Centre’s report fuels gender identity debate
Govt aims to protect third genders’ rights but recent parliamentary panel report alternates between psychological and biological definition of being transgender
NEWDELHI: The Central government wants to give transgender people money for sex reassignment surgery. It wants to protect their right to live at home with their families. It wants to outlaw each of the particular forms of discrimination, abuse, and coercion that they face.
But there’s a catch: the whole system, if passed into law, would apply only to people who have a new transgender ID card. And the government, which is deciding how to distribute the IDs, might not understand what being transgender means.
A debate about the most basic elements of gender identity is not getting resolved even as the Transgender Persons (Protection of Rights) Bill moves closer to passage. The most recent stage of its progress, a parliamentary report issued on July 22, revealed a state of confusion. The report alternated between a psychological and a biological definition of being transgender.
The issues are abstract, but the consequences will be real. What the government ultimately decides will change the daily lives of transgender people across India — and maybe not for the better.
MEN OF INFLUENCE
According to the chairman of the committee that produced the report, BJP MP Ramesh Bais, the proposed law is a first step toward changing popular attitudes about transgender people. “We are talking here about giving transgender people legal recognition,” he said. “They remain isolated, so to merge them with the mainstream, we got this bill.”
Before he began work on the report, said Bais, “I never realised that this was such a big issue”. His committee needed expertise. The most influential advisor may have been Dr Piyush Saxena, who is the founder of an organisation called Salvation of Oppressed Eunuchs.
Saxena has written a book and produced a movie about transgender life in India. Professionally, he is a senior vice- president of Reliance Industries. Saxena’s website also describes him as a “wellness counsellor”, “cleansing therapist”, poet, painter, and magician.
Saxena said he has had sway with policymaking about transgender issues for years: “Whatever I have suggested, it has been accepted in toto.” In an interview, Bais attributed some of his claims about the experiences of transgender people to Saxena personally.
BODIES OR MINDS?
Yet many beliefs of this independent researcher run counter to those of transgender people and specialists in the field.
Authorities have widely agreed, for example, that being transgender is a psychological phenomenon. According to the World Professional Association for Transgender Health, it is not abnormal for people to feel their gender identity is different from their assigned sex at birth.
In a 2014 ruling, National Legal Services Authority (NALSA) v. Union of India, the Supreme Court adopted this psychological understanding. It defined transgender people as those “whose gender identity, gender expression or behaviour does not conform to their biological sex.”
Bittu Karthik, an associate professor of biology and psychology at Ashoka University who organised committee depositions from fellow transgender people, described being transgender as a characteristic that is “innately self-identified. It is not something that another person can decide.” Saxena, on the other hand, posited a variety of essential biological traits: “Erection is one thing they never have. This is the fundamental difference between a gay and a transgender. They don’t have erections, they have a masculine body, and they want penetration to be done by their male boyfriend.”
For people born with female bodies who later identify as men, Saxena also had a biological explanation: that they have an “enlarged clitoris”.
Bais also seemed convinced that gender was determined by bodies. He said that transgender people have an irregu- lar composition of hormones, so that, for example, male-bodied people who later identify as women start growing breasts around the age of 10.
Told of these claims, Karthik replied that there is no scientific evidence of a link between hormones or clitoral size and transgender identity; that some transgender women do have erections; and that not all of them necessarily want to have body-altering surgery.
GAINING BENEFITS, LOSING RIGHTS
These conflicting positions will determine who the legislation benefits and who it excludes.
As it stands, the bill defines a transgender person as someone who is “neither wholly female nor wholly male” or “neither female nor male” or “a combination of female and male”.
To obtain an ID, the bill proposes that applicants must go through a screening process. Those administering the tests will include a “medical officer” and a “psychologist or psychiatrist”.
The apparent reference in the definition to genitalia and the presence of doctors in the screening panels both contradict the psychological view of gender.
The report criticises these measures on scientific and legal grounds. It says that the definition’s reliance on physical characteristics “violates the fundamental rights to equality, dignity, autonomy but also freedom of transgender persons guaranteed under Articles 14, 19, and 21 of the Constitution”.
Tests of medical eligibility, meanwhile, “violate the right of transgender persons’ under the Supreme Court judgement and international human rights law and standards - to have their self-identified gender recognized”.
Yet the report ultimately defends both proposals. It accedes to the government’s argument that using psychological criteria and omitting doctors would each create a threat of “misuse” of the IDs.
In effect, the report advocates using a definition of “transgender” that it describes as violating “fundamental rights”.
A QUESTION OF POWER
If anything is clear from the many voices speaking through the Lok Sabha report, it is that Parliament stands ready to be influenced. “If transgender people feel that certain improvements need to be made in the bill once it is passed, that can be incorporated by taking the amendment route,” said Bais. “The bill is meant for their betterment, not to upset them.”
More readings and votes in both the lower and upper house still await the Transgender Persons Bill. The government is listening — the question is, who is it listening to?