In July 2016, Railway Police Force (RPF) personnel arrested three trans women (male-to-female transgender persons) at a railway station in Kolkata, West Bengal. When a transgender activist contacted the RPF official about the arrests, the official told her that they were not ‘real’ hijras, and dressed up merely to beg for money. He said he could prove they were ‘artificial’ by stripping them and revealing that they had male genitalia. The activist tried to inform him about the 2014 Supreme Court judgment on transgender rights (‘NALSA vs. Union of India’, or the NALSA judgment in short), which states that one need not undergo surgical transition to be considered transgender, but the cop said he didn’t want to get into such legalities. This tendency of distinguishing between ‘fake’ and ‘real’ hijras or trans persons based on genitals is an old one: to give just another example, back in July 2012, the Times of India reported that four ‘fake eunuchs’ had been arrested near Kanpur after being medically examined and found to be ‘men’.
The gatekeeping of transgender identity, or the policing of who qualifies as a ‘real’ transgender person by an external authority (the ‘gatekeeper’), does not merely affect gender non-conforming people. Rather, it serves to define and police the idea of gender itself. The simplest method of gatekeeping, which determines if a transgender person is ‘real’ by examining their bodies, reinforces common social ideas about gender identity being determined by genitals (sex). Thus hijra and transgender people are seen as ‘real’ only if they are born with ambiguous genitalia (i.e. intersex) or have surgically transitioned, just as femininity or masculinity are supposed to derive naturally from female or male sexual attributes (never mind that people with ‘male’ genitalia can identify and live as women, or that the very definitions of womanhood or manhood vary depending on social context, rather than deriving naturally from sex). Thus, such policing reinforces the reduction of gender to body parts for everyone, and upholds biological determinism, the idea that gender identity is determined by biological attributes.
However, beyond this crude mode of policing gender based on genitals, there are subtler ways of policing gender identity that are perhaps equally harmful, and reinforce power structures of patriarchy, caste and class. Both crude and subtle tendencies of gatekeeping transgender identity (and the idea of gender itself) seem to have intensified after the Supreme Court’s NALSA judgment, as exemplified by the Transgender Persons (Protection of Rights) Bill 2016, which decrees that people need to be certified by a ‘District Screening Committee’ to be legally recognized as transgender. While the bill has already attracted many criticisms from transgender activists (see overview here), I seek to place the bill in its larger context and demonstrate how it combines and intensifies various older methods of gatekeeping, drawing on my experiences as a researcher and community member working with a range or spectrum of trans feminine people (feminine-identified people assigned male a birth).
The NALSA Judgment and its Aftermath
The 2014 NALSA judgment radically departed from the biologically deterministic model of gender. Responding to advocacy by LGBT activists and lawyers, it affirmed the self-determination of gender identity – the right to legally claim one’s desired identity as male, female or other without having to undergo bodily transition through surgery or hormone replacement therapy (pg. 109-110). Defining ‘transgender’ broadly as all those whose gender identity differ from the gender assigned to them at birth (pg. 2), the judgment acknowledged that all transgender people may not want to transition physically. Indeed, the self-determination of gender implies that one should not have to ‘prove’ one’s gender identity to others through one’s body, appearance, or sartorial choice. However, in the period succeeding the NALSA judgment, the radical promise of self-identification seems to have prompted an anxious backlash, and intensified the gatekeeping of transgender identity by the state, the judiciary and even transgender community members themselves.
The state’s backlash against gender self-determination is most evident in the Transgender Persons (Protection of Rights) Bill 2016, introduced in the Lok Sabha on the 2nd of August. In particular, activists have criticized how the bill defines ‘transgender’ as a physical condition rather than psychological identity, describing transgender as “neither wholly female nor wholly male” or a “combination of female and male” (pg. 2). The bill clubs trans men (people who are socially assigned ‘female’ at birth but identify as men), trans women (those who are assigned ‘male’ but identify as women), and genderqueer people (people identifying outside the male-female binary), all under this definition. This reinforces the biological understanding of gender and confuses ‘transgender’ with the biomedical category of ‘intersex’ (people with genitalia that don’t fit ‘male’ or ‘female’ categories – while a few transgender persons may also be intersex, most are not). Further, no mention is made of various South Asian terms used for transgender or gender non-conforming persons, such as hijra, kothi, aravani, etc. (terms which denote a range or spectrum of feminine-identified people assigned male at birth, with distinctive communities and subcultures).
Moreover, the bill mandates a certification process for transgender identity that requires screening by district-level committees, comprising three government officials (including the Chief Medical Officer of the district), one psychiatrist, and just one transgender community member per district (pg. 3). The requirement to ‘prove’ one’s identity to a committee in order to legally change gender contradicts the right to gender self-determination promised by the NALSA judgment, and may further intensify the trend of distinguishing between ‘fake’ and ‘real’ transgender people. As the bill mandates that the certificate “shall confer rights and be a proof of recognition of his identity as a transgender person” (pg. 3), the bill may restrict access to basic rights and anti-discrimination measures for people without certificates, particularly poor and Dalit trans people who have greater difficulty in negotiating bureaucratic requirements. Further, the certification requirement must be seen in conjunction with other clauses of the bill that potentially criminalize hijra professions by declaring any attempt to lure transgender persons away from their families and ‘enticing’ them to beg as criminal offenses, without acknowledging how family oppression often forces transgender people to leave home and join hijra communities on their own (pg. 6). In this context, poor trans people engaged in hijra professions might be doubly criminalized as ‘fake’ and for ‘enticing’ their fellow community members to beg.
By defining ‘transgender’ as a third or separate gender (“neither wholly female nor male” or “both female and male”), the Bill reinforces an older pattern of legal gatekeeping wherein it is often easier for trans people to legally identify as a ‘third gender’ rather than as the so-called ‘opposite’ gender. While some trans or gender-variant persons, particularly those in the aforementioned kothi-hijra communities, do identify as a separate gender, others may identify as ‘female’ or ‘male’ irrespective of surgery. I know several trans people who have been able to change their gender to ‘other’ or ‘transgender’ on identity documents by simply filling a form and providing a self-declaration of gender through a notarized affidavit. However, people who seek to change the category from ‘male’ to ‘female’ or vice versa are often asked to provide additional documents, particularly a medical certificate of transition. Take the case of Sonia (name changed), a Kolkata-based trans woman who obtained her voter card in the ‘other’ category by simply filling a form at the local electoral office. However, when she tried to change her documents to ‘female’ after her genital reconstruction surgery, she had to go through a court magistrate as well as the gazette office, and was asked for a medical certificate for SRS (sex reassignment surgery) at both places. Her nursing home did not perform these operations openly, and thus she had to go through much difficulty to procure the certificate before her gender was legally recognized. This process directly contradicts the NALSA judgment, which states that “any insistence for SRS for declaring one’s gender is immoral and illegal” (pg. 110).
Similarly, Kritika Singh, a trans woman in Delhi, and Sam, a trans man in Kolkata, were asked for SRS certificates when they approached government officials for their name and gender change. Kritika challenged the requirement at the Delhi High Court, where her case remains under hearing, while Sam was able to eventually negotiate with a friendly gazette officer who ratified the change. Even where an SRS certificate is not demanded, authorities may require affidavits stating that one is undergoing physical transition – for example, Kanchan, a trans woman from Berhampore in West Bengal, had to produce such an affidavit before getting her gender changed to ‘female’ in her Aadhaar and voter cards. By premising gender identity on bodily transition, such requirements reinforce the conflation of gender with genitalia – besides being haphazard, locally variable, and lacking a consistent legal logic.
The medical gatekeeping of who may be transgender enough to qualify for physical transition adds another dimension to this whole process. Those transgender people who want to physically transition to varying extents have to often provide doctors with a psychiatric certification of their gender dysphoria (the feeling of incongruence with one’s socially assigned gender and associated physical attributes) to access transitional treatments, even though many kinds of cosmetic surgery for non-transgender people don’t usually require such certification. In turn, psychiatrists often expect their clients to conform to stereotypically ‘feminine’ or ‘masculine’ traits to prove themselves as trans women or men. For example, Disha, a trans- and kothi-identified person from Kolkata, was denied a gender dysphoria certificate for accessing hormone replacement therapy by a psychiatrist because she wanted to partially feminize her body, and did not fully identify as female. Disha also encountered another Kolkata-based psychiatrist, who asks his patients to perform various physical gestures to determine if their actions are ‘feminine’ enough. Psychiatrists thus often permit access to transition only if their clients conform to a very binary (male vs. female) script of gender roles. In this scenario, the inclusion of a psychiatrist in the district screening committee portends a combination and intensification of legal and medical strategies of gatekeeping.
The LGB vs. T Distinction
The bill must also be related to a recent statement by the Supreme Court in June 2016, which reinforced a legal distinction between lesbian-gay-bisexual (LGB) persons and transgender people.In response to an application from the Ministry of Social Justice and Empowerment (MSJE) that asked the Supreme Court to clarify whether LGB people were to be included within ‘transgender’, a two-judge bench dismissed the query saying that the NALSA judgment was clear that LGB people are not to be considered in the ambit of the ‘transgender’ category. Unlike the Transgender Persons Bill, this statement has not attracted much protest from transgender activists, perhaps because this seems to be a commonsensical distinction – ‘gay’, ‘lesbian’ and ‘bisexual’ are sexual orientations not gender identities; gays and lesbians are commonly defined as men who love men or women who love women, unlike transgender people who identify as a different gender than that assigned to them at birth. Indeed, some LGB people may strongly distinguish themselves from transgender people – for example, in response to stereotypes of gay effeminacy, some gay men tend to dissociate themselves from any kind of gender non-conformity.
However, sexuality and gender may also intersect or overlap in different ways – for instance, trans women may be lesbian and desire other women; similarly, trans men may be gay. Further, persons who experience same-sex desire may or may not be gender non-conforming. Those same-sex desiring people who are gender non-conforming without necessarily wanting to entirely transition to the so-called ‘opposite’ gender become particularly susceptible to identity policing through a rigid LGB vs. T distinction.
For example, recently in a northern district of Bengal, a member of the state’s Transgender Development Board asked the secretary of the local trans community organization to recommend candidates for potential recruitment as civic police personnel. The secretary named some people from the area who belong to communities known as metis or kothis, which include a range of feminine-identified persons assigned male at birth, including feminine same-sex desiring males, transgender women and people with fluid or overlapping identities. Many of the metis or kothis of this area are Dalit and extremely poor, engaged in home-based crafts production like making bamboo mats, and clearly stand to benefit from additional employment. However, the board member expressed her doubts regarding the suggested candidates: ‘Well, the kothis here are not exactly transgender like you or me’, she said, referring to how they often wore ‘male’ attire, rather than conventionally feminine clothes. Even though they face social discrimination for their gender expression, according to the board member, they were feminine ‘MSM’ (men who have sex with men) who did not really qualify as ‘transgender’.
Further, some transgender activists have seized upon the Supreme Court clarification to exclude terms like ‘genderqueer’ (signifying people outside or beyond the male-female binary) from the transgender category. For example, Reshma Prasad, a trans activist from Bihar, circulated a public post on Facebook in June 2016, saying that the Supreme Court statement would prevent LGB people from claiming to be ‘transgender’. Underneath the post, she derisively commented that “some gays claim to be genderqueer to enter the transgender category” (“Kuch gays apne aapko genderqueer bol kar transgender word me ghusna chahte hai”). For Reshma, the fluidity and overlap between ‘male’ and ‘female’ (and thus between ‘gay’ and ‘transgender’) permitted by ‘genderqueer’ makes it a questionable category.
Even if a term like ‘genderqueer’ is included, it is not a very accessible word across class and caste divides – as an Anglophone term with academic origins, it is unlikely that people like the aforementioned poor metis or kothis would comfortably claim it as an identity, or even be aware of its existence. Rather, in my experience, the metis of north Bengal often use samakami (Bengali for ‘homosexual’) simultaneously with rupantarkami (‘transgender’) to talk about themselves. Thus when a term like ‘genderqueer’ is included within ‘transgender’ but at the same time ‘LGB’ is seen as rigidly distinct from ’T’, the inclusion is tokenistic, classist and self-contradictory, and serves only elite gender non-conforming people who have the vocabulary to represent themselves ‘correctly’ to the authorities.
Beyond Gender-based Gatekeeping
Underlying a lot of community policing of the ‘transgender’ category is the anxiety that people who are not really transgender, and are more privileged than trans people, may claim welfare measures meant for transgender persons. Soon after the formation of the West Bengal Transgender Development Board in 2015, an activist in Kolkata told me, “the board will have to be careful, as homosexual men may claim to be transgender to get benefits”. Transgender activists have been justifiably suspicious of the privilege of Savarna, upper class gay men who have often dominated the Indian LGBT movement. But if the critique of elite gay privilege gets generalized into a distinction between all LGB and T people, it fosters an understanding of privilege based on gender alone. Further, such gatekeeping tends to assume a linear scale of privilege and disempowerment, where gender-based vulnerability is seen as increasing, as if in a straight line, from less to more gender non-conforming people – from people seen as ‘less trans’, such as the male-attired metis mentioned above, to those seen as ‘more trans’.
However, such an approach ignores how class and caste may intersect with gender in specific contexts to produce varying forms of disempowerment, which cannot be measured by a linear scale based only on gender. For example, working class and Dalit gender non-conforming people who appear to be feminine same-sex desiring males may be equally or more vulnerable than visibly transgender people from more privileged backgrounds. Take the case of a kothi community elder, Bikash-da, who lives in Ranaghat in the Nadia district of West Bengal, and has served as a mother-figure for the local community for over a decade. Bikash-da hails from a working class Dalit family, almost never dresses in female attire but is visibly ‘feminine’, and is simultaneously referred to as da (elder brother) and ‘mom’ by community members (including by this author). When asked to explain what she means by being kothi, she refers to herself as both ‘TG’ (transgender) and meyeli chhele (feminine male). Bikash-da’s combination of maleness and trans identification would probably disqualify her from transgender related welfare measures, even though her visible femininity and socio-economic location means that she is excluded from most mainstream occupations and depends on a local community organization for subsistence.
Thus, Bikash-da’s partial identification with maleness means something very different from elite gay masculinity, and does not add much (if any) privilege to her position. Her case is not unique – male-attired community mother-figures are not uncommon in kothi or meti circles in small-town and rural Bengal. In this scenario, a linear understanding of gender-based privilege prevents a more intersectional movement for social justice that could respond to the contextually specific ways in which class, caste, gender and sexuality interweave to produce privilege or oppression.
The way forward?
Although the Transgender Persons Bill 2016 builds upon already existing tendencies of gender policing, it represents a dangerous new development by combining legal, medical and community-based gatekeeping into the singular mechanism of the ‘District Screening Committee’ for certifying trans people. In tandem with the Supreme Court clarification, the bill prevents an intersectional understanding of identity and oppression by constructing pre-determined frameworks of identity (like a rigid LGB vs. T divide) and bureaucratic gatekeeping systems (like the screening committee) for deciding who can fall into which category, and be treated accordingly by the state. In this context, it will be up to transgender community representatives to resist being inducted into the state’s attempts to define and police identities, and dole out rights and benefits accordingly. Further, since current legal frameworks of identification are not set up to recognize intersecting or fluid identities, we have to both advocate for long-term change and negotiate with the state to nuance the application of the ‘transgender’ category according to specific contexts, so that it can address the lived realities of a wide array of gender non-conforming people. If this is a tall order, it is also perhaps our only way forward.