Trapped in a binary system, trans people denied basic rights

A welfare-based approach to transgender rights falls short of truly enabling them to progress and build sustainable livelihoods, families and futures.

On the hollow eve of 47-year-old Janasya’s* death, her closest friends, those she considered family, were forced to contend once again with statements that questioned the core of their existence and gender identities.

“Her parents kept referring to her as their 'son'. They quickly performed the funeral, before any questions arose,” says Uma P, a Bengaluru-based transgender rights activist and founder of Jeeva, an NGO. 

It was clear that Janasya’s family did not recognise Janasya’s perception of herself. Yet, without question, it was to them that the house that she had carefully saved to build in Bengaluru went. 

“For most transgender people, even if we are on good terms with our families, inheritance is out of the question. We are abandoned in our childhoods, with no education or financial resources, but we cannot return to our families hoping that we will get financial support or what is rightfully ours,” says Uma. 

Like inheritance, access to education, economic opportunity, dignity and justice have been severely impeded for generations of transgender people across India. To date, there is no accurate picture of the population of gender minorities in the country. The last census, conducted in 2011, put that number at 4.88 lakh transgender people in India, but NGOs estimate that a more accurate figure would be 4 to 5 times that.  

As a result, trans people have been living on the margins even after years of documented political and social struggle.

There was hope that the Transgender Persons (Protection of Rights) Act, 2019 (TPPRA) would be a realisation of this struggle and would bring progress in rights to self-determination, prohibit discrimination and put in place welfare measures and more importantly, obligations for both state and non-state actors. 

The material legal advancement that the 2019 Act provided was welcomed by the National Human Rights Commission (NHRC) in an advisory circulated in September this year. However, it recognised that even after the Act has been passed, “transgender persons continue to grapple with discrimination in multiple facets of life. This discrimination manifests in various forms such as employment disparities, limited access to healthcare, and exclusion from social circles.” 

Similarly, gender and sexual minorities have found the TPPRA to be severely lacking, and hardly implemented. 

Document change

A particularly sore point was the Act’s move to mandate legal gender recognition—the process by which trans people can change their documents to reflect their identity. According to Madhumitha, a Mysuru-based trans woman, this process exposed them to the red-tapism around bodily autonomy.

“I have been living and identifying as a trans woman for more than 20 years. All my identification documents—including my voter ID and Aadhar card—identify me as female,” she says. 

Madhumitha’s passport was the only pending document that needed to be updated. “I was told I needed a transgender certificate and identity card (TGID) to carry out the change. I was one of the first few from my community to apply in the Mysuru district,” she says.

After the TPPRA was brought into effect, the Ministry of Social Justice and Empowerment launched the National Portal for Transgender Persons, through which trans persons could apply to acquire an ID based on their self-perceived identity.

In reality, self-perception is not enough, as the application process also requires a self-attested affidavit declaring their gender identity, a place of residence, and a government ID. This bundle of documents is then sent for the approval of a district magistrate, who has jurisdiction over the applicant’s place of residence.

A major contention for the community has been the requirement to furnish a permanent address, which specifies that the applicant must have spent a full year of residence in the area under the magistrate’s jurisdiction.

Many trans people communicate that since government documents are not updated with self-perceived identities, they often have estranged families’ addresses. “After suffering serious abuse and hearing taunts year after year from my parents, I ran away at the age of 17. I did not have a permanent place of residence at the time,” says Mallika*, a trans woman in Bengaluru. 

Mallika’s experience with temporary and changing housing situations is unfortunately the standard for trans people across the country. A mismatch in the addresses enlisted in the ID card versus the one mentioned in the application might be cited as reasons for rejection of the TGID application, Mallika says.

Delays in processing 

Even when applications are not rejected, long delays mire the process. Within 30 days from when the magistrate receives an application, the certificate and ID are mandated to be issued, according to the TPPRA.

On the ground, this process is longer and more arduous than described. “It has been more than a year since I applied, and there is no sign of the ID card yet,” says Madhumitha.

To date, the national portal has received 18,969 applications, out of which 3,892 are pending. Close to 20% of these applications have been pending for more than 4 months, and 18% have been pending for more than a year.

Of all the states and union territories in India, Karnataka has the highest number of pending applications (43%).

An officer from the Karnataka State Women's Development Corporation provides some insight into why such delays could occur. “The national portal was launched by the Union Ministry of Social Justice. In Karnataka, the programmes for the welfare of trans people fall under the ambit of the Women and Child Development Department,” the officer says. 

This split in managing authorities means that those responsible for processing ID cards are deputy commissioners. “Deputy commissioners wait for many applications to come in and clear them maybe once a month,” the officer adds. 

Ultimately, in slow cases, “the application changes so many hands that it is easy for officers to blame each other and pass on the responsibility,” Madhumitha says. Without her ID, she has not been able to avail welfare programmes but more importantly, she has been unable to ensure that all her government documentation matches her gender identity.

Families and partnerships 

Also integral to the process of self-determination is the right to break away from bonds that enforce limiting norms of the self, families and partnerships. The recent Supreme Court ruling, which legalises marriage of transgender individuals in heterosexual relationships, does so only if the individual has identified within a gender binary—as a man or a woman. “The right to marry for people who identify as transgender, and are in the process of self-determination, is not recognised,” says Arvind Narrain, an advocate and founder member of the Alternative Law Forum. Even queer familial structures are not recognised or considered in policy. 

Mallika explains that her time at home, with her family, was torturous. “I was being shamed every day for the way that I walked, talked and lived. Everything I did was wrong,” she says. The body and the mind, in such atmospheres, are sites of recurrent violence or intrusions. 

The culmination of such a struggle is escape — which ultimately leads to the forging of new bonds that encourage and support trans people’s existence. “After I was accepted into a hijra mane, I had some measure of security, I had food and a roof over my head. I was very grateful,” she explains. 

In hijra manes or gharanas, the ‘guru’ is the guardian of transgender youths, called chelas who pay for food and shelter. In fact, according to a study sponsored by the NHRC, due to the unavailability of accommodation, around 53% of trans people live in hijra households. 

The TPPRA, recognises transgender people’s right to residence but only does so in the context of birth families. The Act states that, "every transgender person shall have a right to reside and be included in their household. If the immediate family is unable to care for the transgender person, the person may be placed in a rehabilitation centre, on the orders of a competent court.” 

The issue, according to Uma, is that the transgender person is not vested with the power to make this decision and trans familial structures are not given legal legitimacy. Instead, “it is blood relatives who are given this privilege, even when there is a lot of physical and emotional abuse involved.”

While there are many advantages to such hijra communities, Mallika explains that the power that the guru has can quickly devolve the relationship into one resembling bonded labour. “There can be increases in the cut in our income or tasks given without reason. Some heads of families can choose to target individuals as well,” she says.

Vyjayanthi Vasanta Mogli, a Hyderbad-based transgender woman and activist, explains that there is a serious need to put the house in order because of such intra-community violence. “There are enough and more issues to fix. However, instead of improving the situation, the government is choosing to further marginalise a disenfranchised community,” she says. 

Inheritance rights 

One way that the government can protect transgender persons from familial, intra-community, or societal violence is to reduce residential instability. “No one wants to rent to us. After 50, when we are unable to beg, who will take care of us? The guru-chela system at least provides this protection,” explains Mallika.

A vital component of civil rights law—property rights—still remains largely elusive to gender minorities. In fact, the Supreme Court recognised this lack in its landmark 2014 NALSA judgment. It attributed hurdles in accessing inheritance rights to being based on a binary notion of gender and difficulty in identifying successors due to the lack of marriage and adoption rights. 

For instance, the Hindu Succession Act 2005 is strictly limited to male and female heirs in its definition and order of succession. Additionally, although the definition of ‘heirs’ is more gender-neutral in the Indian Succession Act 1925,  gender-based inequality in its order of succession is still present.

Additionally, failure in the past to recognise trans partnerships, family structures and adoption has also meant that succession of property rights is under question. Kiran Nayak, a trans man with disabilities based in Bengaluru, says, “I have informally adopted a relative’s baby. My partner and I have been taking care of the baby for five years, but have no idea if we would be able to pass on our assets.” 

The NHRC advisory recognises that the trans population has historically been denied property rights. It recommends that the Union and state governments should allow transgender persons to inherit ancestral agricultural land. 

Jayna Kothari, executive director of the Centre for Law and Policy Research and senior advocate in the Supreme Court of India explains, “Most often, trans persons are forced to leave home or run away from home when they are very young. The family then cuts them out of property inheritance.” 

To access these rights, trans people have to also make the decision to spend financial resources and undertake legal effort. “They might not have the resources to fight such cases,” says Kothari. In this context, the advisory’s recommendation to enable the inheritance of agricultural land was welcome. “This should be extended to all property. They should have this legal right just as any other citizen has,” she says. 

Employment and reservations 

Employment, too, is a site of gross inequality. For instance, when the recruitment notification came that the Karnataka police forces were hiring at the tail-end of 2021, Janavi Mallesh, a trans woman, grew hopeful. The recruitment announcement came after the Karnataka High Court held a 1% horizontal reservation for transgender people in civil services posts. 

She tied up loose ends, quit her job at an NGO and dedicated five months to preparing for the exams. The recruitment process required physical examinations, “which are absolutely not designed for trans people. The tests are gendered and involve a timed run, high jump and shotput,” she says. “Many trans people who have undergone gender-affirming surgeries are in recovery for years. However, the tests do not take this into consideration,” she says. 

Nevertheless, she persevered. “I was sure that I would pass the written exam too. The cut-off was only 50 marks,” she says. When the results came, her name was not on the list. Janavi was in shock, she approached several senior police officials to find out what had happened.

“A senior official in the force told me that they intended to hire 'male' candidates. He even advised me to refrain from pursuing the job since it would mean that I would have to share accommodation in the bunker with men,” she says. 

In the past, Janavi had to rely on begging and sex work to put herself through B Com and M Com. “People judge us for begging and sex work, but society keeps us from moving on from these jobs. They are the ones who box us in,” she says. 

A study commissioned by the NHRC found that just 6% of transgender people are formally employed in either the private or non-governmental organisation (NGO) sector. About 5% are engaged in sex work and domestic labour respectively. 

To improve economic opportunity, gender minorities have been advocating for horizontal reservations—similar to the order in Karnataka — but as Janavi’s experience illustrates, there is a long way to go to ensure that trans people are able to access these opportunities and that workplaces are secure environments for trans people. 

According to the NHRC study, close to 60% of transgender individuals have never attended school. “If we expect trans people to compete and apply for civil service positions, you must start with education,” says Mogli. 

Next steps

Nayak explains that though the TPPRA has flaws on several fronts and misses out on its opportunity to fortify fundamental rights, many of its positives have not been implemented. “There is a wide variation in the pension provided by the state governments, ranging from Rs 800 in Karnataka to Rs 3,000 in Telangana. Some states have put in place transgender welfare boards, while others have not,” he says. 

The Act also obligated private establishments, educational institutions and government agencies to create inclusive environments free of discrimination. These are key for trans people to live dignified lives and enjoy their fundamental rights, Nayak adds. 

Additionally, the advisory circulated by the NHRC, although neither binding nor comprehensive, contains actionable, implementable solutions in different areas—consultative medical treatment, anti-discrimination cells at educational institutions and grievance redressal mechanisms in the workplace, says Kothari. “States should take this up in the right spirit and implement these guidelines,” she adds.

Awareness programmes matching the scale and popularity of the ‘Beti Bachao Beti Padhao’ movement could also help educate and sensitise the public about trans issues, says Mogli.

Over the years, trans activists and individuals have been growing increasingly disheartened. “It is easy to feel demotivated looking at the daily violence and slow progress. Our mentors always tell us to look at the positives, though. So, I am viewing it this way: Out of all the things we are fighting for, we are bound to see some change in our generation. This adds fuel to our fight,” says Mallika.

(*Names have been changed to protect identity)