Non-binary Gender Identities and Access to Services in India

 

1. Introduction

The LGBTQ+ movement in India has gained considerable momentum over the last decade. The landmark Supreme Court judgment establishing a third gender and the (regrettably temporary) decriminalisation of homosexuality have led to greater visibility of the LGBTQ+ community in both political and social spheres. To date, much of the research on gender minorities in India, and much of the legal and policy focus, has focused mostly or exclusively on Hijras and other cultural gender identities. Few studies have focused on transgender men, non- binary people or other gender identities, and as such there is little data on the experiences of non-binary individuals and other gender minorities.

1. 1.1 Scope and Methodology

This report will investigate the experiences of non-binary individuals in India and how their gender identity affects access to justice, healthcare, education and employment, marriage, housing, public transport and rest-rooms.

A literature review was undertaken to investigate non-binary experiences of services in India, to analyse current national and state policies and to look globally for best practice examples of laws and policies that protect the rights of and cater for the specific needs of non-binary gender identities. Due to the paucity of data regarding non-binary experiences in India and other South Asian nations, in-depth interviews were also undertaken with gender non-binary individuals supported by Swasti Health Catalyst in Tamil Nadu. Other NGOs working with non-binary individuals were also contacted to share their experiences.

1. 1.2 Terminology

Gender non-binary: (or genderqueer) Gender identities that are not exclusively masculine or feminine, identities outside the gender binary and cisnormativity. Individuals may express a combination of masculinity and femininity or neither in their gender expression.

Genderqueer: Gender identities that lie outside the gender binary and cisnormativity. They may express a combination of masculinity and femininity, or neither, in their gender expression. They may identify as having an overlap of or indefinite gender identity; having two or more genders; having no gender; moving between genders or having a fluctuating gender identity; or being third gender or other-gendered. Similar in scope to non-binary, which is considered a more politically neutral term. Usually used in personal identifications.

Gender fluid: Individuals who prefer to remain flexible about their gender identity rather than committing to a single gender. They may fluctuate between genders or express multiple genders at the same time.

Transgender: Individuals who do not identify with the gender they were assigned at birth.

Transsexual: Individuals who identify with the opposite gender to that which they were assigned at birth. Some definitions of transsexual include the desire to assume characteristics of their chosen gender, for instance through medical interventions such as hormones or gender affirming surgery.

Hijra: Individuals assigned male gender at birth (or rarely intersex) who identify as female as third gender and combine kinship-based social organisation with cultural and religious practices. They may or may not have undergone castration, penectomy or other surgeries.

Kothi: Individuals assigned male gender at birth who display varying degrees of femininity. Often described as preferring to take the feminine role in same-sex relationships, although many are bisexual. The distinction between hijras and kothis is not clear cut as some hijras may identify as kothi. Not all kothis identify as hijra or even transgender.

Third gender: a category used to describe people who consider themselves neither men nor women. It can be used to refer to transgender people or intersex people.

 

2: Gender Identity in India: Hijras, the Third Gender and the emerging LGBTQ+ Movement

1. 1. Background on Transgender Rights in India

The first nation-wide count of the transgender population, through the 2011 census, suggests there are 4.9 lakh (490,000) transgender (or ‘third gender’) people living in India (Nagarajan, 2014). However, LGBTQ+ activists have expressed concerns that the 2011 census is inaccurate and regret that government agencies have not asked for help from community members in conducting a census of all third gender people in India. Moreover, the government has not made public the questions they asked to obtain this data, nor information on the sub-categories of transpersons. This has led to fears that agencies only counted visible transgender people such as hijras, leading to a vast underestimation, which some activists believing the number could be 6-7 times higher (Nagarajan, 2014).

 

A The 2014 NALSA Judgment

In the case of National Legal Services Authority v. Union of India, the Supreme Court made a landmark ruling that gave transgender people the right to self-identify their gender as male, female or ‘third-gender’. Furthermore they specified that transitions within the male/female binary should not require prior sex reassignment surgery (SRS) to have taken place. They framed their ruling on the rights of transgender individuals around several articles of the Indian Constitution (namely the right to equal protection of the law, the right to non-discrimination, the right to freedom of speech and expression, and the right to dignity). The Indian Constitution prohibits discrimination on several counts including “sex”, which was read by the court to include gender identity. In their decision the SCI held that transgender people should be treated as a “socially and economically backward class” and directed both Central and state governments to take a number of measures to fulfil the rights of transgender citizens including:

1. To establish affirmative action measures to increase the presence of transgender people in education and employment.
2. To create social welfare schemes for transgender people
3. To provide medical care for transgender people in hospitals and to provide them with separate toilets and other facilities.
4. To set up HIV sero-surveillance centres for the transgender community
5. To create public awareness to reduce stigma against transgender people and allow them to feel they are “part and parcel of the social life and not treated as untouchables” (National Legal Services Authority v. Union of India, 2014).

 

B The 2016 Transgender Bill of Rights

The NALSA ruling was celebrated widely and praised internationally for it’s comprehensive approach to Transgender rights, and was followed by the introduction of the 2014 ‘Rights of the Transgender Persons Bill’ which closely followed the ruling and was passed unanimously by the Rajya Sabha. While this bill was never debated Lok Sabha, it was reintroduced by the government in a modified form in 2016. Although this modified ‘Transgender Persons (Protection of Rights) bill still legislates the creation of a third gender it differs substantially from both the NALSA recommendations and the earlier bill.

The new bill lacks key proactive elements of its predecessor including the reservation of jobs for transgender people and the establishment of central and state transgender rights courts. While the bill still prohibits sexual abuse of transgender people it’s definition of sexual assault is vague in comparison to that found under in the Indian Penal Code, which divides sexual assault in to various sub-classifications such as molestation or rape. The bill also recommends a maximum sentence of only 2 years imprisonment for physical and sexual abuse of transgender people.

The bill was also widely criticised for its definition of transgender people as “neither wholly female nor wholly male, a combination of female and male; or neither female nor male”. This definition has several flaws. Firstly it can be seen as contravening the principle of self determination found in the NALSA judgment through its narrow definition of transgender which does not include the full spectrum of gender identities (for instance gender-fluid individuals or transgender people who identify as simply ‘male’ or ‘female’). Secondly, the definition conflates intersex and transgender people in its lack of clarity as to whether it refers to biological sex or gender, and was criticised for drawing on stigmatising gender-binary based caricatures and the confusing concept of a ‘whole’ female or male. The standing committee on social justice and empowerment recommended an alternative definition: “a person whose gender does not match with the gender assigned to that person at birth and includes trans-men and trans-women…gender-queers and a number of sociocultural identities such as kinnars, hijras, aravanis, jogtas, etc”. (Ministry of Social Justice and Empowerment, 2017).

Crucially, the bill has excluded the right to self-determination of gender identity found in both the NALSA ruling and the previous iteration of the bill, and would now require transgender individuals to submit themselves to a medical examination by a District Screening Committee comprising of a Chief Medical Officer, a psychiatrist or psychologist, a District Social Welfare Officer, a member of the transgender community and a Government official. This has been criticised as violating the human rights of transgender people to a right to live with dignity, privacy and with protection from medical abuses.

A further problematic element of the 2016 bill is the emphasis on criminalising begging by transgender people alongside anyone who ‘entices’ them to beg. As will be discussed later, anti-begging laws are already used to discriminate against transgender people who often turn to begging. A NACO and UNDP study found that 28% of transgender individuals reported begging as their occupation, while the majority (62%) were engaged in sex work, and suggested that a “lack of livelihood options” for the community contributed to the high rates of criminalised activity (NACO, 2015). Harsher anti-begging laws, specifically targeted at the transgender community could increase the misuse of anti-begging laws by the police to discriminate against the transgender community. These substantial departures to the comprehensive approach to ensuring Transgender rights laid out in the NALSA judgment has prompted international criticism with Amnesty International launching a petition and stating they are “deeply concerned that the Bill, if passed in its current form, will undermine the rights of transgender and intersex persons” (Amnesty International India, 2017).

1. 2. Labels and gender minorities

Transgender

In this report, as in much academic, legal and policy discussion, the term ‘transgender’ is used as an umbrella term to include all individuals who do not identify with the identity they were gender they were assigned at birth. The Supreme Court decision included a highly expansive definition of the term transgender encompassing anyone who self-defined gender differs from that assigned to them at birth and citing the Yogyakarta principles. It issued a further clarification after it’s 2016 ruling specifying that the ruling applied only to transgender people and not to gay or lesbian people. As a result of its widespread use in policy and law, an understanding of the non-binary experience in the wider transgender community is vital. There are some issues with a straightforward interpretation of transgender as an umbrella term both due to the difficulty in applying a Western conceptualisation of gender in India; a country with various pre-existing cultural and religious gender-variant identities (such as hijras and kothis) and due to preconceived prejudices both within and without the LGBTQIA+ community affecting how individuals chose to regard their gender identity.

The first and most obvious issue with the use of transgender as an umbrella term is the literal meaning of ‘trans’ as ‘across’ which implies that the term transgender only refers to individuals who identify opposite their sex at birth and involving a full transition which potentially includes a medical intervention such as surgery or hormones. Thus the term transgender can itself be considered rooted in binarism. Previous investigations of the FTM community have found that some transsexual people dislike to be referred to as transgender as they have always felt they were men, while others feel it is an important label to dismantle the gender binary (Mohan & Murthy, 2013).

Furthermore, societal prejudices against visible transgender communities such as the hijra due to their association with begging and sex work, can lead some gender non-conforming individuals to reject the term transgender. For example an individual interviewed for this study expressed vehement dislike for the label of transgender as he associated the term with hijras and begging, saying “transgenders they have a good hand, they have a good leg, they have a good brain, but why [are] they begging? That I don’t like.”. The total association of the term transgender with the hijra and cultural third gender communities is problematic as it can lead to the further erasure of other gender identities including transmasculine and gender non-binary individuals who already are much less visible than hijra and other transfeminine identities.

The increased use of Western terms for gender and sexual identities in India is linked to the increased prevalence of NGOs working with LGBTQ+ in India. Research has found a clear divide among gender minorities who have interacted significantly with an NGO and those who have not, with individuals who have had contact with NGOs more likely to use terms such as transgender in their identity (Mohan & Murthy, 2013). As noted by Mohan and Murthy this can lead to ‘cloaked classism’ where individuals who identify using Western terms regard indigenous identities as “backward, dirty or behind the times”.

Cultural Gender Identities

The existence of historical and cultural transgender identities in India has had a complex impact on the modern LGBTQ+ rights movement. Due to the high visibility of certain cultural gender identities, the public have a greater understanding of (some) transgender identities, which has paved the way for policy and legal change such as the NALSA judgment and the 2016 bill. In addition to this, one interviewee described how cultural identities can blur non-binary and binary identities, using the example of kothi, which is a fluid term which can be used for a spectrum of transfeminine identities from “totally a woman or just not a man”. However, the existing cultural identities can cause problems, firstly as transgender identity is often conflated with a specific cultural identities (for instance, the idea that all transgender people are hijras or similar). Secondly, there is a distinct lack of transmasculine cultural identities. Until recently the term transgender was used in Asia to refer only to transgender women. This has resulted in the on-going erasure of transmasculine people, their exclusion from legal and policy discussion and the formation of policy which only targets visible transfeminine identities (such as the hijra) (UNDP & ATPN, 2017). Mohan & Murthy (2013) described how FTM transgender individuals have argued that the widespread use of Indian names for male-born gender minorities by governmental organisations and NGOs has led to their greater visibility and validation. The FTM individuals interviewed described how they feel the need for an Indian origin name for female born gender and sexual minorities (Mohan & Murthy, 2013). Some mentioned they identified with the term tirunambi, used by the Tamil Nadu government.

MSM and TG

Due to the focus on HIV/AIDS prevention in much of NGO interaction with the LGBTQ+ community, terms such as MSM (men who have sex with men) and TG (transgender) are commonly used to categorise community members using rhetoric determined by high-risk groups for HIV transmission. These limit identities (for instance, excluding transmasculine identities) and conflate sexuality and gender (for instance, the categories MSM and TG may create confusion for where transfeminine or non-binary people who have sex with men should fit in). This confusion was evident with one interviewee who identified as MSM rather than transgender and said “There is a gender called MSM, beyond transgender. This is the mother of transgender”. Another interviewee discussed how these terms contributed to a politics of identity where “people want to choose whatever identities get the best government schemes and things like that…most people stay with MSM until they want to feel that they would be better off as a transgender”.

Third Gender

The term ‘third gender’ again results in mixed opinions. Critics argue that creating one ‘other’ -esque category for all non cisgender identities can have the effect of undermining the diversity of gender identities within the transgender community; conflating intersex and transgender identities, and reinforcing the gender-binary by serving to “protect [the] “first” and “second” categories from becoming analytically muddled or contaminated” and “imply [they] are inviolable and unproblematic” (Towle and Morgan, 2002). Proponents of the third gender definition argue that it dismantles the gender binary by forcing people to question their own notions of male and female in order to consider what constitutes a third gender and that the vagueness of ‘third gender’ and ‘other’ is preferable to a rigid list of options as it allows individuals to construct its meaning for themselves. While a single third gender option makes most sense practically, whether it will reinforce or undermine the gender binary depends on the definition of third gender adopted by the government. If it is a broad one inclusive of various gender minorities and intersex people written with an understanding of the complexities and diversities of gender identities outside the gender binary, then it is likely to have a more positive effect than a limited definition geared towards hijras and other cultural groups.

Non-Binary

By its very nature, defining the non-binary population is difficult as it encapsulates all identities outside the binary and is thus highly subjective. As one interviewee points out “In very rural situations, in a very conservative, orthodox family… a woman wearing anything other than the sari is seen as not conforming to the expected norm of femininity”. The distinction between gender non-conformity and non-binary gender identity is difficult to determine, particularly as gender minorities have little platform to discuss their gender identity freely. Furthermore, within an Indian (or in this case Tamil Nadu) cultural context, an interviewee commented that individuals “may not necessarily frame their discourse as ‘I’m not a non-binary person identity’…they would say I’m comfortable being a man at home, I’m comfortable being a woman when I’m with you and I want it to be that way. So the language could be different but the fact is clear that they are identifying outside the gender binary”.

Non-binary individuals do not form a cohesive group in the same way that transgender women or lesbian and gay communities have emerged as a coherent group. Thus, if LGBTQ+ rights progression functions through the setting up of a marginalised group with a coherent identity and demanding equality between that group and the rest of the population, non-binary people are likely to not be represented in advocacy efforts. Instead of this, it is essential that LGBTQ+ (and particularly transgender) rights movements, frame their arguments within a human rights context, particularly the right to privacy and the associated right to freedom of speech. It is essential when drafting laws and policies that aim to protect the transgender community, that language is used that is inclusive of gender non-binary individuals and that it does not only cater towards the needs of the highly visible communities like the hijra. Key service-providers for the transgender community should be sensitised to understand transgender as an umbrella term, to ensure that non-binary individuals are not refused access to services due to assumptions that transgender laws and policies only apply to a sub-section of the transgender community.

 

2.3 Cultural Shifts

Despite a lack of public awareness on various gender identities and the taboo nature of gender discussions in many communities in India, cultural shifts have begun (notably in the realms of art and fashion) which are bringing discussion of gender-neutral and gender non-binary identities into the mainstream media. For instance, in 2015 the Hindustan Times published an article describing the rise in popularity in gender-neutral or gender-fluid fashion on the Indian runways. With genderless fashion designer Anita Sharma commenting that “androgynous models, trans models and skinny males with feminine features are becoming popular” (Kaushal, 2018). Celebrated director Rituparno Ghosh gave an interview with the Times of India where he discussed his third gender identity saying “I am not a man-man. Neither am I woman” and criticising the misconception that all who don’t identify as strictly male would therefore want to become a woman, “It is assumed all feminine gay men desire to be women. It is an inability to see beyond the binaries of male-female, hetero-homo” (‘I am not a man-man’, 2017). This emergence of gender nonbinarism in the media is particularly important when one considers the need for role-models in forming ones perception of their gender identity.

 

3: The Gender Non-Binary Experience in India

3.1 Societal Discrimination

While it is difficult to generalise the experiences of non-binary individuals who vary in gender assigned at birth, caste, class and geographical region, it would be fair to say that stigma and discrimination against non-binary individuals, is common and can be severe. Despite there being public awareness of transgender identities due to the visibility of certain communities like hijra communities, there is widespread conflation of transgender identities and intersex identities, with many believing that transgenderism is the result of biological differences. As noted earlier, this confusion is pervasive and has even found its way into the 2016 Transgender Persons (Protection of Rights) bill. Another pervasive misunderstanding about the transgender community, is the inability to understand gender identity as separate to sexual orientation, for instance assuming that all transgender people must be heterosexual, or that all lesbian women want ultimately to become men. Several cultural identities mix conceptions of gender and sexuality, for instance kothis who are usually defined as men with feminine characteristics who assume ‘the feminine role’ in male homosexual intercourse. This could lead to assumptions being made about the supposed sexual orientation of gender minorities which can result in further stigma, particularly in light of the fact that Section 377 of the penal code, which criminalises homosexuality, has not yet been repealed.

With regards to non-binary individuals, the extent of discrimination faced depends on how much an individual ‘passes’ for cisgendered in society. When asked about the discrimination faced by people with non-binary identities, one interviewee commented that:

“In society it depends not on how you identify but how you are profiled. There are a minority of transgender women who consistently pass as women in social settings… but for the majority, I think they are profiled as non-binary, so the discrimination experienced is the same, even if they identify in the binary.”

Contrastingly, some gender non-binary people may experience markedly less discrimination in public settings if they have chosen to hide their gender identity in order to pass. As one interviewee put it “ I don’t like to change my physical appearance, if my physical appearance is like [this] if I fell down someone would help me… if I am wearing saris or changing my identity they don’t accept me.” He goes onto describe how he only expresses himself in a feminine way when out of his city saying, “If I go far away I will shave all these things…for two days I will be like a woman and after 2 or 3 days everything is grown and I will come to my home and act like a male”. However, while passing as cisgender may allow some to live a life relatively free from discrimination and violence, there is evidence that this has a psychological toll on the mental health of the individual. A link between the two is suggested in the 2015 US transgender survey discussed later on in this report where non-binary individuals were less likely to experience discrimination as a result of passing as cisgender, but more likely to have experienced severe psychological distress (National Center for Transgender Equality, 2015).

The particular discrimination faced by non-binary individuals is compounded by factors including caste, class, region and gender assigned at birth. One particular challenge when attempting to design affirmative action schemes for the transgender community, is the question of how to deal with multiple discriminations. For instance, how would government schemes targeting lower-caste individuals interact with those aimed at women or those aimed at the transgender population?

A particularly important factor in contributing to the non-binary experience is the gender assigned at birth. An interviewee commented that:

 “There has been a cultural acceptance of transfeminine and transwomen communities…the privilege of being assigned male gender at birth gives more social mobility and more access to education which helps them come out and assert their identity. Even if their identity is one of denial of masculinity which in fact gave them that privilege.”.

People who were assigned a female gender at birth but identify in the transmasculine spectrum are more likely to be seen as women by their family and to undergo human rights violations at the hands of the family institution such as forced marriage or being imprisoned in the home. (Mohan and Murthy, 2013). In general, transmasculine individuals and communities have a much lower visibility than their transfeminine counterparts. One interviewee described how, while according to their knowledge, in Chennai there were no formal CBOs for transmasculine people, there are informal support groups for instance secret facebook groups or whatsapp groups. However, the number of people who visibly identify themselves as transmasculine are very low.

Furthermore, discrimination can even occur within the LGBTQIA+ community with hierarchy forming based on how much a person has transitioned physically, and a full transition to a binary trans identity being seen as the end goal. (Mohan & Murthy, 2013) .One interviewee explained how transmasculine support groups in Chennai “are very rigid…once you join them, they keep trying to evaluate you continuously, ‘Are you ready to transition to be a man and one of us? Or maybe you’re just a lesbian woman’”. This pressure to transition is also found in transfeminine groups, one interviewee described how “there is a different caste-ism. MSM, Transgender… transgenders are telling us ‘you peoples are wearing pants and shirts, you are not a third gender. We are third gender. So come. Wear a saree’”. However the dynamics of the pressure to transition seem to be different (and less intense) as within the transfeminine group there is more resistance to this pressure, as well as the existence of cultural groups such as kothi that legitimise a spectrum of transfeminine identities.

3.2 Legal Gender Recognition on Identity Cards

Legal gender recognition is an essential step in ensuring gender minorities have full citizenship rights and access to their human right to self-determination, dignity and freedom (International Commission of Jurists, 2017). Although third gender options have been rolled out in many identity cards, there are significant and confusing differences in applications for changing gender markers on various identification documents, and no clear guidance on the application process.

Transgender people need to provide medical evidence of gender-affirming surgeries to change their legal gender marker on a passport, either to male, female or the third gender option. (UNDP & ATPN, 2017) This prevents all transgender people who do not want gender-affirming medical treatment from accessing a legal gender change and ignores the reality of the medical situation in India whereby even for those who want gender-affirming surgeries, access to treatment is limited and government hospitals providing SRS are rare. These kinds of restrictions would potentially disproportionately affect gender non-binary individuals who are less likely to opt for gender-affirming surgery on offer in hospitals currently. One interviewee described how he hadn’t changed his ID as he felt he would only be able to change his if a doctor confirmed that he had had surgery, which he didn’t want.

For other documents the transgender individual needs to submit a notification of the gender change through the Gazette of India, which seems an unnecessary step which could cause an individual to not change their gender marker to avoid publicising their transgender identity out of fear of discrimination. Formal name changes seem to also require that that the name change is published in a local newspaper, and examples have been found where officials refuse to accept name changes where the new name does not match how the applicant is profiled (UNDP & APTN, 2017). Restrictions such as these can lead to discrimination and harassment during the process of changing names and gender marker. For example during the Mythri pension scheme in Karnataka, there were reports of government officials telling transgender women who were dressed in trousers and a shirt to return in a saree and lipstick, without facial hair to obtain their pension (UNDP & APTN, 2017). This type of discrimination could particularly affect gender non-binary individuals who are not profiled as transgender. NGOs working with the transgender community often cite helping individuals apply for gender marker changes as part of their work showing how inaccessible these processes can be to community members. The process for changing gender markers should be clear, uniform across identity documents and accessible for the transgender community.

Changing a gender marker become easier once one document showing a third gender has been obtained. Some states (such as Tamil Nadu) issue a specific transgender identity card, which makes it easier to change gender markers on other documents. Some of these involve controversial screening processes where a transgender person faces a screening committee often made up of a medical doctor, psychologist and community member. Advocates for the transgender community are divided on screening committees with some arguing that no one should have to prove their gender identity and that such committees go against the principle of self-determination. Others argue that these screening committees are necessary to prevent cisgender people from pretending to be transgender in order to avail benefits.

Finally, there is no clear guidance on how changing name and gender makers impacts existing legal entitlements. This creates a significant barrier for transgender individuals considering changing their name and gender. Examples of concerns about name and gender changes expressed by transgender individuals include: would you be able to access property left to you in your birth name and gender? What would happen to entitlements accessed based on a previous gender, for instance would transgender men lose jobs they’d attained as part of a ‘women quota’ or lose loans acquired at rates for women? Or, under laws where gender affects entitlement, how would the law work for those identifying as third gender, for instance where gender impacts how much of a property one is entitled to? Some employers might also to refuse to allow their employees to access their savings if they have changed their name or gender. (International Commission of Jurists, 2017). Clear guidance is needed on these issues in order to protect the prior entitlements of non-binary individuals who seek to change their name and gender and prevent discrimination as a result of a legal gender change.

3.3 Healthcare

Discrimination in healthcare settings against those profiled as non-binary is common, and is particularly problematic as it is likely to affect the health-seeking behaviour of gender minorities, who are particularly at risk of adverse mental and sexual health. One interviewee describes how, when he visits the doctor “they won’t call me, they will keep sitting me and they call [those] who came after me. At last they will give preference for me… after knowing the gender there is no preference”.

 

Some states have begun providing government sponsored gender-affirming healthcare. However, even in these states very few hospitals provide SRS, for instance in Tamil Nadu free surgery is only available in a couple of hospitals in Chennai and is only offered irregularly. Additionally almost all the surgeries are provided for transgender women, not transgender men or non-binary people. (UNDP & ATPN, 2017).. An interviewee from Tamil Nadu commented that these seem to only extend to basic male to female surgery (such as a penectomy and vaginoplasty) and potentially breast implants (with the recipient paying for the cost of the implants themselves). Surgeries for a female-to-male transition tend not to be offered in government hospitals, and even in private practises surgeries offered seem limited to a double mastectomy or hysterectomy. Other medical interventions such as hormonal treatment or laser hair removal are only available privately. Government-sponsored gender-affirming medical treatment is targeted towards male-to-female transgender individuals, with few medical treatments offered for female-to-male transgender people, or non-binary individuals who may want some medical interventions (for instance to androgenise the body) but not a full transition. Furthermore, with only few hospitals in a few states offering gender-affirming surgery, even patients who can afford private healthcare may be unable to travel the long distances needed for surgery, post-surgery observation, counselling and hormone therapy.

Mental health provisions for transgender individuals are sorely lacking, particularly considering the evidence of the vulnerability of the transgender community to various mental health problems including depression, anxiety and risk of suicide.  This is particularly problematic for non-binary individuals who (from limited research) may be more at risk of poor psychological well-being and mental health illness. The problem of the lack of mental health provisions for the transgender community is intensified by the stigma associated with mental health and a distrust of counsellors and other mental health professionals by the transgender community due to previous interactions with transphobic health workers.

3.4 Justice

An International Commission of Jurists report on obstacles to justice for India’s queer population both condemned existing laws (such as Section 377 of the IPC) which clearly impede the progression of transgender rights and noted that laws and policies aiming to protect transgender rights face systemic problems in their operation. (International Commission of Jurists, 2017).

Criminal Tribes Act (1871): The Criminal Tribes act brought in under the British raj subjected the hijra population to compulsory registration and monitoring, outlawed castration and, later, made sexual non-conformity a crime. Despite officially being repealed in 1952, the Criminal Tribes Act brought in under the British Raj was a key factor in the creation of societal prejudice and discrimination against ‘tribes’ such as the hijra and the wider transgender community.

Section 377 of the Indian Penal Code (1861): Another British colonial legacy, Section 377 of the Indian Penal Code criminalises “carnal intercourse against the order of nature with any man, woman or animal”. The vague, heteronormative wording of the law is used to criminalise same-sex relationships and the wider LGBTQ community. This law is used disproportionately on those profiled as transgender women who are assumed to be men who have sex with men by police officials and may be threatened and arrested even where evidence of “carnal intercourse” is lacking (UNDP & ATPN, 2017). In their NALSA decision, the Supreme Court declared that “Section 377, though associated with specific sexual acts, highlighted certain identities, including Hijras, and was used as an instrument of harassment and physical abuse against Hijras and transgender persons”. The influence of Section 377 can also be seen in other national and state-level laws, for instance the Karnataka Police Act 1963 which gave the police commissioner the ability to suppress “undesirable activities” of transgender women, derogatorily referred to as “eunuchs” in the legislation (UNDP & ATPN, 2017).

In 2009 a landmark case of Naz Foundation Trust vs the Government of NCT of Delhi found that Section 377 of the IPC contravened the human rights enshrined in the Indian constitution. In 2013, this was overturned by the Supreme Court on the grounds that only parliament, and not courts, should change laws. However, there are signs that the Supreme Court is preparing to repeal Section 377 again. In August 2017 the Supreme Court ruled that the right to privacy is a fundamental right under Article 21 of the Indian Constitution, in a move seen by many as paving the way for a repeal of Section 377 based on it contravening this right to privacy. The Supreme Court resumed hearing petitions seeking the repeal of Section 377 and a decision is expected within the year.

As it stands Section 377 is a clear barrier for the advancement of the rights of non-binary individuals. Lack of clarity on how this homophobic law should be applied to the transgender community has led to it being used to target and discriminate against the transgender population. This has contributed to social stigmatisation of sexual and gender minorities and has led to many feeling reluctant to present themselves as transgender or non-binary in public. Significantly, Section 377 has impacted health initiatives, particularly those concerned with HIV prevention, as it has led to reduced government funding for NGOs and CBOs working with LGBTQ communities that may include men who have sex with men. It is likely that this law is used to target anyone that police profile as a homosexual, including non-binary individuals on the trans-feminine and trans-masculine spectrum. With regards to female-born gender minorities, Section 377 is likely to legitimise homophobic prejudices that lead to police officials playing the role of “custodians of morality”, particularly in cases where there is conflict between a family and a female-born non-binary individual (Mohan & Murthy, 2013).

Immoral Trafficking Prevention Act 1986: While sex work is technically legal in India, the Immoral Trafficking Prevention Act criminalises various aspects of sex work (for instance the running of brothels, soliciting, or doing sex work near a public place). Despite this, the law is used to target and discriminate against sex workers and serves as a barrier preventing those in sex work from accessing justice. Sex workers are often reluctant to report crimes (for instance assault or abuse from a client) to the police who may dismiss their claims due to their sex worker status or, at worst, abuse them further. A NACO, NIE and UNDP study found that 62% of transgender individuals identified were engaged in sex work (National Aids Control Prevention Organisation, 2015). While this study mostly represents the experiences of the hijra community, the Immoral Trafficking Prevention Act also negatively impacts other transgender men, women and non-binary people, who either engage in or are associated with sex work.

Public Nuisance Laws, Section 290 of the IPC:

Alongside specific laws which can be used to target the transgender community, there is also evidence of widespread use of vaguely worded ‘public nuisance laws’ to target people profiled as transgender or non-binary for being in a public space. The use of these laws to arrest transgender individuals is a clear abuse of power on the part of police officials that serves to violate the human rights of the transgender individual and perpetuate fear of the justice system in the transgender community.

Anti-begging laws can used to target transgender individuals, most likely as a result of the association between hijra individuals and begging and the vague definition of a beggar as “having no virile means of subsistence…in any public space” (UNDP & ATPN, 2017). Worryingly, the 2016 Transgender Persons (Protection of Rights Bill) includes a clause specifically criminalising begging by the transgender community. As anti-begging laws are already in place, this provision is unnecessary and could lead to further discrimination against transgender individuals in public whether they are begging or not. One interviewee commented that as the latest version of the bill has also scrapped reservations in education and employment “they are saying you don’t have entitlement to education, you don’t have entitlement to employment but you can’t even beg and live”.

Although progress is being made through the Supreme Court and Parliament to construct legislation to protect transgender rights, the impact of these laws will be undermined by systemic issues of prejudice and discrimination in the justice system. This discrimination includes prejudices of government officials, lack of access to LGBTQ+ friendly lawyers and police harassment and violence (International Commission of Jurists, 2017). It is likely that this discrimination from the justice system (and others) prevents many non-binary individuals from presenting their gender identity in public places. More needs to be done to sensitise key stakeholders in the justice system to ensure that existing legislation is not used to target people profiled as transgender and non-binary and so that non-binary people feel that they will be protected by the justice system. Additionally, laws explicitly targeting sexual and gender minorities, such as Section 377, must be urgently repealed to ensure meaningful progress in the protection of transgender rights.

3.5 Education and Employment

Discrimination against a person profiled as gender non-binary is pervasive both in schools and employment. There are many reports of transgender individuals being denied entrance to college or discriminated against in the employment process. This obvious discrimination can be challenged in court, particularly after the NALSA judgement. However, the social discrimination and isolation experienced by transgender individuals who do enter education and employment is more difficult to tackle legally and instead requires a shift in public perception of the transgender community, and sensitisation of teachers and employers. One interviewee described feelings of isolation at work where “after knowing my gender identity they won’t sit near and eat [with] me, they will form a separate group”. In addition to this, there is little education in schools about gender and sexuality. One interviewee who works on increasing awareness of gender and sexuality described how most of their work took place at colleges saying “in schools we are more worried about the legal repercussions because if the parents come back and say you have not given us age-appropriate messaging for our children it’s very difficult to deal with it”. This lack of education can lead to stigmatising and discriminatory attitudes towards the transgender community and can affect young transgender youth who might have no access to information to help them understand how they are feeling. One interviewee described that, while at school “When I’m studying 8^th standard at that time I don’t know why I am behaving like this. I don’t know, I’m crying… now I am proud to tell you I am TG, now I’m not feeling lonely because I know what is my gender”.

Progressive reservations in education and employment for the transgender community, which were present in both the Supreme Court’s NALSA judgment and early drafts of the Transgender Persons (Protection of Rights) bill, have been dropped in the most recent draft of the bill. Reservations in education and employment for the transgender community would help to provide opportunities for a community that is statistically likely to rely on sex work or begging for income. Sensitisation and education on transgender identities and issues is also needed in both schools and workplaces to change public perceptions of the transgender community.

Non-binary people may be more able to hide their gender identity and present themselves as in a cisheteronormative way for the purpose of education and employment, and thus attain higher educational levels and better employment opportunities than the visible transgender community. There is a lack of research which comprehensively examines the transgender community’s interactions with various domains of public life. The data that exists on the education and employment of the transgender community is almost entirely focused on hijra and other cultural gender minorities and probably gives an incorrect impression that all the transgender community (including non-binary identities) rely on begging and sex work for their primary income. This contributes to the invisibility of non-binary individuals who hide their gender identity in public life. More research is needed on the transgender experience of education and employment in India, in order to fully understand the challenges faced by non-binary individuals in these areas. Although hiding one’s gender identity may increase the opportunities of education and employment, it is likely that this causes emotional and psychological stress and may lead to adverse mental health for non-binary individuals. A shift is needed in societal perception of the transgender community so that non-binary people feel able to express their gender identity in public, are protected from discrimination and harassment and are given equal opportunities to succeed.

3.6 Marriage

There is little information about the legal status of relationships and marriages involving transgender individuals. For example, for a marriage between a cisgender man and transgender man, does the marriage remain legal after transgender person transitions? Does it depend on whether the gender marker changes? What about relationships between two transgender individuals? There is also no clear guidance on whom individuals who have opted for the third gender marker can legally marry. (UNDP & ATPN 2017).

These questions show that, while the gender and sexual identities of non-binary individuals should not be conflated, and it should not be assumed that all non-binary people are also non-heterosexual, the legalisation of same-sex marriage (which includes the legalisation of marriage of third gender or transgender individuals) is a key step in ensuring that the non-binary community has the same rights to and protection of marriage as the cisgender community. 

3.7 Housing, Transport and Rest-rooms

Transgender individuals that are profiled as non-binary also face discrimination when looking for housing and may be charged significantly more rent than cisgender tenants. Public transport is another key area where discrimination and violence against people profiled as non-binary can occur, with one interviewee noting that “There are some streets in the city which are accessible only to cis-gender or cis-passing men at certain hours of the day”.

Data collected in Bengaluru found assaults against transgender people are most likely to occur in public parks and toilets (Roy, 2016).  While the 2014 Supreme Court judgment included a directive for separate toilets to be built for the transgender community in public places, this has not implemented. A 2016 report by Reuters found that across India only one such third gender toilet had been built, in Mysore (Roy, 2016). There is considerable debate within the transgender community as to whether separate transgender or third gender toilets should be built or whether current male and female toilets should be made gender neutral. Advocates for gender-neutral toilets argue that gender neutral toilets would be an important symbolic step towards the de-emphasis of gender and would prevent transgender men and women having to decide whether to enter male, female or transgender toilets. Contrastingly others argue that these gender neutral toilets would lead to increased harassment and violence, particularly from cisgender men and that transgender or third gender specific toilets would act as a public safe space for the transgender community.

 

4. Analysing India’s Transgender Policies

In this section, India’s laws and policies will be analysed in order to find best practice examples which are inclusive of gender non-binary identities.

It should be noted that there is a paucity of data globally, and particularly within India, relating to the transgender community. Where data exists, difficulties arise due to varying methodology and definitions and occasionally due to their adherence to gender binarism in their approach or the assumption of a universal transgender experience. For instance, it is unclear how the 2011 census in India defined and collected data on the transgender community and whether it broke down its data into the different identities included under the umbrella term of transgender. It is therefore likely that this census focused on the hijra population of transgender people in a guru-chela structured community. There are also inherent difficulties in studying the experiences of any gender minority, as within the transgender community gender identities and sexual orientations can be diverse, ambiguous and overlapping. Non-binary gender identity is, by its nature, heterogenous. In addition to this, unlike the defined separation of gender and sexuality in Western LGBTQ+ discussion, many cultural identities in India do not distinguish between the two, for instance kothis. This has most likely contributed to general conflation of gender and sexuality, which increases the difficulty in advocating for the rights of gender minorities while Section 377 remains in place.

4.1 Impact of the NALSA Judgment

The NALSA judgment has resulted in several positive affirmative action schemes for the transgender community. Both national and state governments were directed by the Supreme Court to devise social and welfare schemes for the TG community and to consider them as a “socially and economically backward class”. The Ministry of Labour and Employment asked states to provide TG individuals with vocational training while the University Grants Commission directed schools and universities to create a more transgender-friendly environment through scholarships and infrastructure changes.

4.2 State Policies for Transgender People

The 2011 census found a wide disparity in the prevalence of transgender people between the states in India, with 28% of ‘third gender’ individuals counted residing in Uttar Pradesh (Nagarajan. 2014). In addition the census found a tendency for transgender people to reside in urban areas, although given the limitations of the census data discussed earlier it is difficult to determine if this is a genuine trend or the result of the reluctance of transgender people living in rural areas to disclose their identity and the increased visibility of transgender people in cities. In looking for best practice this report will examine the Tamil Nadu Welfare Board, the first of its kind, the recent 2017 Karnataka Transgender Policy and the Kerala Transgender policy, which is widely thought to be the most progressive state policy.

A Tamil Nadu

Tamil Nadu was the first state to set up a Transgender Welfare Board in 2008 to address the social protection needs of aravani or thirunangai (male to female transgender people). The board is led by the Minister of Social Welfare, Special Commissioner and Secretary of Social Welfare and is made up of both official and non-official members. Of the eight non-official members, seven are TG community leaders and one is an NGO leader (Chakrapani, 2012). The board serves a dual purpose of introducing transgender-specific schemes of its own and facilitating transgender people’s access to existing social protection schemes of the state and central government. Transgender-specific schemes introduced by the board include: grants for self employment and higher education, short-stay homes in Chennai to serve as temporary shelters for TG people. Existing government schemes that were utilised by the board for the transgender community include: free land pattas, provision of free SRS through select government hospitals and the provision of ration cards to TG people (Chakrapani, 2012).

The Tamil Nadu Transgender Welfare Board initially only targeted aravanis and conducted several enumerations in order to issue community members with an identity card. This was dependent on a screening process in front of a committee including the district collector, deputy director of medical and rural health services, district social welfare officer, a clinical psychologist, psychiatrist and TG community representative. During the screening they assessed the psychological status of the individual alongside the emasculation status. The TG representative would then assess whether the individual belonged to the TG community. Thus the three categories of people considered aravani and able to qualify for a ration card include

• Persons who have undergone emasculation, live in full-time woman attire, and who may or may not be living with their biological family members
• Persons who have not undergone emasculation (yet), live in full-time woman attire, and who may or may not live with their biological family members
• Persons who are affiliated with the Aravani’s Jamath system, who may or may not have undergone emasculation, live in part-time woman attire or even full-time male attire, and who may or may not be living with their biological family members Chakrapani, 2012)

Screening procedures such as the one used by the Tamil Nadu Welfare Board have been fiercely criticised by activists who argue they contravene the human rights of the transgender people involved (namely their right to live with dignity, their right to privacy and their right to protection from medical abuses). By initially targeting only aravani the Tamil Nadu Transgender Welfare Board schemes only support a subsection of the transgender population in Tamil Nadu, excluding transmasculine people, non-binary identities and male to female transgender people who aren’t associated with the organisational structure of aravanis and live outside of the community.

RTI petitions by ‘The Hindu’ in October 2015 found that the Transgender Welfare Board has not been functioning this way for several years (perhaps since the change in government in Tamil Nadu from DMK to AIADMK in 2011, (Hamid, 2015)). Specifically the RTIs found there have been no non-official members (and thus no direct input from the transgender community in decision-making) since 2011 and no meetings since 2013. In addition to this they found that since 2008 only 2 people had received educational assistance and only 29 houses had been built, all of them in Coimbatore, while funds have been sanctioned for another 133 in eight districts (Hamid, 2015). 

Tamil Nadu serves as a useful model that can be used by states to both devise new strategies to support the transgender community and co-opt existing strategies. Key elements include involvement of the transgender community in meetings of the board and participation of different government departments in the board in order to coordinate cross-departmental responses to the problems faced by the transgender community. However, it is imperative that self-identification of gender (as laid out in the NALSA agreement) is the only requirement for access to ID cards and schemes for transgender welfare. Further, the Tamil Nadu Welfare Board is an example of how policies can look good on paper but fail to be put into practice effectively, or in the long-term. Policies should be drafted with details on how they will be implemented and when and how they will be reviewed on their effectiveness.

Read the full paper here.