Almost five years after the enactment of the Transgender Persons (Protection of Rights) Act 2019 [henceforth, Trans Act], the confusion about the understanding of who a transgender person is, continues. This often results in individuals facing rights and welfare exclusions. Based on my research study, Gendering of Development Data in India: Post-Trans Act 2019 (2023), and my ongoing community work, in this article, I will look at some of the ways (legal definition, digitisation, multiplicity of IDs, among others) in which the Trans Act reiterates the wrong notion of who a transgender person is, reshaping the understanding of (trans)gender. Rectifying this confusion is critical in a state like India where the access to state welfare and entitlements has been digitised and is dependent on individuals being present in different datasets using identification documents with self-identified name and gender.
The legal definition of transgender and associated challenges:
The Trans Act defines transgender as,
(k) “transgender person” means a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta.
The Rules of the Trans Act, contradictory to the above definition, define a two-step digital process to change one’s name and gender on identification documents. In the first step, individuals are expected to submit an application for name and gender change on the National Transgender Portal. On approval of the application, a certificate of identity is issued to the applicant with gender marker as transgender. The second step requires individuals identifying within the gender binary of man or woman to submit a medical certificate of some kind (surgery, hormone therapy or even a certificate from a mental health professional) in order to self-identify their gender. This difference between the law and the rules has contributed to government officials incharge of social schemes and entitlements further blurring the understanding of an ‘eligible’ transgender person. “Many government officials expect transgender persons to change their gender marker to ‘transgender’ and not identify within the binary of man or woman (allowable under Section 7 of the Trans Act) if they intend to access schemes and entitlements,” notes Dr. L. Ramakrishnan, Vice President, SAATHII. This shrinks the space for transgender persons to self-identify their gender along with a silent need to conform to and perform being transgender in a specific manner.
Conflation of gender and sex characteristics:
Currently, the Trans Act’s definition also includes persons with intersex variations, although the law does not include any specific provisions to address their needs. It is important to understand the distinction between gender, sex and sex characteristics in order to understand the problems with categorising intersex persons under transgender. Many intersex persons that I interviewed for my study feel that despite knowing their intersex status, the Indian state forcefully expects them to identify their gender as transgender while many of them do not identify as being transgender. Many intersex persons identify themselves as a man or woman with an intersex variation, often identifying with the gender assigned to them at birth. The forceful identification as transgender goes against intersex persons’ right to self-identify their gender. This further invisibilises intersex persons and their specific medical needs and requirements while also misrepresenting transgender persons and the understanding of being transgender. Presently, there are 40 known intersex variations[1]. The conflation of gender identity (transgender), which is a social role, and sex, which is a biological identity, continues to misrepresent both these groups within datasets impacting the policy decisions taken for their welfare.
(In)Efficiency of using a digital process for a historically marginalised population:
According to a report by the National Human Rights Commission, nearly 50% of transgender persons have not completed Class X. Introducing a digital process to change the name and gender for such a historically marginalised community points to a lack of foresight regarding the implementation challenges that may arise. Apart from the lack of literacy and digital literacy among transgender persons, the respondents of my study note that in most parts of the country, individuals seeking to change their name and gender process have needed additional support to fill out the application form from community based organisations working with the transgender community. It is tougher for those without community connections. Although the National Transgender Portal states that the applications are required to be approved within 30 days of receipt, individuals continue to face inordinate delays in the approval of their applications. Individuals are often forced to follow-up in person to understand the reason for the delay in approving their applications and ensuring that the issue is resolved. This further subjects individuals to discrimination and stigma for being transgender.
Many government officials continue to remain insensitive about the different transgender identities. Due to the historical presence of trans feminine identities like hijra, kinner, jogta, among others, often trans men are not understood as being transgender and several of their applications have been previously rejected. Similarly, trans women are often expected to be performative in their gender expression. Transgender persons in many states have been subject to inhuman physical checks to ensure that they are ‘authentically’ transgender although the Trans Act prohibits this. Thus a digital process has not eliminated the existing challenges for the transgender community. In many cases, it has made it harder for transgender persons to enter state data systems with a valid identification document. The continued delay in changing one’s name and gender, also means that individuals do not enter the state systems in their self-identified name and gender. Hence the data continues to misrepresent the realities of transgender persons, reiterating the existing confusion about transgender individuals. Thus along with the legal definition, digitisation has widened the access gap for transgender persons in the country.
Other implementational challenges and consequent data misrepresentation:
The ordeal with the name and gender change does not end with the National Transgender Portal. Individuals are often forced to repeatedly approach government officials to change their name and gender on other identification documents like Aadhaar, ration card, voter ID, PAN card, among others. In the case of Tamil Nadu, individuals are expected to undertake a separate legal name and gender change process, often for a second time [first time on the National Transgender Portal], using Tamil Nadu’s Thirunangai app in order to change documents (particularly school and college certificates) issued in the state. This process is different from the one on the National Transgender Portal. During my recent trips to Karnataka in 2024, in more than one instance, trans men from Tamil Nadu now living in Karnataka, shared this process (unique to Tamil Nadu) as being a challenge in terms of changing their educational certificates. In addition to the delays in changing documents and inconsistency of information in different documents, the double name change process has also led to these individuals entering the transgender datasets of both Karnataka and Tamil Nadu.
Further, the Thirunangai app includes a third gender category for individuals to self-identify as intersex. While the additional option is a step forward in recognising persons with intersex variations, it continues to be subsumed under the transgender umbrella and does not distinctly recognise their rights or needs. Further, this additional category on Tamil Nadu’s app will also create a data mismatch with the data collected by the National Transgender Portal. However, such data mismatch is not limited to the Thirunangai app.
The Trans Act requires individuals to submit an existing identity document in their given name and assigned gender. Many transgender persons often run away from home due to familial abuse and hence do not often possess an existing document. The mandatory linking of Aadhaar to access all state welfare schemes requires the name and gender to match on all documents. Owing to the need for an existing document along with a digital process and the different challenges involved, individuals change their name and gender only on documents that are easy to change.
Thus individuals whose documents remain unchanged, do not enter different datasets and continue to remain excluded and different datasets continue to misrepresent transgender realities.
With increased digitisation and automation of the welfare administration in India, it is necessary for individuals to be part of different datasets to become eligible for different state welfare schemes and entitlements. Entering datasets only ensures eligibility and not access. Presently, the Trans Act with its myriad of issues, in its current form seems to be a law for the sake of a law, one that may have provided a process to change name and gender for transgender persons, a historical silenced and invisibilised population group, however, done without adequate thought and foresight. This continues to keep transgender persons at the margins and stigmatised. The gatekeeping of the different categories of individuals who can enter different datasets as transgender, and the continued inability of so many to enter different administrative datasets could consequently lead to the civil death of transgender individuals. This has the potential to further reshape the understanding of transgender as a gender category by machines and artificial intelligence used to make different welfare and development decisions. With automation, this could, over time, lead to the erasure of a whole gender category of people. It is critical to address the latent ongoing erasure of transgender persons that is being administered by a law meant to protect the rights of these individuals.
Note: Gendering of Development Data: Post-Trans Act 2019 (2023) is a research study undertaken for the Association for Progressive Communications as part of the Our Voices Our Futures project.
[1] Carpenter M. Intersex Variations, human rights, and the International Classification of Diseases. Health Hum Rights.2018;20:205-214
Cover Image: Photo by Mika Baumeister on Unsplash
