Indias Transgender Community Must Gear Up For A Long Fight

The Transgender Persons (Protection of Rights) Act (TPA) was notified by the Government Gazette on 12 January 2020, two days after the Citizenship Amendment Act (CAA ) was notified. The rules for both Acts have not yet been released yet, and might affect the ways in which these legislations play out. In both cases, the passage and notification of the bills despite widespread protest from the affected communities is an act of supreme arrogance, a display of majoritarian might. Both acts affect the transgender community and make our already precarious lives even more difficult. 

The TPA effectively sets up transgender persons as a category of people upon whom various kinds of discrimination are directly institutionalized by the state. If a transgender person’s family is “unable to take care” of them, such a person, even as an adult, may be placed in a “rehabilitation centre” by a court order. This clearly sets transgender persons as a category of people who may be institutionalised and held in custody by the state if not in the custody of family, in violation in our fundamental rights under Article 19 of the Constitution. While this section should not be able to withstand a constitutional challenge in court, it illustrates the sanctity that the Act accords the family and the state, two of the main perpetrators of violence against the transgender community. Another discriminatory aspect of the bill pertains to punishments for violence against transgender persons, who face elevated rates of sexual and physical assault compared with most other gendered categories. With this bill, transgender persons become a legal category of persons upon whom sexual or physical assault would get punished with vastly lower sentences (from six months to two years) than equivalent sexual assaults upon women (seven years to life) or physical assaults upon people (three months to life).

This must be read in conjunction with the fact that under the Act, transgender persons are required to register themselves as “transgender” before the government, regardless of whether they identify as such or whether they want to be publicly known as such. This gendered registration will then extend to all official documents. This gendered registration cannot be altered to any other gender identity without proof of surgery. The government fails to specify what this mysterious surgery is that magically enables the government to recognize one’s inherent sense of identity, and of course the Act does not provide for free provision of free surgical or medical care by the government. This is a blow to the right to self-identify gender, irrespective of hormonal or surgical interventions, that was enshrined in the Supreme Court ’s NALSA vs Union of India judgment. 

The implication of these provisions read together with the absence of any affirmative action, or civil rights, or anti-discrimination penalties in the Act means that registering oneself as transgender with the government would essentially serve to largely disadvantage transgender persons. Presumably, the government will put out a few crumbs to attract registrants, of the kind not sufficient to sustain transgender persons or provide substantive options for those who do not want to beg or do sex work. In such situations of economic penury, several transgender persons would readily sign up for any such scheme. 

While the transgender community’s alarm over the TPA has been written about and placed before the public multiple times, there is much less public discourse on just how much the CAA and NRC (National Register of Citizens ) and NPR (National Population Registry) will further devastate the transgender community. While the TPA sets out to institutionalize trans persons, the CAA-NRC-NPR combine targets Muslims, but will end up being a wider net that institutionalizes all marginalized persons who do not have access to legacy documents, including transgender persons.  

The CAA ostensibly discriminates among migrants based on their religion and country of origin, providing benefits solely to those whose combination of these traits suits the agenda of creating a Hindu rashtra. Trans and queer people are not recognized in any legislation as asylum seekers, nor are asylum seekers facing other forms of discrimination that are not rooted in their assigned religious identities. If these trans and queer asylum seekers were Muslim, they would face an Islamophobic filter in applying for asylum in addition to the transphobia and queerphobia that all queer and trans people encounter in immigration processes as well as in daily life.

The nation-wide NRC is, of course, the more worrying process since it threatens to strip people of citizenship, based on whether they can furnish documents documenting it. Very few transgender persons can furnish documentation demonstrating family legacy. Several transgender and queer persons have been cut off by their birth families, or have had to run away from home to escape transphobia. This means that they will not be able to furnish birth certificates or legacy documents showing their families’ histories of residing in this country. 

After the NALSA vs. UOI Supreme Court judgment, transgender persons have been able to change their name and gender on several forms of ID. However, the agencies that issue birth certificates and education certificates have remained stubbornly in contempt of the NALSA judgment, refusing to implement these changes on those forms of documentation. Unfortunately, almost all jobs mandate either the birth certificate or the Class X certificate as proof of identity in addition to other forms of ID, and these agencies that have defied the NALSA judgment also render most transgender persons unemployable. Most automated job selection processes auto-reject applications that have inconsistent names across furnished documents, dismissing them as fraudulent. If one does get a rare opportunity to explain these inconsistencies to a possible employer, one is forced to declare oneself as transgender, leaving open the possibility of a rejection based on discrimination. 

Likewise, the insistent requirement of the NRC process on mandating a show of legacy documents means that many transgender persons who do have access to their birth certificates will have a name and gender on the certificate that is inconsistent with ID documents. Even transgender persons who have not legally transitioned and have mutually consistent documents may look very different from the gender assigned at birth. For all these reasons, this leaves the inclusion of trans persons in the NRC dependent on the trans sensitivity and awareness of the local responsible official. An estimated 2,000 transgender persons have already been left out of the NRC in Assam, suggesting that transphobia has played out as expected, leaving transgender persons vulnerable under the NRC. Swati Bidhan Baruah, a transgender judge and activist, has challenged this exclusion in court. 

Meanwhile, the NPR FAQ page run by the Office of Registrar General & Census Commissioner of the Ministry of Home Affairs states in so many words that the NPR is the first step towards preparing a National Register of Indian Citizens (NRIC). This NRIC seems indistinguishable from the NRC, and its formation is stipulated in the 2003 rules governing the data gathering exercise of the NPR. The rules provide for NPR data being used to substitute for the initial data gathering required for the NRIC, with the transition from population membership to citizenship being made through a process of verification of citizenship status for each person, conducted by the Local Registrar of Citizen Registration. A hefty budget of Rs 3,491.35 crore for the NPR exercise was sanctioned on 24 December, 2019, over and above the budget allocated for the census. 

Unlike the census, the information gathered in the NPR will not be confidential, and in fact, would be published in order to publicly solicit any objections before being added to an NRIC, according to the Citizenship (Registration of Citizens and issue of National Identity Cards) Rules, 2003. This clause in Rule 4.6 (a) appears to enable anyone to cast a shadow of doubt over the citizenship of a person who has been counted in the data gathering exercise. This is quite problematic and can be used by anyone to settle a grudge against anyone else, and as is the case with most grudge settling that is arbitered by the state, is likely to play out in a way that disadvantages those who are already disadvantaged. This makes it a platform for transphobia, homophobia, Islamophobia, casteism, sexism, racism and ableism to acquire the power to possibly accuse someone of not being a citizen. Furthermore, people who are already marginalized by the state and society will have particular difficulty furnishing legacy documents: dalits, adivasis, women, the landless, those displaced by corporate and state takeover of their lands.

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Bearing in mind the fact that registration in the NPR is mandatory, it appears to be a route to administer the NRC through a seemingly innocuous data-gathering instrument whose use preceded the current discourse around the linked NRC-CAA programme and its religious communal implications. As with the trans bill, the decision on a person’s identity and any objections made is made by a local official, the Sub-district or Taluk Registrar of Citizen Registration, and the only option for appeal to approach the District Registrar, whose decision is final. The NPR rules also bind anyone approached by these officials to have to comply with their requests for information about the citizenship status of any person. This means that these two legislations act together to essentially provide two routes towards the institutionalization of trans persons—either through the TPA, or through the mandatory NPR-NRIC/NRC route. 

There is also a less obvious link between these two acts of law: they are linked by an underlying Brahminism and Islamophobia. The particular form of religious syncretism practised by the traditional transgender community forbids the drawing of religious boundaries between members of the community. Instead, everyone who joins the hijra community has to adopt a common, mixed religious practice. It is common for people joining the community to adopt chosen names that differ from names associated with the religions and castes they were assigned at birth, even as these names also often differ in their gendered connotation. The provision in the TPA that restricts the changing of the last name, during a legal transition of one’s official gendered markers, betrays the government’s anxiety over this kind of fluidity. It also essentially restricts the trans citizen’s right to change a name, if one is changing gender. The TPA is therefore largely written in a way that targets the sanctity of this syncretic community, and its traditions of living and labouring together in ways cutting across religion, caste and class. 

So while transgender people are not the primary target of the RSS, whose fascist agenda directly targets Muslims, we find ourselves in the crosshairs of both these pieces of legislation and their dangerous combined impact on the community. Together, the implications of being a transgender person on paper would be devastating. Legally transitioning will now put a transgender person in a very difficult position: any mismatch between documents could render one’s citizenship suspect. While the NRC process in Assam takes on many more complications and dimensions than the proposed and ahistorical notion of an all-India NRC, the outcome of trans exclusion from the NRC has demonstrated that these concerns are not just hypothetical. Under the TPA, transgender persons can no longer directly transition from assigned to chosen gendered categories under the radar; the registration as “transgender” with the state is information whose confidentiality is not guaranteed. Furthermore, a legal transition into the “transgender” category puts one in the position of suddenly being rendered a soft target for assault, because of the two-year ceiling on punishment for any kind of assault on transgender persons. Transgender persons, who attempt suicide at alarmingly high rates due to the punishing mismatch between an innate sense of one’s gendered body and one’s position in a gendered society, will now have punitive consequences of the life-saving gender transition process.

While these are all the ways in which transgender persons’ lives will be made harder by the TPA and the CAA-NRC-NPR, our objection to these bills is simply a matter of principle. As persons who have experienced discrimination and know it when we see it, we clearly see the CAA as encoding discrimination based on religion, the way the TPA encodes discrimination based on gender identity. We see the NRC-NPR exercise as one that structurally will exclude many marginalized communities, including but not limited to the transgender community. With multiple detention centres already set up, and the worrying enthusiasm that RSS founder Golwalker showed in lauding the efficiency with which the Hitler incarcerated and annihilated Jews in Germany, it is unclear whether we must in fact gear up for the kind of campaign that would actually prevent another Holocaust. In the Holocaust as well, while Jews were the main rhetorical target of the Nazis, queers were also targeted for annihilation. In India today, we see a heartening groundswell of resistance against the CAA and NRC, and a widespread awakening to the anti-Muslim agenda of the RSS-BJP. It is important that this resistance be joined in full earnest by the queer and trans community, and that the NPR and TPA be included in the broader cis-hetero discourse of resistance.