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Self-Identification of Gender and the Constitution

"...this Court is not breaking any new ground. It is merely stating the obvious. Sometimes to see the obvious, one needs not only physical vision in the eye but also love in the heart..."

The Sociological Difference Between Sex And Gender

After 3 months of discussions, the Ministry of Social Justice and Empowerment presented a Report of the Expert Committee on the Issues relating to Transgender Persons. This report oscillates between a broad definition of transgender as an �umbrella term� for a variety of gender non-conforming identities and practices, as well as a more restricted definition based largely on hijra and trans women identities.

Trans men and trans masculine identities have not been sufficiently represented in this MSJE report. 

However what even they agreed upon was this - that the terms sex and gender cannot and should not be confused. They are separate and while sex refers to the biology, gender refers to the person�s own understanding of themselves innately. Now this understanding, put very simplistically, can vary from person to person and even change within a person over time. 

Sociologists everywhere will agree that on the following differences between sex and gender. 
  1. Although related, "sex" and "gender" are best understood as distinct concepts
  2. There are more than two sexes and more than two genders;
  3. How people identify in terms of sex or gender may not "match" how other people perceive them and lastly,
  4. Both identities and classifications can change over a person's life course.

Many contemporary gender scholars see sex and gender as distinct, though the concepts are often conflated in both academic and non-academic contexts.

Sex refers to the classification as male/female/intersex based on genitals, chromosomes, and/or hormone levels. Although this schema draws on biological criteria, research demonstrates that the specific distinctions are neither natural nor stable; our beliefs about sex have varied widely over time, differ between cultures, and tend to erase naturally occurring differences in physical development such as "intersex" people.
"Gender" typically refers to behaviors associated with membership in a sex category. However, gender is not determined by sex. The gender roles associated with each gender may or may not coincide with the sex they were labelled at birth. Thus, there is significant gender diversity within both cisgender and transgender categories. Therefore, gender determinations made by others may not align with how people see themselves.

From this definition it is clear that the importance of �self-identification� is paramount and this understanding that a person has of themselves should be respected.

The Indian View
The MSJE Report agrees with the above view but here makes a distinction in the terms gender identity and gender expression. Gender expression is external and socially perceived. Gender expression refers to all of the external characteristics and behaviors that are socially defined as either masculine or feminine, such as dress, mannerisms, speech patterns and social interactions. Whereas Identity is how the person feels about themselves.

Thus, irrespective of how their gender is perceived, their identity may not necessarily be congruent with this perception. This sounds like an unnecessary distinction but it is made with the intention of protecting those who may not necessarily be �identifying� as a transgender person but face harassment because of the perception of people around them. The term �transgender� gives an idea about the degree to which someone identifies with the sex they were assigned at birth.

For example: Transgender male, transgender female, transgender nonbinary (again an umbrella term for anything between male/female or something completely different). Thus, it is clear that the word that follows transgender is what communicates information about the way someone experiences and understands gender, as well as how they might want to be referred to.
Let us look at how the Constitution guarantees a life of dignity to a transgender person.

April 15th, 2014. This is the day the historic NALSA judgment was decided: By recognizing such Transgenders as third gender, they would be able to enjoy their human rights, to which they are largely deprived of for want of this recognition. The issue of transgender is not merely a social or medical issue but there is a need to adopt human right approach towards transgenders which may focus on functioning as an interaction between a person and their environment highlighting the role of society and changing the stigma attached to them.

On this day it was held that all the Fundamental Rights guaranteed to a person would be guaranteed to Transgender persons as well. Many want to hail this day as National Transgenders Day.

The concept of right to equality in the Constitution is prescribed under the provisions of Article 14, 15 and 16. Freedom and equality are further strengthened by the Court's observations on dignity, privacy, personhood and the free spirit of the human being, which are necessary for the human personality to flower to its fullest. Our Constitution grants us various fundamental freedoms. In theory. That�s all these freedoms have become.

When this freedom is not seen entrenched in the way we speak - in our language, this raises questions about the degree of acceptance of transgendered people in our minds.

Woman denotes gender, whereas female denotes sex.
While the judgment is one that has been lauded (see previous mention of celebrating National Transgenders Day on the day of the judgment), the Court has committed an error by confusing the basic conceptual difference between the two terms gender and sex.

An understanding of these terms is all the more important as the Court�s primary duty is dealing in the semantics of laws, rules and interpreting them in a way that is devoid of inconsistency. However, in the NALSA judgment, the court has employed the terms interchangeably.

Further, the judgment has neglected the grammatical aspect of the word �transgender� by employing it at various places as noun instead of adjective.

What this means is that the transgender must always be used as a descriptive word, that is a word preceding a noun (man/woman etc.) The term is similar to �female� and �male� and its usage as a noun is considered offensive to the people belonging to the trans-community. It reduces them to their reproductive parts and abilities which is dehumanizing and exclusionary. 
We cannot leave out the recent case of Arun Kumar v. Inspector General of Registration.

This is the first judgment in India where the right to marry under Article 21 of the constitution has been affirmed for transgender persons. It was held that �bride� under the Hindu Marriage Act would cover transgender persons who identify as women. Thus, the Court recognized the right to self-identify one�s gender.

The Trans Bill 2020

The revised Trans Bill 2020 has caused quite an uproar on account of it being labelled regressive, although subdued since voices quite literally are unable to be heard in light of the pandemic that hit the world in 2020. Besides the laughable sentence that an abuser of a trans person would suffer (i.e. 2 years, whereas the same abuse perpetrated on a woman would result in 7 years minimum), the main issue that activists and the trans community will face is the loss of the right to self determination which had been guaranteed under the NALSA judgment.

The Bill mentions the right to self identification but a district magistrate and a government doctor must determine if they medically qualify.

The Bill fails to stand the test of affirmative action as well. There is no mention of helping the trans community in the early stages of life and the reservations are simple under the OBC category. It completely fails to realize the intersectionality that a trans person may face.

For example, Someone who is a Dalit, an Adivasi, a Muslim and a transgender person would only be treated the same as a person in any one of those minorities. The term �intersectionality� emerged from a study of violence against black women in the United States. It was found that combatting racism was a black man�s problem and similarly, sexism, a white woman�s problem. Thus, black women had been rendered invisible.

It is in this scenario that the formulation of an intersectionalist approach for understanding the inequalities in the power system of India is highly significant. Caste, class, gender and language all need to be addressed separately as well as in conjunction. An understanding of the linkages between these factors is therefore imperative in the application of Article 14, 15, 19 and 21 in practice.


How can language change to help bring about an inclusivist society?

When something as fundamental to human existence - the art of communication through language itself changes to become non-binary, we will be able to see change in the mindsets of people. Of course this will be a slow process but one that needs to begin now. This rather �radical� change, that is the power of Language in changing mindsets at the root of the issue. 
To illustrate, pay close attention to the next sentence and you will find that something subtle yet very apparent stands out. The women and men were seated at the President�s table as she held out her hands as a sign of welcome.

On reading this, the first thing that jumps out at you is the order of the words women and men. It is not common that in such a context you would be likely to see it phrased in that way and secondly, one probably would assume that the President is not the one whose hands were held out as a sign of welcome. There is a simple reason for this - a woman could not possibly be the President. This is called an unconscious bias and every one of us faces this.

This example was to simply illustrate the power of language in the changing of our mindsets. When institutions like the legislature and the judiciary themselves do not correctly use the terms that will propagate an inclusive mindset, then we must ask ourselves how we expect the Fundamental freedoms and right to live with dignity that is enshrined in our Constitution to find a place in the lives of transgendered persons. Trans linguistics is committed to social and linguistic justice for gender non-normative communities.

  • Simone De Beauvoir, The Second Sex, (Vintage Books, Print 1989).
  • Daniel Miller, Gender, How The World Changed Social Media 114�127 (Ucl Press, London, 2016).
  • Kimberl� Crenshaw Williams, Mapping The Margins: Intersectionality, Identity Politics, And Violence Against Women Of Color, The Public Nature of Private Violence, 93-118 (Routledge, 1994).
  • Anne Hammarstr�m & Klara Annandale (2014). Central Gender Theoretical Concepts in Health Research, JECH  10.1136/jech-2013-202572 185-190
  • Laurel Westbrook & Kristen Schilt, Doing Gender, Determining Gender: Transgender People, Gender Panics, and the Maintenance of the Sex/Gender/Sexuality System, 28 Gender and Society, 32�57 (2014). 
  • Lal Zimman, Transgender Language, Transgender Moment: Toward a Trans Linguistics, The Oxford Handbook of Language and Sexuality, (2020).
  • Ministry of Social Justice and Empowerment, Report of the Expert Committee on the Issues relating to Transgender Persons, 27-1-2014
  • Indian Supreme Court Recognises Right to Self-Identify as Third Gender, THE EQUAL RIGHTS TRUST, (Feb 14th 8:43AM)
  • Gender Definitions, World health Organisation, Regional Office for Europe, (last visited on April 16t, 202l).
  • Mikkola, Mari, Feminist Perspectives on Sex and Gender, The Stanford Encyclopedia of Philosophy (Fall 2019 Edition), Edward N. Zalta (ed.), (last visited on April 16th, 2021)
  • Human Law Rights Network, People�s Inquiry into the status of the implementation of the NALSA judgment (November 2016), (Last visited on April 16th, 2021).
  • International Society for Sexual Medicine, Sexual Health Q & A - What is the difference between transsexual and transgender?, (last visited 16th April, 2021).

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