India’s identification system continues to police the human-ness of transgender persons
How does it feel to constantly be at the receiving end of a gaze that oscillates between a voyeuristic fascination and disgust? Ask a transgender person, they will tell you. Expecting sympathy would be ambitious, leave alone receiving anyone’s empathy. Of course, there are exceptions but those continue to be few and far between. History has taught India to understand and view trans(gender) bodies through a limited and narrow lens – one of disgust and suspicion justifying surveillance. Yes, it is changing but at a pace that still costs many lives! Constant tracking of trans bodies with laws such as the Criminal Tribes Act of 1871, which called for the “surveillance and control of certain criminal tribes and eunuchs is now history, or is it?[i] Even with the limited language and understanding about transgender persons and their bodies, the intention was one of surveillance. Taking a cue from the buggery law of 1536, homosexuality was criminalised by the British in India with the introduction of Section 377 in the Indian Penal Code in 1861. Though the Criminal Tribes Act was repealed after the Independence, state suspicion has continued through other state specific laws like the Telangana Eunuchs Act and the Karnataka Police Act — laws that target individuals of a specific gender. These laws have been contested in the courts even as recent as 2016 and 2018 — years after the Supreme Court of India recognised the rights of an individual to self-identify their gender as male, female or transgender in the NALSA vs Union of India verdict in 2014. Subsequently, homosexuality was also decriminalised in India in the Navtej Johar vs Union of India verdict in 2018. Being transgender also has a history of being understood as a mental illness. The World Health Organisation declassified being transgender as a mental illness only in 2018. Recognition of transgender persons and their bodies has thus been historically subject to surveillance due to suspicion rooted in criminalisation and medicalisation.
Evidently, this 150+ year-old habit did not end with the Supreme Court of India recognising the rights of transgender persons. How do these rights translate in the daily lives of transgender persons? The Transgender Persons (Protection of Rights) Act 2019, a law to protect the rights of transgender persons was passed in 2019. However, the TPPR Act or Trans Act continues to demand a certificate of surgery to identify within the gender binary — continued supervision of trans bodies under the guise of validity and recognition. This need to validate the trans-ness of a body lies at the heart of the politics surrounding trans bodies. A cisgender person is not expected to provide medical validation for being cisgender. It is assumed. This process that demands a medical certificate determines the ability of transgender persons to procure a valid identification document and enter data systems to access any service or right. The demand for a medical certificate including a certificate of surgery from a transgender person to be identified as a valid person on ID documents then moves into the realm of the state determining the understanding of bodies and, in essence, the sufficiency in the humanness of an individual’s body to access ‘human’ rights.
The rules of the Trans Act were released amidst the COVID-19 pandemic. After much uproar against the mandatory demand for a certificate of gender affirmative surgery, the rules of the law now requires a medical certificate. Although the mention of a medical certificate leaves room for interpretation beyond surgery, the extent of this interpretation and the agency to interpret is dependent on the social location of the individual.
Even prior to the new law, transgender persons have been subject to horrific human rights violations, criminalisation, medicalisation and discriminations including body checks to ‘certify’ their gender identity. The marginalisation worsens with the intersectionality of other marginalised identities — caste, religion, disability.
“The screening committee used utterly inappropriate methods to make their decisions: such as touching the genitals of a trans woman to check if their male organ becomes excited. If it did, the committee did not accept the individual as a transgender. The method used for screening amounts to harassment and has no place in determining the gender identity of individuals.”
In India, changing an individual’s name (independent of their gender) on any ID document to enter data systems requires the publication of a gazette notification. However, even prior to the Trans Act, 2019, the change in name and gender on identification documents for a transgender person would include an arbitrary demand for a medical certificate to publish this gazette notification. When an individual breaks out of the patriarchal binary framing of gender, they are subject to various kinds of tests, ranging from demands for a sex reassignment surgery certificate to physical checks as proof of the trans-ness and transition.
Under these circumstances, digitisation of the identification process and integration of different data systems pose various set of challenges for transgender persons in accessing their rights including replication of the existing offline challenges.
(Data) Inclusion: A factor of privilege?
Access to rights has become synonymous with an individual’s ability to enter data systems using a digital ID. In a data-centric approach, using a digital ID depends on an individual’s ability to turn different parts of their body into data — fingerprints, iris scan. This seems to include a medical certificate for a transgender person, to qualify their sex organs in order to change their ID documents and become eligible for constitutionally sanctioned fundamental rights. This requirement has also legitimised the state’s need for constant surveillance of its people. The hyper digitisation of different public and private sector services during the COVID-19 pandemic has served to widen the access gap for transgender persons, a marginalised community with limited access to the internet.
Globally, data is the buzzword promoted as the magic solution to all problems of exclusion and marginalisation faced by all minorities. More specifically, the lack of or insufficient data on transgender persons has been cited as the reason for the lack of policy for their inclusion while the system continues to be trans-exclusionary by design. Besides, the dataset of a minority is likely to be much smaller than the majority and other larger communities (due to several reasons including the stigma and abuse faced for being transgender) — a logical flaw in a data-based approach as opposed to a rights-based approach, which requires the state to ensure access independent of the number.
This required marginalised communities like the transgender community to appropriate different digital platforms by using methods such as voice notes in order to use them.
“A lot of transgender people do not have smartphones. The small section that does own smartphones uses mostly WhatsApp as they can send voice messages and not have to text to communicate.”
The digital is a space that only those with access to the internet and understanding of the English language can navigate with a certain degree of safety. This is not the case with transgender persons. Besides, there is no guarantee of complete safety from online abuse on different social media platforms, especially for the transgender community, a marginalised population group.
Digitisation replicates offline challenges
In the name of ‘protection of rights’, the state seems to have placed more hurdles for transgender persons to change their ID documents and enter different data systems. A digital process does not solve this problem of qualifying a body as trans-enough or heteronormative enough. The inability and failure to prove oneself means that the individual cannot enter any digital system. Social factors continue to play a significant role in the ability of individuals to be out as queer bodies, digital or otherwise. The need to satisfy cisgendered persons thus continues.
Accessing any service including state sanctioned welfare, private or public sector banking, employment, healthcare and most other services would require transgender persons to have a valid ID document in their preferred name and self-identified gender. The inclusion of transgender persons is often seen as a mere addition of an additional gender category on different application forms and identification documents, both online and offline. Even the introduction of an additional gender category has not been uniform across all public and private sector services. Until 2017, PAN card did not include a third gender category and this did not allow transgender persons to link their Aadhaar card to their PAN card. Subsequently, this changed after the Supreme Court passed an order for an additional gender category. The superficial and tokenistic inclusion has also been observed by Rena Bivens in the context of continued latent binary gendering of Facebook’s user base despite introducing 56 gender options beyond the binary. Although seemingly a progressive move, Facebook’s gender data continues to “misgender users when it translates those identities into data to be stored in the database”. This gender data mismatch is further perpetuated when a Facebook login is used to access other services like e-commerce websites, travel websites, among others. Besides, any online commercial/ financial transaction would be linked to a bank account. Accessing a bank account continues to remain a challenge for transgender persons due to the lack of a valid ID document. This vicious cycle is systemic by design.
State surveillance is not limited to those dependent on the welfare system. There is rampant transphobia and queer phobia that is still prevalent on different digital platforms, especially social media platforms. With the beginning of the pandemic, India has seen a rise in state surveillance. The year 2021 has also seen a significant increase in the number of data breaches in the country. Further, different data systems including healthcare are being interlinked to automate decision making. International bodies such as the WHO and UNAIDS have established standards, emphasising the need for national legislation to address the privacy concerns related to digitising healthcare. However, there is still no privacy law in India. Both interlinking and breach of these data systems would have an exponential impact on the life of transgender persons, a population group facing many kinds of marginalisation. By making data as the prerequisite to provide access to rights, digital or otherwise, the state has attempted to forcefully normalise the demand for self-disclosure of an individual’s gender identity — a form of continued breach of transgender bodies — as a prerequisite to access their rights.
In 2021, queer and trans individuals continue to be harassed and forced by family members to undergo conversion therapy, while the Trans Act 2019 continues to create hurdles for individuals to change their identification documents in their self-identified gender. One way or another, both the state and families hope for medical professionals to wave a wand that magically transforms queer and trans bodies into heteronormative beings palatable to their sensibilities and definition of ‘normal’. This weighs negatively on the ability of individuals to exist as human (queer) beings and enter both online and offline spaces without being surveilled.
This article is written based on the findings of the study, Gendering of Development Data in India: Beyond the Binary by Brindaalakshmi.K undertaken for the Centre for Internet & Society as part of the Big Data for Development Network published in June 2020.
[i] Eunuch is a derogatory term used to describe transgender persons assigned male at birth.