Through the cracks of NALSA: Why legal gender self-determination remains inconsummate in India

By Shalanki Prasad (Batch of 2022)

Abstract

The fundamental rights of gender and sexual minorities in India received their overdue judicial affirmation through a series of constitutional rulings. Witness to the historic injustice perpetrated on the LGBTQ community by the criminalisation, medicalisation and denial of their identity, the transformative and counter-majoritarian approach of the SC in its construction of identity from a yardstick of constitutional morality serves as a point of genesis for potential claims to legal and civil rights. The emphasis on pluralism and inclusivity creates positive obligations on the state to protect minority interests. While these rulings fructify the rights to privacy, dignity, expression and personhood, they fall short of providing robust mechanisms for translation into workable policy. This leaves immense power in institutional structures to serve as sites for discrimination and exclusion. This article aims to examine the inherent yet minute gaps in the expansive NALSA judgement that perpetuate marginalisation and legislative violence against gender minorities through the Transgender Act of 2019 (Act). 

Introduction

Grace Banu’s open letter requesting the the President and Prime Minister to euthanize the transgender community, than have them suffer the legislative violence of the Transgender Bill reflects a hapless reality that should be impermissible in a modern constitutional democracy. The lofty claims of anti-majoritarianism, welfare and social justice seem ironic when we continue to adhere to oppressive binaries enforcing sexual repression on gender and sexual minorities (GSM) for mere institutional convenience. The NALSA judgement recognises a ‘third gender’ category, upholds the principle of self-determination and extends constitutional protections to GSM in line with India’s international obligations towards gender affirmation. The institutions and cultures that inform NALSA make it prey to legislative and executive circumvention.

1. Judicial development of gender self-determination:

The first major judicial exercise to affirm the constitutional rights of GSM was undertaken in the Naz Foundation case, which challenged the constitutional validity of §377, IPC. The Delhi HC–dismantling the core of its facial neutrality–annulled the colonial artifice for violating fundamental rights of the LGBTQ community by criminalising their sexual choices. In its innovative application of constitutional morality backed by the Yogyakarta principles, the judgement–extending the full promise of rights guaranteed under Articles 14, 15, 16 21 and 19–challenged dominant notions of identity, privacy and autonomy for stigmatised groups. Regrettably overturned in the poorly reasoned Suresh Kumar Koushal, Naz broke social taboos around sexuality, ushering in wider debates surrounding LGBTQ rights in India. The landmark NALSA judgement of 2014 was a subsequent breakthrough. It attempts to undo a historical denial of non-binary gender indentities by extending fundamental rights to equality and non-discrimination to transgender persons. The self-determination model (based on ‘innate perception of gender’) was upheld over the bio-essentialist model; and the rights to dignity, autonomy and gender expression forming the core of individual identity were reconciled–enhancing its potential to herald systemic shifts in the treatment of gender as well as sexuality by the law. Directions issued to the central and state governments mandate inclusion of the ‘third gender’ category on all government documents and extend SEBC reservations to the transgender community for realising positive obligations under Article 15(4). While broad directives were laid down, formulating them into law and policy was left to the organs of the government. Hence, it becomes incumbent to scrutinise the semantic interpretations between the lines of NALSA.

2. NALSA vs. Union of India: Critical perspectives

The judgement–a 130-page document with separate sections authored by each member of the division bench, followed by the directives signed conjointly by them–is rife with contradictions and inconsistencies leading to a haphazard application of the judgement.

1. Definitional Contradictions:

The judgement employs ‘transgender’ as an umbrella term for persons whose gender identity, expression or behaviour does not conform to their biological sex. It goes on to include prominent regional identities like hijras, kothis, aravanis, jogappas, and shiv-shaktis. In this seemingly inclusive definition, stakeholders have identified major omissions–specifically of trans-masculine identities–that lead to reductive interpretations. For example, the Madras HC in Jackuline Mary applies NALSA to only to male-to-female transgender persons, excluding a large number of beneficiaries from its ambit. The automatic classification of hijras as ‘third gender’ homogenises an umbrella identity, frustrating self-determination by precluding their right to identify as male or female. The ‘third gender’ categorisation sustains institutionalised otherisation by stereotyping the abnormality of subaltern gender experiences. The further distinction between hijra, transsexual (who seek SRS) and ‘transvestite’ (who do not seek SRS) reverts to bio-essentialist constructions of gender based on genitals and reproductive capacities. It is a feeble compromise to accommodate a multitude of diverse gender identities and expressions as third gender within a binary conception of gender. While the text later acknowledges fluidity within these categories, it is undercut by the tendency to conflate ‘transgender’ with ‘hijra’ and ‘intersex’ at multiple occasions, breeding ambiguity. The exclusion of overlapping identities through a periphrastic analysis of gender leads to reductive rulings and challenges while addressing specific needs of diverse communities on a policy level. 

The ‘offensive generalisations’, usage of derogatory terminologies rooted in caste (‘eunuch’, ‘transvestite’) along with the specific inclusion of religious communities that may not be GSM, draw accusations from the community of reinforcing hegemonic notions of ableism and casteism on gender, that also inform the judgement.

2. Contradictory approaches:

While NALSA prefers the self-determination model in principle, it proceeds to dilute the same in its operative parts. Justice Radhakrishna prefers the Argentinian model (which allows self-determination without medical screenings), then proceeds to suggest ‘psychological tests’ instead of ‘biological tests’ for gender determination, creating a redundant mind-body dichotomy and suggesting a new model of medicalised control. Justice Sikri’s insistence on ‘physical form’ further constricts self-determination by stipulating the necessity of surgical transition (SRS) for identification as (trans)male or (trans)female. This is abhorrent in context of marginalised transpersons’ abysmal access to healthcare, with botched surgeries by unlicensed doctors (often leading to death) being a sad yet prevalent reality. Reliance on the MSJE Report suggests further gravitation towards diagnosis-based models favouring bureaucratic control. Thus, despite the ambitious effort to promote a self-determination framework, shoddy stereotyping coupled with reliance on state agencies to enforce these imprecise directives leaves the rights of GSM susceptible to subversion by majoritarian state actors, and inhibits their participation in socio-political life as rights-bearing citizens.

4. Subsequent Developments

It would be remiss to exclude two cardinal developments that significantly expand the essence of NALSA. The milestone Puttaswamy judgement of 2017 ushered renewed jurisprudence on the right to privacy and bodily integrity inherent under Articles 21, 14 and 19; explicitly holding that sexual orientation constitutes an integral part of self-identity and denial of the right to form intimate relationships violates the fundamental rights of GSM. This pronouncement renewed the impetus for LGBTQ activists to overthrow the regressive Suresh Koushal, and embrace the masterwork on transformative equality, Navtej Singh Johar–an overarching promise of gender and sexual liberation under Indian law. Not only did it overturn Koushal, its eclectic application of diverse extra-legal sources for decriminalising homosexuality pioneered participatory courtroom cultures in India. Building upon the reconceptualisations in NALSA and Puttaswamy, it reaffirms the role of the judiciary as a custodian of minority rights and harbinger of transformative constitutionalism. Reading down §377 as far as sexual acts between consenting adults are concerned, it eulogises the sustained struggle of the LGBTQ, making way for ‘love’ to seep into legal reasoning in India. The trilogy of NALSA, Puttaswamy and Navtej Singh Johar heralds a far-reaching pushback against majoritarianism by the judiciary.

5. One Step Forward, Two Steps Back: The Transgender Act of 2019.

Pursuant to the directives in NALSA, legislative efforts to compile a legislation for transgender welfare began in 2014 through a series of bills that finally saw the light of day through the Act of 2019. It was greeted with roaring backlash for subverting the directives of NALSA. §7 lies at the core of its violation due to the requirement of a surgery certificate to legally recognize an individual as male or female, along with a certificate from the CMO to that effect. The further requirement for ‘identity certification’ (IC) from the DM to identify as ‘transgender’ (after a lengthy, invasive procedure that may involve medical and psychological testing) leads to a new, hierarchical form of institutionalised medicalisation. The section on non-discrimination remains formalistic, failing to provide any remedies. The Rules further diminish the scope of the Act and implicate it in cumbersome legal formalities, making its minimal protections all the more inaccessible. Vertical reservations under the OBC category are provided to transgender persons despite vehement demands for horizontal reservations. The substantive sections on residence, education, and employment are bleak and do not facilitate inclusion or mobility. Combined, the unrepresentative legislations enmesh GSM with compromised citizenship. The sections imposing lesser punishments for sexual offences against transgender persons than those under against cis-gendered women condones the systemic dehumanisation and violence they face. The Act displays a blatant endeavour by the State to bypass its obligations under Article 141 in its strong allegiance to hegemonic, majoritarian values. This tokenistic, paternalistic and cis-normative framework diminishes the struggle of transgender persons for equal and dignified citizenship.

Conclusion:

The constitutional recognition of an equal gender ‘identity’ as a prerequisite for meaningful socio-political existence is the first step towards fostering a progressive, equal and secure future. Perhaps a lesson we learn from NALSA is the need to demand reasoned and informed constitutional decisions with precise legal frameworks that are immune to legislative mischief, especially when it comes to minority rights. More importantly, it becomes crucial to dismantle our dependence on sex/gender binaries, to abolish the invasive medical model, prior to formulating ‘protective’ policies. This includes neutering various criminal, family and citizenship regulations that exclude gender-variant persons from availing civil rights to marriage, employment, property, among others. Accommodating multiple, overlapping and fluid gender identities under a ‘transgender’ or ‘third gender’ category is an  insufficient solution to an entrenched social problem. Employing consultative practices on all levels of policymaking becomes key to ensure sustainable, democratic policies. In line with international standards and with inspiration from workable models across the international community, the spirit of NALSA can become the spirit of gender-affirmative policy in India. Recent measures implemented in some states have been reassuring to an extent. The 13-member Welfare Board in Tamil Nadu with 12 transgender members is a beacon of hope, that despite the legislative setback, governments can be inclusive and participatory in their efforts to ameliorate the marginalisation of gender minorities.