The 2014 National Legal Services Authority (NALSA) judgment was welcomed as a harbinger of much-awaited equality for all persons — especially the historically legally ignored transgender residents of India. It finally brought with it a legally backed promise of equal human rights, fundamental dignity and inclusion for all under the Indian constitution. Under NALSA, the central and state governments were to provide affirmative action, medical and social welfare (among other things), to trans persons in India. But how far have we truly come in the three years that have since elapsed?
It is 2017, surely something must have changed?
Sadly, no. Even today, very little has changed for the trans community. While the landmark Supreme Court judgment issued directives to central and state governments to institute policy changes, the central government has not issued uniform procedures or demonstrated accountability. The lack of guidelines has resulted in inconsistent implementation across states, from places such as Chandigarh creating a 14-member Transgender Welfare Board in 2017, to states such as Meghalaya, which still denies trans persons legal recognition.
Additionally, parliamentarians are not sensitized to trans issues, and this lack of political will continues to disenfranchise the very people the judgment set out to protect. Ambiguities with terminology in the judgment also creates confusions, as it is not clear if trans persons have to identify with a particular sex on the gender binary or if they can choose a third ‘other’ option and still avail equal rights.
It is important to also note that many trans folk chose not to disclose their identity due to the very real fear of violence and oppression; under this light forcing them to ‘out’ themselves to receive the benefits of NALSA is extremely dangerous. If the person chooses to document a change of sex, pervasive transphobic attitudes often continue to create bureaucratic hurdles and discrimination. For example, as per the Ministry of External Affairs, requirements for a new passport include a medical certificate and new identity documents. This ignores trans persons who either chose to forgo surgery, or more frequently cannot afford it (especially given the difficult economic circumstances of most members in the community).
The latest supplement to the NALSA judgment — the Transgender Persons (Protection Of Rights) Bill of 2016 — has proposed further invasive and discriminatory practices such as creating a screening committee to judge a person’s identity. This bill has not been passed in Parliament as yet, but clearly undermines the ideals of self-determination and autonomy promised under NALSA.
One of NALSA’s policy proponents is its directive on affirmative action. However, proposing a reservation just for employment without first providing for education shows that this bill is under-researched and impractical. Trans Indians face a strange catch-22 situation, as they are still unable to get access to the requisite education and qualifications for employment. Another confusion with this issue is that these blanket OBC reservations ignore the intersectional, hierarchical caste structure of our society and the reality of Dalit trans persons. Do the latter get double reservations? Do they have to choose one part of their identity and forgo the other? The urgent need for such clarifications again shows the lack of understanding of the multiplicity of trans lives while drafting the policy.
Have there been any positives at all?
A notably positive outcome has been the follow-through of directives from the Supreme Court in 2014 and the subsequent passing of five centrally sponsored social welfare schemes. These include schemes for financial support for parents of transgender children, and the national pension scheme for transgender persons, among others. However, these too are mired with implementation problems, mainly stemming from prejudice and a lack of awareness of rights. This, again, underscores the importance of welfare schemes to sensitize officials and reduce instances of violence and discrimination by law enforcers and police.
Despite its many issues, the NALSA judgment did depict a progressive understanding of identity and self-determination, with legal recognition of the same. Furthermore, the directive to affirmative action recognizes the institutional obstacles for trans persons in a cis-centric societal order and hopes to level the playing field.
The trans community has historically been forced to live on the margins of gendered society, and while the judgment is not without its faults, it is indeed a step forward towards trans inclusion. In lunging forward to create a more egalitarian society, it would be prudent to include more trans voices in the conversation to revise and improve the NALSA policy.
Towards these goals, Make Room India is hosting the Trans Diamond Festival this November — a 5-day long Trans Festival gathering some of the world’s most active, empowering transgender artists, activists, government representatives, and friends to celebrate diversity and unite for the rights of the transgender community worldwide. This festival aims to reach out to every individual who supports the need to bring justice and recognize the value of the trans community in India.
The author is a Research Associate (Gender Justice) at The Thought Project at Morarka Leadership Foundation — content partners to the Trans Diamond Festival. The series is a result of the ongoing effort of Make Room India and One Future Collective (Morarka Leadership Foundation) to discuss issues of the transgender community and build an ecosystem to strengthen the transgender movement.