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BETWIXT AND BETWEEN

Last month Madhuri Kinnar’s nomination papers for the Bhubaneshwar municipal elections were declared invalid. Reason? Kinnar is a transgender and the authorities contended that she was contesting from a seat reserved for women even though her voter’s ID card showed “others” in the gender category.

Such acts of confusion and injustice may soon become a thing of the past if India’s transgender community, traditionally society’s nowhere people, comes to have a legally recognised gender identity. In response to several petitions to grant transgenders a legal status on a par with males and females, the government has recommended that they be allowed to carry either a “gender identity certificate” in the gender of their choice or an identity card endorsing their status as a transgender.

These recommendations were made by a “special task force” of the ministry of social justice and empowerment to solve the long-standing grievances of the community. The task force was set up three months ago after the National Legal Services Authority (Nalsa) and some other NGOs filed PILs in the Supreme Court and the Mumbai High Court last year to recognise and grant transgenders a “legal identity”.

Noting that the Nalsa petition “seeks equal protection and rights to transgenders as available to males and females in this country”, the Supreme Court observed: “The question involved is of considerable public importance which calls for an authoritative pronouncement and will have far reaching consequences for the transgender community.”

The report of the task force is due in the Supreme Court this month and the case is reserved for judgment, says Laya Medhini, director, Center for Legal Aid and Rights (CLAR), New Delhi. CLAR was one of the prime movers of the petition before the Supreme Court.

In written submissions to the Supreme Court, CLAR and other NGOs wrote: “The lack of a coherent and uniform approach to accept the transgender persons’ identity has made them virtually invisible to state agencies.” The Constitution of India is “sex blind” and cannot take away people’s rights on the ground that they do not fall under the rubric of the male or female sex, asserts Medhini.

Justice Prabha Sridevan, a retired judge of the Madras High Court, agrees. “Like any other citizen, transgenders are entitled to the rights enshrined in the Constitution. I believe the court has to give a favourable verdict,” says the former judge, who participated in a “public hearing” for transgenders recently.

“Sometimes, transgenders want to be recognised in the gender they think they are even without changing their sex. They are entitled to the identity they wish for themselves,” she adds.

The government’s recommendation does take this point into account. According to it, gender identity certificates will be provided by a government authority that will establish a national transgender board or committee. The committee, comprising medical professionals, among others, will evaluate transgenders before giving them the certificate. Transgender persons could either get a medical certificate after undergoing a sex reassignment surgery to change their sex. Or they could simply self-endorse their own gender identity.

Some countries have truly progressive laws for transgenders. For example, in 2012 Argentina allowed them to change their names and sex on official documents, including birth certificates, without getting an approval from a judge or a doctor. According to Article 2 of the Argentina Gender Identity Law, “Gender identity is understood as the internal and individual way in which gender is perceived by persons, that can correspond or not to the gender assigned at birth...”

In Britain, transgenders are allowed to change their name and sex only after a doctor ascertains that they are going through gender dysphoria, (or gender confusion), a condition in which individuals feel trapped in the body of the wrong sex.

In India, Tamil Nadu is the only state that has a transgender welfare board. They can present their case before the board after which it issues an identity card to them. The ID card entitles them to change their name, open a bank account, acquire a ration card, and access social benefits.

However, activists say, the board is currently languishing without a chairman and is well nigh inactive.

Indeed, there is an urgent need for a unified set of legal rights for transgenders as there is no clarity on their legal status. And to add to the confusion, different states have different schemes for them.

In Maharashtra, for example, the Women’s State Policy also includes issues faced by transgenders. The state also plans to set up a welfare board for them, says Ernest Noronha, programme officer at the United Nations Development Programme (UNDP), and yet another petitioner.

Of course, the Aadhaar card does feature a “T”, or a third column under gender, while the voter’s ID card also gives them the option to tick “others”. Even so, their rights often slip through the cracks in the law. As happened in the case of Bhubaneswar’s Madhuri Kinnar.

Says Meera Kinnar, president, All Odisha Kinnar Mahasangh, “If we have been given the right to vote in the ‘others’ category, why can’t we stand for elections from any ward? Why should they stop us from contesting from a ‘reserved for women’ ward? There is no clarity on the issue and no government official or minister is willing to clear the air on this.”

The problem, says Venkatesh Chakrapani of the Centre for Sexuality and Health Research and Policy, Chennai, is that our laws recognise sex and not gender. “A voter’s ID card is an identification document and does not provide them any legal rights,” says Chakrapani, who has co-authored a paper for the UNDP analysing the legal rights of transgenders.

Other injustices abound. Last year, shelter homes in the capital refused to admit a transgender rescued from the streets. “We could not find her a home because she was a transgender and HIV positive. Ultimately, she lost her life,” says Ambalika Roy, a lawyer at CLAR, pointing out that transgenders can access shelter homes once the government recognises their legal status.

Transgender Priya Babu, who filed a writ in a Tamil Nadu court in 2004, asking for her right to vote, says that giving them a legal identity along with the attendant rights and privileges will be the key to solving their problems.

“We cannot go anywhere without being heckled or harassed. There is no eve-teasing law for us, and rapes of transgenders are not even registered,” she says.

A clearly defined legal status for transgenders on a par with males and females could change that environment of hostility and injustice.