or legal approval.

Correction of one’s gender identity through surgery and/or legal certificates is neither going to eliminate the stigma attached to the transgender identity nor culminate into their acceptance by the society. In all probability, even after getting an identity card with a new gender, one would be subject to a volley of sexual slurs like ‘she is not feminine enough’ or ‘he is not masculine enough’. This is because a transgender individual has to dress and behave correctly—compelled to comply with society’s norms of ‘gender performance’.

The Queer Theorists have challenged law’s ‘binarism’ i.e. male-female normative standard as well as the gender roles prescribed by the society and further reinforced by law. The alternative approach to the biological/medical model is ‘fluidity’ which gives primacy to individual choice, the freedom to explore options in dress as well as demeanour and subvert the strict rules of gender performance. On the one hand, where the Act and the rules have granted transgender individuals a right to self-perceived gender identity, on the other hand, they have not laid down the extent and scope of the right. Can an individual choose to go on a gender alteration spree? For example, Billy Porter, a non-conformist celebrity who is now a leading transgender rights advocate, stunned the world when he appeared in heels and a cape at the 2019 Golden Globes red carpet event. He has shattered the glass ceiling with every appearance since then, using clothes—“fabulous, loud, fluid and larger than life"—to question the prevailing narrative around normative gender identity and fashion.

Unfortunately, since eternity, our society, institutions and processes have been ordered on the basis of the ‘gender identity’ of citizens. Rather, even the Constitution of India, 1950 defines a ‘citizen’ as a person who has ‘his’ or ‘her’ domicile in the territory of India. However, what is the justification for excluding transgender individuals from accessing social rights and benefits earmarked for the ‘male’ and ‘female’ citizens of the country? In light of the above concern, a few countries have decided not to take into account ‘gender identity’ at all, as an important characteristic to organise society, the legal system and the laws. For example, as recently as July 2020, the Government of Netherlands wholly removed gender markers from national identification documents.

Despite such novel breakthroughs in the world, the law in India has failed to protect the members of the transgender community from experiencing both overt as well as covert forms of discrimination. The law is extremely narrow and exclusionary because it enumerates just nine instances of discrimination and fails to recognize everyday ordeals that transgender individuals experience like police atrocities, custodial violence and rape. Further, the law fails to protect transgender individuals from subtle insults such as uncomfortable glances, unwelcome gestures and particularly, bullying of transgender children. The maximum punishment for committing sexual assault against a transgender individual is two years and a fine. The question is: how would the law alleviate transgender life and conditions if it has modelled ‘transgenderism’ not on everyday individual experiences but along the lines of a medical condition requiring treatment?

The legislators ought to have a thorough relook at the Act and the draft rules from the perspective of the queer theorists and the transgender individuals and not from an entirely clinical viewpoint. The goal for ‘transgender identity’ is to transcend from being a ‘malign’ variation i.e. undesirable to being a ‘benign’ variation i.e. acceptable among the human species. Although quite a few transgender individuals in India have fought all odds to make a mark in various fields, there is still a long way to go.

The authors are, respectively, a human rights lawyer and an independent researcher based in Kolkata.

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