Immanuel Kant in his seminal work The Metaphysical Elements of Justice defines law as the “set of conditions under which the choices of each person can be united with the choices of others under a universal law of freedom.”
The concepts of law, autonomy and self-determination are intricately interwoven and give expression to the idea that we can lead our lives rather than suffer them. The very conception of an individual as a thinking being proves one’s transcendental freedom.
The intertwined nature of law and freedom engenders the idea that the right to gender self-determination of individuals must be vindicated. This right has been recognised as an indispensable element of the right to life by the Supreme Court in National Legal Services Authority (Nalsa) v Union of India, which sought to consolidate this idea through its unconventional jurisprudential interpretation of the rights enshrined under Articles 14, 19 and 21 with respect to sex stereotyping and gender self-determination.
Notwithstanding the nullification of medico-legal binary understandings of sex, gender and sexuality as well as a particular interrelationship of that constellation by Nalsa, the Union government recently notified the Transgender Persons (Protection of Rights) Act 2019.
Camouflaged by its progressive semantic manipulations, the primary aim of the legislation appears to be reassurance rather than redressal, prevention or punishment. The modus operandi or functioning of the government in the passage of this legislation was opposite to what's expected of a democratic government in that it adopted a hasty approach and was not heedful of the voices, demands and needs of the community it was framing it for.
The Act, which purportedly serves as the building block for structural and social transformation, suffers from the vice of inadequate representation of the transgender persons. The under-representation of opinions of transgender persons in the enactment of a law which seeks to ensure the protection of rights of transgender persons and their welfare raises pertinent questions of constitutional, moral and democratic propriety.
It then doesn’t come as a surprise that the transgender community has been vehemently protesting against this law as their experiences have not been duly considered by the framers of the law. This reflects in the provisions of the Act which failed to extend protection to or recognise the autonomy of transgender bodies.
The Act goes against one of the most significant directives in the Nalsa judgement which conferred upon the transgender persons the right to determine their self-identified gender. It bristles with several ambiguities and contradictory tendencies and the hostile and unaccommodating nature of doctrinal infrastructure under the Act assigns a disentitled and detrimental position to the transgender persons.
One of the sections in the Act stipulates that a transgender person needs to make an application to the District Magistrate for issuing a certificate of identity as a transgender person. This itself would mean that nothing can be done except under the watchful eye of a hostile bureaucracy where they get fully enmeshed in a dehumanising nexus of forms and procedure.
The more worrisome flaw in the Act is a careless treatment of one of the complex issues, specific to the transgender communities in India that the cisnormative hypermasculine system fails to grasp, is the disapproval of a significant proportion of these individuals to reside with their bloodline biological relatives due to abusive treatment and vituperative attacks on their bodily autonomy within the institution of family.
The Act leaves these individuals with no remedy in such instances as it prohibits the separation of transgender persons from their immediate families. It is also important to note that the Act adopts a language of rehabilitation rather than a language of the right.
The issue of reservation in employment and education, another directive by the Supreme Court, has been clearly avoided. The elimination of the collectivisation of the community through eccentric proposals and a forced performance into socialising as what they do not raise serious concerns of safety, security, identification and rights.
Legal discourse
In light of the conferment of rights upon transgender persons in the Nalsa judgement, a discursive revisioning of the legal discourse which maintained their status as ‘social outlaws’, was also imperative. The incoherence of this purportedly progressive Act is apparent the moment one imagines a transgender person within the paradigm of existing legal discourse.
The Act utterly fails at eradicating the institutionalised discrimination and Orwellian rhetoric in a wide range of legal statutes and adjudicative processes. These laws operate to deny transgender bodies their entitlement to legal protection by stripping their humanity through what Butler characterises as ‘felicitous self-naturalisation’.
The legal institutionalisation of violence and discrimination gives rise to a repressive discourse on transgender bodies. Currently, several criminal and civil laws recognise only two categories of gender: man and woman.
Although the Nalsa judgement demolished medico-legal binary understandings of sex, gender and sexuality as well as a particular interrelationship of that constellation, the law still acts in the service of a self-affirming idea of the binary logic of gender. At the systemic level, the law makes identity of a transgender so impossible and invisible as to be outside of the governing domain of the law.
A considerable part of our daily interactions has rested on the premise that the transgender community has no legal recognition or existence, and the existing laws legitimised a similar form of discrimination.
Although this should have been reversed by Parliament in the light of growing consciousness and express directives of the Supreme Court, the Act appears to be a political instrument for appeasing the members of the community as it takes no concrete measure to eliminate the perilous condition the current state of the law creates for transgender persons.
(The writers are students of National Law School of India University, Bengaluru)