Shamayeta Bhattacharya (First Author) is a PhD candidate in Geography, at the University of Connecticut, USA. Her research interest includes health and gender geography, human rights, postcolonial queer literature, and South Asia
Find articles by Shamayeta BhattacharyaBandana Purkayastha (Third Author) is Professor of Sociology and Asian & Asian American Studies, University of Connecticut, USA. She has published extensively on human rights, intersectionality, transnationalism, migrants, violence, and peace
Find articles by Bandana PurkayasthaShamayeta Bhattacharya, Shamayeta Bhattacharya (First Author) is a PhD candidate in Geography, at the University of Connecticut, USA. Her research interest includes health and gender geography, human rights, postcolonial queer literature, and South Asia;
Debarchana Ghosh (Corresponding Author) (ude.nnocu@hsohg.anahcrabeD) is an Associate Professor of Geography, Department of Geography, University of Connecticut, Austin Building, Rm 422, 215 Glenbrook Road, U-4148, Storrs, CT 06269-4148, USA. Tel: (+1) 860-486-4292, Fax: (+1) 860-486-3656. She has published extensively on health geography, quantitative social science, and health disparities among vulnerable populations. She is also an affiliated faculty with the Center for Interdisciplinary Research on AIDS at Yale University
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The amendments to the Transgender Persons (Protection of Rights) Act of India in 2019 address non-binary persons’ constitutional rights, recognition of their gender identity, and non-discrimination laws across institutional spaces (for example, family, workplace, education, and healthcare). The Act discusses legal rights in isolation of praxis, structural support and, more importantly, lacks guidelines needed to substantively access rights. Such a disconnection relegates human rights to merely legal changes with limited practice. In this article, we discuss the achievements and failures of the act from the perspective of a transgender community in India, and the impact it has had on their lives from its formulation in 2014. Although non-binary communities are recognized, they face severe abuse and discrimination. We analyse accounts of 15 transgender persons’ lived experiences and challenges they faced in claiming their rights in Kolkata, a metropolis in eastern India. We used the framework of substantive access to rights, that is, the actual ability to practice and access documented rights, to critically discuss our findings across family, work, education, and healthcare spaces, often showing the gaps between achieved legal status, and the practical realities on the ground. We provide several recommendations to bridge these gaps—improving educational equity for non-binary people, including transgender specific training for healthcare providers and, more importantly, increasing the adequate representation of non-binary people in the positions of negotiation. The road to claiming social and economic rights following legal rights for non-binary gender communities cannot be achieved without overcoming their erasure within families and hypervisibility in public spaces.
Keywords: community perspective, discrimination, intersectionality, legal rights, non-binary gender identity, public spaces
The passage of the Yogyakarta plus 10 principles 1 institutionalized the inclusion of non-binary gender identities such as lesbian, gay, bisexual, transgender, intersex, and queer (LGBTIQ+) persons in the discussions of human rights (Grinspan et al. 2017). Since then, a rapidly growing body of research and activism at regional, national, and international levels indicated that we are in a historic moment when rights for individuals with diverse and overlapping gender identities are gaining recognition (Farrior 2009). Individuals are born with basic human rights, so why is there a delayed recognition of rights among the LGBTIQ+ communities? Chua (2019) attempted to answer this question by pointing out the difference between human rights praxis as a ‘mode’ through which human rights can be made sense of or put into action, as opposed to a ‘theory’, where human rights is a way of life. Embodying aspects of practice serves not only as conduits and triggers but also something much deeper, that is, co-constructing the processes of human rights practice. Protagonists who adopt a rights-based approach form a community of activists who maintain and spread the practice and implementation of rights through collective action and social movements, introducing new claims and claimants. Human rights practice, therefore, forms the heart and soul of human rights discourse or theory.
Significant gaps and delays exist between the formulation of laws and actual practice of these laws leading to barriers and struggles for accessing rights even when policies favouring LGBTIQ+ communities are increasingly accepted worldwide (Parker 2007). Most research on LGBTIQ+ communities within the human rights framework has focused on the legal side of the policies (Cossman 2018; Lakkimsetti 2020) and little has been analysed from the perspective of practice, access, or implementation of these policies (Schulz 2019). The diversity of non-binary gender identities and their specific barriers to access rights situated within spaces and places of their everyday lived experiences has been studied even less. For example, will the barriers to practising human rights differ for a white gay man in the Global North compared to a transgender 2 person in the Global South? Different countries have different levels of progress in terms of human rights for LGBTIQ+ communities (Ilkkaracan 2015). In 2016, 25 countries allowed gay marriage, while ten punished homosexuality with death (Dicklitch-Nelson et al. 2019). Recently published books on gay rights (Hindman 2011) and transgender movements (Nownes 2019) document the struggles, setbacks, and victories of the LGBTIQ+ communities in the United States; similar literature exists for Canada (Phillips 2014). Post-colonial scholars, however, have emphasized that focusing exclusively on legal rights without interrogating systems such as colonialism, neoliberalism, authoritarianism, patriarchy, and class that impede access to legal rights relegates human rights to merely legal changes that affect practice in very limited arenas (Baxi 2007; Kannabiran 2016). South Asian 3 scholars further emphasized that understanding social struggles to claim and access legal rights influenced by power, inequitable resources, and political impact becomes central to human rights practice in South Asian countries (Armaline et al. 2015). This becomes even more critical for the rights of communities with non-binary gender identities where obvious barriers such as lack of power, resources, and political influence are wrapped within rigid heteronormative norms and behaviours. It is well known that the State had not until recently made efforts to protect the interests and rights of the LGBTIQ+ people in South Asia; thus, implicitly contributing to the discrimination against them.
Recently across South Asia new legislation and administrative decisions to recognize transgender and other gender-diverse people’s identities have been introduced. The governments following various international human rights principles, laws, and reports recognized their constitutional rights and granted them equal citizenship (Jain and DasGupta 2021). In November 2013, the Bangladesh government officially recognized hijra 4 (in Urdu) as a ‘third gender’ 5 (Jain and Kartik 2020), which later in 2018 led to a separate category along with male and female categories for the question on gender on voter registration forms. In the same year, Pakistan voted the Transgender Persons (Protection of Rights) Bill into a law, which recognized non-binary people with constitutional rights (Jain and Kartik 2020). In recent years India witnessed legal and policy changes which significantly affected gender-diverse communities. The 2011 census of India added an ‘other’ category along with male and female categories to the question on gender for the first time. Although ‘other’ is nowhere near the respectful and rightful inclusion of diverse gender identities, it is a leap towards acknowledgment. In the 2021 Census, for the first time in history, the options listed under the question asking the sex of the household head will be ‘male,’ female’ and ‘transgender’ (Ministry of Home Affairs). In 2018, after decades of struggles, activism, and social movements from all fronts, the Supreme Court of India in a historic decision repealed the application of Section 377 of the Indian Penal Code, a colonial-era law that criminalized consensual homosexual activities between adults (Dutta 2020b). As Dutta stated, although this legal reform was a landmark moment heralding the progression of gender-diverse people from criminality to citizenship, we should further build on this achievement for facilitating empowerment, rights, and opportunities for people on a gender spectrum from less privileged backgrounds (Dutta 2020a). Most recently, an amended version of the Transgender Persons (Protection of Rights) Act was passed in 2019. This Act, which was previously a bill, was first formulated in 2014 and went through changes over the years (see Section 1.1 for a brief history).
Following Dutta’s appeal to build on the momentum of decriminalization of Section 377 and move towards rights-based policies and interpretation (Dutta 2020a), in this article, we focus on the critical analysis of the Transgender Persons (Protection of Rights) Act from the perspectives of a transgender community following the substantive access and practice of human rights approaches. From here onwards, we will refer to this Act as the ‘ Trans Act’ for brevity. Existing scholarships have discussed the prior and latest versions of the Trans Act, its merits, and challenges within legal and political frameworks, thus neglecting to analyse its policies from the perspectives of non-binary community members from diverse family, economic, and social backgrounds (Sayan Bhattacharya 2019; Loh 2018). In India, despite historical and cultural practices, and recent legal recognition, non-binary persons simultaneously experience hypervisibility as adbhut (in Sanskrit) or strange, and invisibility as rights-bearing citizens for decades. We argue in this article that understanding the structural/institutional mechanisms and their intersectionality, identifying the barriers, and finding feasible ways to overcome them will reduce the gap between the formulation of legal rights and actual access to rights.
In 2014, the Supreme Court of India delivered a judgment following a written petition filed by the National Legal Services Authority (NALSA). This judgment, popularly known as the NALSA judgment, was supported by prominent transgender activists like Lakshmi Narayan Tripathi. The judgment included directives for the legal recognition of people with non-binary gender identities and developed social welfare schemes such as reservations in State educational institutions and the public employment sector (Jain and Kartik 2020). A praiseworthy characteristic of this judgment was that it recognized the diversity and fluidity of gender identities unique to India’s regional, cultural practices, and linguistic diversities (Chakrapani et al. 2017) and had several positive effects on gender-diverse communities. It sets a precedent for the expansion and protection of their constitutional rights. On the heels of the NALSA judgment, came the first act for gender-diverse people’s rights.
The member of parliament (MP) Tiruchi Siva, introduced the Rights of Transgender Persons Act in 2014 (Aswani 2020). This version of the Act was developed in close collaboration with the gender-diverse communities and was passed unanimously in the Rajya Sabha (upper house of the parliament of India). The Minister for Social Justice and Empowerment (MSJE), next drafted parallel legislation in 2015 and invited comments for improvement from civil society organizations and gender-diverse groups (Semmalar 2017). However, this legislation was never introduced, and the MSJE later introduced another piece of legislation, titled the ‘Transgender Persons (Protection of Rights) Bill’ in the Lok Sabha (lower house of the parliament) in 2016. A striking failure was that this legislation was not inclusive; it did not incorporate the feedback from the community-led consultations (Government of India 2015), thereby drawing significant criticism from the LGBTIQ+ community for violating their human rights. For example, the Bill indicated that a ‘screening committee’ would have the power to declare the gender identity of a non-binary person (Sawhney and Grover 2019), which directly goes against the rights of self-declaring one’s gender identity, in violation of one’s right to dignity and bodily autonomy. The Bill’s inclusion of intersex persons within the umbrella term of transgender was also criticized, as not all intersex persons identify as transgender persons. In response to the protests for stopping the Bill from passing, the Lok Sabha set up a Standing Committee and invited several groups such as human rights and gender activists to revise it. Sampoorna Working Group (SPWG) worked with the Committee to meet the demands made by the gender-diverse groups for revisions to the Bill (Jain and Kartik 2020). On 17 December 2018, the Lok Sabha passed a revised version of the Bill with 27 amendments, including an improvement in the definition of a transgender person. In 2019, this amended Bill was declared as an Act with nine clauses and 23 subclauses. Fig. 1 summarizes the landmark events in the pathway to the 2019 Trans Act and Table 1 highlights its important clauses.