Not just his and hers

This opinion piece by Danish Sheikh first appeared in The Indian Express on April 25, 2014.

Speaking of the persecution of transgender individuals in India, the Supreme Court observes that the “moral failure lies in society’s unwillingness to contain or embrace different gender identities and expressions”. With this opening acknowledgment, the court proceeds to craft a charter of transgender rights in its recent judgment in National Legal Services Authority (Nalsa) vs Union of India. I’ll elaborate on one strand of the decision in particular — the legal recognition of transgender identity. At the outset, the judges clarify that they are talking of two kinds of identity claims: one, where transgenders may be treated as a third gender, and two, where they may decide their gender within the male/ female binary, regardless of their biological sex.

There are two major ways in which non-recognition happens. First, when a transgender individual is refused recognition in the gender of their choice. This is largely a question of burdensome procedure: how many medical, psychiatric and administrative hoops should a person have to jump through in order to be accurately recognised as a legal citizen? The court goes through a lengthy recounting of comparative law relating to the recognition of transgender identity, starting from the infamous Corbett vs Corbett, with its complete emphasis on biological sex, to the New Zealand case law standard requiring surgical and medical procedures to effect a transformation. The court rejects the idea that gender should be based on biology, holding that the test to be applied is a psychological one.

The second recognition issue appears wherever the notion of third gender is absent in the law, which it is at just about every level that matters. The law places third gendered communities in a unique double bind. Criminal law is largely gender neutral, mostly using the word “persons” to indicate perpetrators of crimes. Personal laws, on the other hand, are chiefly gendered, so that various state benefits or legal statuses such as marriage, adoption, guardianship and succession will take the male-female binary into account. The third gender is thus hyper visible when it comes to criminal law, yet completely invisible when it comes to the benefits accruing from family law.

With Nalsa, the Supreme Court has maintained that these cumulative silences on the law’s part are unconstitutional. In articulating this as an equality claim, the court first put forward an Aristotelian logic: the “treatment of equals as unequals or unequals as equals will be violative of the basic structure of the Constitution”. But then it goes on to firmly reinforce that the equal protection guarantee under Article 14 of the Constitution involves a “positive obligation on the state… by bringing in necessary social and economic changes, so that everyone including transgenders may enjoy equal protection of laws”. While the court stops short of declaring that the inequality of non-recognition is by itself a harm, what it does do is provide all the instances in which non-recognition leaves transgender persons vulnerable. These include harassment and violence in both public spaces and the home, as well as institutional discrimination, whether at the workplace or in the educational sphere.
These proclamations largely adhere to non-recognition in the second sense. What of the first, that is, where individuals want to transition from one gender to another?

The court’s sharpest move here lies in an implicit recognition of its institutional limitations to craft actual policy decisions for the transgender community. Thus, instead of trying to mandate its own recommendations for operationalising legal recognition, the court defers to an executive body. In 2013, the ministry of social justice and empowerment constituted an expert committee to provide an in-depth study of the problems faced by the transgender community and suggest governmental measures. The committee report provides a voluminous set of recommendations for addressing transgender discrimination at various levels. The court holds that the recommendations in the report are to be examined in light of the legal declarations it has made and implemented within six months.

Again, this is a master stroke, because the report, for the most part, excels in crafting a nuanced set of recommendations. When it comes to legal recognition, it takes a position that grants the maximum autonomy to transgender individuals: so a person has the option to identify as “man”, “woman” or “transgender”, a choice which can be made independent of surgery or taking hormones. This combines the best components of different jurisdictions: Argentina allows for self-identification without medical intervention but not a third gender; Pakistan and Nepal recognise a third gender but don’t have clear procedures for gender transition. The report is also sensitive to the pernicious practice of limited recognition of transgenders as “others”: this, it says, cannot be allowed. Finally, it ensures that the gender certification bodies that are to be set up by different states include members of the transgender community. With the judgment as a guiding tool filled in by the substance of the report, we finally have a meaningful right to transgender recognition under law.