The govt wants to help transgender people, but can it identify them?
The central government wants to provide sex reassignment surgery for transgender people. It wants to protect their right to live at home with their families. It wants to outlaw each of the particular forms of discrimination, abuse, and coercion that they face.
But there’s a catch: the whole system, if passed into law, would apply only to people who have a new transgender ID card. And the government, which is deciding how to distribute the IDs, might not understand what being transgender means.
A debate about the most basic elements of gender identity is not getting settled even as the Transgender Persons (Protection of Rights) Bill moves closer to passage. The most recent stage of its progress, a parliamentary report issued on July 22, revealed a state of confusion. The report alternates between advancing a psychological and a biological definition of being transgender.
It exposes equally unresolved arguments about other essential aspects of the lives of transgender people: how they experience sex, what they do to earn money, where they live. In each case, representatives of the transgender community and the government are on opposing sides.
According to the chairman of the committee that produced the report, BJP MP Ramesh Bais, the proposed law is a first step toward changing popular attitudes about transgender people. “We are talking here about giving transgender people legal recognition,” he said. “They remain isolated, so to merge them with the mainstream, we got this bill.”
“It’s a poisonous bill,” countered Grace Banu, a transgender woman who deposed in front of the committee. “We all hate that bill.”
Men of influence
Bais, 70, has been a Raipur councillor, MLA, or MP almost continuously since 1978. He said his family, farmers for many generations, owns 700 acres of land. Before Bais began work on the report, he hadn’t had much experience with transgender people. “I never realised that this was such a big issue,” he said.
His committee, which was composed of eight members of the ruling NDA and ten members of other parties, needed expertise. The most influential advisor may have been Dr. Piyush Saxena, who is the founder of an organisation called Salvation of Oppressed Eunuchs.
Saxena has written a book and produced a movie about transgender life in India. He said he is advising a dozen Ph.D students studying the transgender community. Professionally, Saxena is a senior vice president of Reliance Industries. His website also describes him as a naturopath, “past life regression therapist”, poet, painter, and magician.
Saxena said he has had sway with policymaking about transgender issues for years: “Whatever I have suggested, it has been accepted in toto.” In an interview, Bais attributed some of his claims about transgender life to Saxena personally.
Bodies or minds?
Yet many beliefs of this independent researcher run counter to those of transgender people and specialists in the field.
Authorities have widely agreed, for example, that being transgender is a natural part of human psychology. According to the World Professional Association for Transgender Health, the feeling that one’s gender is different from one’s assigned sex at birth “is a common and culturally-diverse human phenomenon”.
In a 2014 ruling, National Legal Services Authority (NALSA) v. Union of India, the Supreme Court of India adopted this psychological understanding. It defined transgender people as those “whose gender identity, gender expression or behavior does not conform to their biological sex.”
Bittu Karthik, an associate professor of biology and psychology at Ashoka University who organised committee depositions from fellow transgender people, described being transgender as a characteristic that is “innately self-identified. It is not something that another person can decide.”
Vidya Rajput, a transgender woman who is a member of the Third Gender Welfare Board of Chhattisgarh, agreed. “This is a matter of emotion, it is a psychological matter,” she said. “How will you measure it?”
Saxena, on the other hand, believes in measuring. He posited a variety of essential biological traits that distinguish transgender people. “Sometimes, they’re sexually very hot,” said Saxena of transgender women, even though “they never have an erection. Erection is one thing they never have. This is the fundamental difference between a gay and a transgender. They don’t have erections, they have a masculine body, and they want penetration to be done by their male boyfriend.”
For people born with female bodies who later identify as men, Saxena also had a biological explanation: that they have an “enlarged clitoris”.
Bais seemed convinced of this line of thinking, and shared his own biological theory. He said that transgender people have an abnormal composition of hormones, so that, for example, male-bodied people who later identify as women start growing breasts around the age of 10.
The meaning of a definition
These conflicting positions will determine who the legislation benefits and who it excludes.
As it stands, the bill defines a transgender person as someone who is “neither wholly female nor wholly male” or “neither female nor male” or “a combination of female and male”.
To be considered for an ID card, the bill proposes that applicants must go through a screening process. The people in charge will include a “medical officer” and a “psychologist or psychiatrist”.
The apparent reference in the definition to genitalia and the presence of doctors in the screening committees both contradict the psychological view of gender. They imply that a hijra born as a man who has not had sex-reassignment surgery, for instance, cannot be considered transgender.
The report criticises these measures on scientific and legal grounds. It says that the definition’s reliance on physical characteristics “conflates intersex and transgender persons” and “violates the fundamental rights to equality, dignity, autonomy but also freedom of transgender persons guaranteed under Articles 14, 19, and 21 of the Constitution”.
Tests of medical eligibility, meanwhile, “risk pathologising trans identities, and violate the right of transgender persons’ under the Supreme Court judgement and international human rights law and standards - to have their self-identified gender recognized,” says the report.
These statements indicate the influence of the transgender people who deposed before the drafting committee. In some ways, said Karthik, “the committee responded really well to being talked to about this subject.”
Yet the report ultimately defends the bill’s provisions. It accedes to the government’s argument that using psychological criteria and omitting doctors from screening committees would each create a threat of “misuse” of the IDs.
The report does not explain the meaning of “misuse” or its supposed likelihood. Neither the bill nor the report specifies what exactly the “medical officer” is supposed to do. Given that the screening committees are meant to have a separate “psychologist or psychiatrist”, it is hard to see the purpose of medical officers unless they are employing physical tests.
In effect, the report advocates using a definition of “transgender” that it describes as violating “fundamental rights”.
The science of transgender identity is also implicated in the new punitive system the bill would establish. Crimes against transgender people ranging in severity from verbal to sexual abuse would all be punished the same way — with imprisonment for not less than six months and not more than two years. Current rape laws for women are much harsher, recommending a prison term of seven years to life.
The report recommends greater proportionality in these punishments. But asked if the rape of a woman should be punished differently from the rape of a transgender person, Saxena again pointed to biological differences. “Vagina rape causes a different sort of mental trauma to the lady,” he said. Asked for evidence, Saxena referred to his personal experiences as a researcher. “I know that the conditions are different,” he said.
Told about Saxena’s and Bais’s claims regarding the science of gender, transgender people responded with laughs, groans, and exclamations.
Karthik said that there is no evidence of a link between hormones or clitoral size and transgender identity; that some transgender women do have erections; and that not all of them necessarily want to have surgery. He and another interviewee were both left speechless by Saxena’s contention about gender and rape.
Searching for security
The contradictory influences of Saxena and representatives from the transgender community are clearest in the report’s account of the families of transgender children and jamaats, the communes that many South Asian transgender women have traditionally lived in.
In one section, the report criticises the bill for assuming that biological families are a “protection unit for transgender persons”. “The truth,” it says, is that “the family that is the seat of violence, abuse and a denial of identity for young trans-person.”
Conversely, this section describes jamaats as “places of refuge” and “Hijra elders” as “adoptive parents”. The section concludes that “it is imperative that alternative family structures are recognized”.
In a later section, however, the report adopts the term “beggary syndicate” from the Centre and agrees that a “bonded labour system must be discouraged”.
Interviews with Bais and Saxena confirmed that people involved with the report associate these terms with jamaats. Bais said that jamaats demand their young members pay hefty fees, compelling them to perform “galat kaam” (wrong deeds). Bais said he got this information from a CD sent to him by Saxena.
Saxena characterised jamaats in yet harsher terms. In his view, jamaat gurus abuse their charges; many young transgender people in jamaats are forced into begging and sex work; and residence in the communes is tantamount to a form of slavery.
Grace Banu is the guru of a jamaat in Tamil Nadu. She disputed these points. She said that she was not aware of forced begging, that jamaats in Tamil Nadu were involved in helping transgender people get schooling and employment, and that jamaats “created family”.
According to Karthik, living in a jamaat often involves being part of an informal legal system. This system may, in some situations, “impose punishments that are unfair and violating of human rights”.
But Karthik also said that jamaats provide many transgender people with a significantly better life than otherwise possible. The begging jamaat members do, for example, tends to be well organised and safe, he said, especially when compared to the begging done outside the jamaat system.
However jamaats should or should not be regulated, Karthik argued that a prohibition against begging is not the right course of action. Begging is not caused by the existence of jamaats, he suggested; it’s the result of a lack of other employment opportunities. “The fundamental issue that we should solve is an entry issue,” said Karthik. “It is an issue of getting the job.”
In the 2014 NALSA ruling, the Supreme Court directed the government to give transgender people reservations in education and public employment. The next year, a bill passed the Rajya Sabha that reserved for the transgender community 2% of public-sector jobs and 2% of seats in public schools. It also directed the government to provide incentives to employers to hire transgender people. The aim was to make them 2% of the workforce within five years.
The Transgender Persons Bill, however, makes no mention of reservations. The report points out the bill’s silence in this matter, but does make any recommendation itself.
Bais said that he would recommend that transgender people get reservations along the lines of the Rajya Sabha bill, but added that this was for the government to decide.
In interviews with transgender people, no issue was discussed more passionately. “If there is reservation, the community will merge with the mainstream,” said Rajput. Karthik went further: “The only thing that would help is reservations.”
A question of power
If anything is clear from the many voices speaking through the Lok Sabha report, it is that Parliament stands ready to be influenced. “If transgender people feel that certain improvements need to be made in the bill once it is passed, that can be incorporated by taking the amendment route,” said Bais. “The bill is meant for their betterment, not to upset them.”
More readings and votes in both the lower and upper house still await the Transgender Persons Bill. The government is listening — the question is, who is it listening to?
(With inputs from Samarth Bansal)