Gender construction within law: Case of Transgender Persons (Protection of Rights) Act, 2019

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Photo by Sharon McCutcheon

The Transgender Persons (Protection of Rights) Act, 2019 is a landmark legislation which seeks “to provide for protection of rights of transgender people, their welfare, and other related matters.” Breaking away from gender binary conceptualizations it includes “trans-men and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar and hijra” in its ambit. It prohibits wide-ranging discriminatory practices against transgender persons, “including denial of service or unfair treatment in relation to: (i) education; (ii) employment; (iii) healthcare; (iv) access to, or enjoyment of goods, facilities, opportunities available to the public; (v) right to movement; (vi) right to reside, rent, or otherwise occupy property; (vii) opportunity to hold public or private office; and (viii) access to a government or private establishment in whose care or custody a transgender person is.” Additionally, it sets up a regulatory body - National Council for Transgender persons (NCT) whose objective is to “advise the central government as well as monitor the impact of policies, legislation and projects with respect to transgender persons.” And, to “redress the grievances of transgender persons.” (Ministry of Social Justice and Empowerment 2019) Similarly, National Legal Services Authority v. Union of India (NALSA v. UOI) judgement by the Supreme Court of India is a seminal decision in gender equality jurisprudence which grants legal recognition to third gender persons and upholds their fundamental rights. Important issues concerning construction of gender identity by the state come forth when the Transgender Persons (Protection of Rights) Act, 2019 is read with NALSA v. UOI judgement. One of the issues is the right to self-identification of gender as male, female or third gender by a transgender person. In the NALSA v. UOI judgement, the Supreme Court reveals its ambivalence towards establishing gender identity. It acknowledges - “Article 21, as already indicated, protects one’s right of self-determination of the gender to which a person belongs. Determination of gender to which a person belongs is to be decided by the person concerned. In other words, gender identity is integral to the dignity of an individual and is at the core of “personal autonomy” and “self-determination.”” In the same judgement, it adds - “As already indicated, we cannot accept the Corbett principle of “Biological Test”, rather we prefer to follow the psyche of the person in determining sex and gender and prefer the “Psychological Test” instead of “Biological Test.”” (Supreme Court of India 2014) Use of a “Psychological Test” renders the principle of self-determination void as it takes away agency to self-identify from a transgender person to an external entity. The subsequent rules which came out in 2020 echoed this viewpoint. A District Magistrate’s certification is required to establish transgender identity, who has the power to reject an application subject to procedures mentioned in the rules.

In the light of these connotations, three elementary conceptualizations of gender constructions can be evoked. First, by giving due cognizance to multiplicities of gender identities, the state has internalized the outcomes of gender polemics - more particularly with respect to queer movement. Mobilization by activists along the lines of subculture identities enables positioning of differential narratives within the gender justice discourse. “The existence of a binary or dyadic system always creates a situation of latent conflict but the entry of a third term creates a new dynamic as ‘the dyad represents both the first social synthesis and unification, and the first separation and antithesis. The appearance of a third party indicates transition, conciliation, and abandonment of absolute contrast.’” (Linstead & Pullen 2006) Ideation of gender evolving from a binary understanding of sex/gender categories to fluid multiplicities has its effects on redefining state-citizen power relations. For “power seemed to be more than an exchange between subjects or a relation of constant inversion between and subject and an Other; indeed, power appeared to operate in the production of that very binary frame for thinking about gender.” (Butler 2006) Second, by institutionalizing identifiability, the notion that an individual’s gender identity can be “fixed” and “classified” is upheld - which is problematic in the understanding of gender as a performative act. “As the effects of a subtle and politically enforced performativity, gender is an “act,” as it were, that is open to splittings, self-parody, self-criticism, and those hyperbolic exhibitions of “the natural” that, in their very exaggeration, reveal its fundamentally phantasmatic status.” (Butler 2006) Fixation of gender identity is rife with challenges, as the methodological basis of such determination leaves no ground for something which is in flux. On one hand, this makes a case for administrative convenience and targeted intervention by simplification of analytical categories of being male, female or transgender. But on the other hand, it casts the notion of identity on stone which disallows seeing gender as an evolving and dynamic phenomenon. “Doing gender involves a complex of socially guided perceptual, interactional, and micropolitical activities that cast particular pursuits as expressions of masculine and feminine “natures.”” (West & Zimmerman 1987) A corporeal framework of understanding gender fails to capture nuances of gendered living and to avoid reductionism. Third, by formalizing certification of identity, the state has sustained and standardized the role of its administrative apparatus in construction of gender identity. The belief of such standardization reflects the lack of faith in citizenry and their ability, and an esoteric postulation of “expertise.” To borrow from Heidegger’s vision - performativity of standards allows the possibility to “enframe” aspects of the world so as to make them appear as “standing reserve” - as something that can be summoned when needed. Such enactments of repetitive standards effectuate an “ordered, regular and stable” gender identity. Polity and negotiation play a crucial role in the process of standardization as it tends to “amplify certain aspects of the world while reducing others,” thereby facilitating inclusion and exclusion of some ideas, thoughts and praxis. The “utopian social engineering schemes” are driven by aspects concerning modernity which might serve the purposes of the state rather than the concerned individual. (Scott 1999)


References:

The Transgender Persons (Protection of Rights) Bill, 2019. (2019). PRS Legislative Research. https://prsindia.org/billtrack/the-transgender-persons-protection-of-rights-bill-2019

National Legal Services Authority vs Union Of India & Ors on 15 April, 2014. (2014). Indiankanoon.Org. https://indiankanoon.org/doc/193543132/

Linstead, S., & Pullen, A. (2006). Gender as multiplicity: Desire, displacement, difference and dispersion. Human Relations, 59(9), 1287–1310. https://doi.org/10.1177/0018726706069772

Butler, J. (2006). Gender Trouble: Feminism and the Subversion of Identity (Routledge Classics) (1st ed.). Routledge.

West, C., & Zimmerman, D. (1987). Doing Gender. Gender & Society, 1(2), 125–151. https://doi.org/10.1177/0891243287001002002

Scott, J. C. (1999). Seeing like a State: How Certain Schemes to Improve the Human Condition Have Failed (0 ed.). Yale University Press

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