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Looking Ahead: What after NALSA?

A black-and-white sketch of a pair of scales, signifying the law

By: Diksha Sanyal at the JILS Blog

The National Legal Services Authority v. Union of India [Writ Petition (Civil) No. 400 of 2012] has the potential to play a transformative role in altering the discourse on the State, citizenship and the transgender community. By recognizing the third gender and most importantly, an individual’s choice to decide one’s own gender, the Supreme Court has recognized in theory, what has been denied in practice: the equal rights of the transgender community as citizens of India. Their rights are now grounded in the Constitution in the form of Article 14, 15, 19 and 21.

However, the judgment only represents a starting point and a lot of how this discourse is shaped will depend upon the legal framework set up and executed by the State. Mere recognition as a legal entity is not a guarantee for material benefits, equality and justice in the truest sense of the word.  There continue to be formidable challenges ahead, which is why, many have received this judgment with some degree of trepidation.

In this article, the author intends to explore the silences of the judgment and the recommendations of the report submitted by the Ministry of Social Justice and Empowerment (which the Supreme Court has relied on), to determine the possible impediments to the realisation of the rights of the transgender community with regard to the issue of their identification and recognition.

One of the consequences that flow from bringing a marginalised group into the fold of citizenship is that they become eligible for social schemes sponsored by the State. This is where recognition and identification become pertinent issues.

The Supreme Court, while declaring the rights of the transgender community, has remained silent on how this process of interaction between the State and the transgender community is to be materialised. With regard to the transitioning between the male/female binary, the institutional processes and mechanisms have not been charted out. Relying on the report of the Ministry of Social Justice and Empowerment, the Court ruled that its own recommendations are to be read in conjunction with that of the Ministry’s report and that is how this landmark judgment is to be implemented.

The judgment stated explicitly that India would follow a system where not only the third gender would be recognized but also, individuals would be allowed to choose within any of the three genders, that is, male, female or transgender. However, such a model poses its own set of problems, mostly at the implementation level.  For instance, how will a community of individuals scattered across the male, female and transgender groups avail of benefits provided by the State to only one category of individuals, namely transgender. This raises the question whether this will dilute the benefits of allowing people to characterize themselves as male, female or transgender given that benefits will accrue to only the third category.  Further, the Supreme Court also directs that the transgender community should be regarded as a ‘socially and economically backward class’ and would be entitled for reservation. However, this could be an administrative nightmare given that the transgender community will have intersecting caste lines.

Administrative difficulties aside, there is larger issue of identification. The UNDP report prepared by Arvind Narrain and Venkatesan Chakrapani sheds some light in this regard. There seem to be three basic models of implementation. One is the certification model wherein, an individual wishing to alter his/her gender submits the necessary documents and a gender certification panel set up by the government, will designate the same. This system is in operation in United Kingdom and even closer home, in Tamil Nadu in the form of Aravanis Welfare Board. However, what procedures will be followed by this certifying authority is unspecified. In the absence of any proper guidelines, it remains to be seen what procedures are actually adopted. This is also the method that has been adopted by the Ministry of Social Justice and Empowerment in their report. The criterion or test for qualifying a person as a transgender will depend on a fact to fact basis and the fact that the person is a part of a particular transgender group will act only as a corroborative evidence.  Secondly, the report does away with the simpler model of providing an affidavit of declaring one’s gender and adopts a more bureaucratic procedure. Instead, it adopts the model where a certificate that a person is a transgender   would be issued by a state level authority duly designated by the state on the recommendation of a district level screening committee headed by the District Magistrate/ Collector and comprising of District Social Welfare Officer, psychologist, psychiatrist, a social worker and two representatives of transgender community and such other person or official as the State Govt/UT Administration deems appropriate.

Such a mechanism raises several doubts since might not be in full conformity with the self- identification model mandated by the Supreme Court.  It is entirely possible that the State will interpret such procedures differently and no two states may follow the same procedure. Secondly, such a procedure may lead to gender policing and might end up complicating the entire process making it cumbersome and even corrupt and arbitrary. This implicit trust in the benevolence of the State which has had a history of being a perpetrator of violence and has for the most part, systematically denied the rights of the transgender community seems to be problematic. Even though, it is understandable to require some kind of authorization to change one’s gender identity, it should be ensured that the process is as hassle free and un-bureaucratic as possible. Further, it is important mechanisms for proper checks and balances to ensure that the process remains as free and fair as possible.

The other two models that have been specified in the report are the medical model and the self-identification model. The former is one where the transgender person usually gets a certification from the doctor diagnosing him/her with gender dysphoria or clearing the person for any Sex Reassignment Surgery (SRS) before the person can identify as transgender. Based on the WPATH (World Professional Association for Transgender Health), this is a standardised procedure often requiring the consent of the person undergoing the SRS. However, nonetheless, it has the tendency of pathologising bodies and treating gender fluidity as a medical concern rather than a social one. Further, this model generally is suitable for MtF or FtM transitions and is not suited for other transgenders who do not identify themselves within this gender binary.

The latter, that is the self-identification model places emphasis on however, the right to self -determination of one’s own gender and does not require a medical interventionist procedure or certification to identify as a transgender. As mentioned earlier, this method is followed in Argentina, under its progressive Gender Identity Law, 2012. Currently such a law, only operates for changing one’s gender to the opposite one and does not apply to those who do not identify themselves within the gender binary. This is one limitation of the Argentinian Law. However, in the near future hopefully the privilege of self-identification can be extended to other communities as well.

The Supreme Court does hint at the self- identification model. However, the mechanisms advocated in the report of the Ministry seem to be different. One hopes however, that the government while implementing the mechanisms for recognition of transgender rights will use the Supreme Court judgment to inform its processes rather than apply the procedure laid out by the Ministry in a mechanical manner. The certifying authority model is not inherently flawed, but a lot will depend on how it is carried forward and what processes are adopted for identification.

While the transgender rights movement has come a long way from their virtual invisibilisation in public life to the beginning of a healthy public debate on the same today, there is still a long way to go.

(Diksha Sanyal is a student of NUJS, Kolkata)

This article was originally published in the Journal of Indian Law and Society here.

Cover Image: Creative Commons