The Trans Act Is A Reflection Of Our Broken Democracy

Less than two weeks ago, the Union Ministry of Social Justice and Empowerment announced the National Council for Transgender Persons (hereafter: National Council) as fulfilment of its mandate in the Transgender (Protection of Rights) Act, 2019 (hereafter: Trans Act). Almost in time for the anniversary of Navtej Johar & Ors. Vs Union of India, 2018, the Supreme Court Judgment that decriminalised consensual sodomy; and in the sixth year after NALSA vs Union of India, that recognised the “third gender”(sic); it might seem the queer utopia we all wanted is just around the corner. This piece argues for caution in making such a claim

Many activists have already spoken out about the lack of representation in the National Council. It bears no harm to repeat that the very Trans Act under which this Council has been set up is currently under challenge in the Supreme Court by trans activists from across the country for its violation of many principles of the NALSA judgment. While the problems with the Trans Act are too many to elaborate, in this piece I attempt to elaborate how trans politics and their demands challenge the logic of representative democracy that holds such Councils as signs of development and progress itself.

One way of being a citizen is through our participation in representative democracy – whether it is in voting, participating in civil society or holding our representatives to account. The logic of votes is the game of numbers and that of representation is a promise of visibility. In fact representation, in this logic, gives hitherto “silenced” minorities not just voice but also repairs the hurt of living in an unequal society. It is often argued that to see more of one’s own community represented addresses and makes responsible the very structures that denied their existence before. It heals wounds, like a doctor does. But a doctor doesn’t just cure, he also disciplines. 

Representation is to be slowly roasted on the same fire whose burns it seeks to heal. Built on a political version of the trickle down theory, it claims that in time, the representatives in raising their voice on our behalf, slowly alleviate our minoritisation. The promise of democracy is deferred to a future of inexact or no time, while we as good citizens are to wait. It diffuses the rage that is animated out of daily injustice and delegitimises the immediacy that any call to justice might seek. It shushes the aggrieved to wait, like an adult does an agitated child, till their representatives do the needful. Representation may seem to lessen the erasure of minority speech but it merely creates more ambient noise with its visibility. The scream becomes the din of an annoying, ill-fated mosquito.

Even this is suspect only to the generosity of elected bodies. The fear of loss of numbers keeps the violence of electoral representation in check. If you can be counted, your voice will be accounted for. The count is a scary thing for many trans folx. What do you count when you account for trans folx? What experience? What bodies? Who is left behind and who gets to represent us? Often our personhood is disaggregated by what Katherine McKrittrick calls in the context of the slave ledger, “the mathematics of the unliving.” McKrittick eludes to the difficulty of writing into existence black beings from the originary violence of the ledger and the log book, where the slave’s status was commodity. Can someone be recovered from the “data that honour and repeat and cherish anti-black violence and black death”? Transness is often made into an arithmetic – the percentage of hormones, the date of surgery, the years of knowing you were a boy or a girl – that can add up into a gender or may be not. This calculation is done by a team of experts who certify us into existence – doctors, psychiatrists and law makers. This is the very arithmetic that the Trans Act has sought to reduce trans folx to.

The Trans Act stipulates that to identify as a man or a woman, the trans person will have to subject themselves to a Chief Medical Officer/ District Magistrate who would certify to the correctness of their gender. NALSA vs Union of India gave the right to self-determine one’s gender to everyone, without the need to subject oneself to such scrutiny. By populating the Trans Act with such sections, what is betrayed is the fear of persons speaking for themselves, a fear of direct democracy which is at the heart of representative democracy. Self-determination made impossible by such provisions in the Trans Act wants to regulate the speech of the very persons who it seeks to represent. Trans persons, the Trans Act seems to say, are best represented by experts, not by themselves.

The violence of the count emerges again in the Trans Act when it arbitrarily assigns a much shorter sentence for assault of trans persons than what is currently for cis-women under our laws. In stipulating that those convicted for assaulting trans persons would be punished up to two years in prison while the sentence for assaulting women is, scarily, up to death penalty; the Trans Act suggests that injury to trans persons is less serious, no matter what its nature, because they are seemingly a lesser gender. i am not making a case for death penalty for those who assault trans persons, but committed as i am to the practice of abolition i am arguing that the very logic of counting that keeps this prison industrial complex and these hierarchies of gender must go. Moreover, in order to lodge a complaint, would the trans persons have to prove that they are trans? Would self-determined gender work in the police station or will one need a certificate? To what scrutiny would a trans person subject themselves there? What wounds will need to be displayed? Given that police stations are hostile to trans persons, what would this actually entail?

It is precisely this call to show, to make ourselves visible that haunts trans persons. A pharma-pornographic imaginary regulates transness by constantly asking it to make itself visible  - from the ‘before and after’ story that media houses love to carry to the doctor-magistrate-police that constantly ask trans folx to undress. Trans persons are pinned under the gaze of this imaginary that constantly scrutinises and derives great pleasure from policing bodies, voice, gestures, hair, genitalia, clothes, hormones and anything to fit the geometry of gender as they desire it. It is no wonder that our visibility is what kills us.

The right to self-determination, of gender or otherwise, is the refusal to live for the enjoyment of others. It is a practice of freedom that defies the logic of the count. When trans persons speak for themselves they usher in by just naming their gender, another imagination of democracy – one where we wouldn’t be reduced to a count for us to be cared for by the state. Speech will not travel like Chinese whispers from the grassroots to the Parliament but hold its own, demand its justice, cry its cry. 

The reason why the Trans Act is challenged in the Supreme Court as a violation of NALSA vs Union of India is because trans folx cherish the idea of deliberative democracy that values equality not the sameness of numbers. It shouldn’t come as a surprise the National Council set up under this Act is full of Savarna trans folx since the logic of visibility is one in which the most privileged come to be seen first. In fact, the drafters of the Trans Act and our esteemed parliamentarians who passed it skipped over the part of the NALSA vs Union of India judgment where it unequivocally asked for reservations for trans persons. Reservation does what representation obstructs. 

Let me explain. In the Madras High Court, to a petition by Grace Banu, a Dalit trans activist and founder of Trans Rights Now, demanding horizontal reservation to trans persons across all categories, the Judges exclaimed that without certification anyone would become trans and seek reservations. But that’s precisely the point. The Judges sought to contain the possibilities of being trans and of reservations by subjecting it to the logic of representation, by making us into a little manageable minority. Reservations are a non-normative imagination of democracy that refuses to wait for the minoritised to be seen by their oppressor and instead offers freedom unconstrained by the gaze of others – to wield power differently, to imagine a transformed collective life. 

Democracy is opposed to structures of power like caste, gender and ability. Its potential is constantly frustrated by their logics which is the myth of merit, the promise of representation, the arithmetic of our capacity. The Trans Act and everything that it mandates emerges from such logics. The protests against the Act affirm the inseparability of freedom from equality, justice from self-determination, and democracy from the annihilation of caste, gender, ability. It refuses every other everyone who tells us it is not our time now, that asks that we wait, that denies that democracy doesn’t begin with us. 

Vikramaditya Sahai is an associate at the Centre for Law and Policy Research, Bengaluru.