Rights of gender and sexual minorities in the age of datafication

Two steps forward and ten steps backward — the standard pace of the dangerous game of snake and ladder played by India’s judiciary, legislative and executive with understanding the rights  of gender and sexual minorities (GSM)[i]. Another move made and India’s civil society and GSM community would continue to slide down the tail’s end, hoping to climb up yet another ladder again, may be one more time. And the playing field often tends to be India’s British colonial legacy — now even in the digital world! 

Under the garb of Indian culture, independent India and the British colonial laws with their Victorian notions of morality continue to remain strange bedfellows. Patriarchy and the state’s need to control all bodies tend to indiscriminately bare its fangs to police and curtail gender minorities at their own convenience. Such an ecosystem often favours the rich and mighty as seen in the acquittal of journalist Tarun Tejpal, editor of English magazine Tehelka, in a rape case filed against him by his former employee. The Goa sessions court that pronounced this verdict had digitally stripped the sexual assault survivor to further harass and meticulously question her morality across 527 pages. By digitally stripping the survivor of a sexual crime, the court automatically turned the individual into a data body tracing her steps through the digital world to question her morality based on an image constructed from her digital life and activities. The verdict thus acquitted the accused, a well known journalist. Unfortunately, this case is no exception.

The state and its laws, more frequently, also control non-gender conforming bodies with laws and policies in the name of protection — the Transgender Persons (Protection of Rights) Act, 2019. This law was passed to supposedly protect the rights of transgender persons in India. However, this law has several problematic provisions including the demand for a medical certificate to certify a transgender person’s body in order to change their name and gender on their identification documents.

The law also provides for a digital process to change ID documents. This could help individuals avoid the prejudices experienced while facing a government official. However, the new trans law continues to strip the body of a transgender person to qualify the trans-ness with a medical certificate even with a digital process. Digital or otherwise, the demand for a medical certificate only from transgender persons to validate their gender goes against the right to equality enshrined in the Constitution of India. Cisgendered persons are not ever required to prove their gender identity in such an intrusive manner. Digitising this process seems to be a mere attempt to turn trans(gender) persons into data bodies. Digital in Digital India does not always mean ease! The state decides whose life is worthy of ease and is allowed to be easy. 

Understanding of a body, gender and the politics of it all

With or without digitisation, it is the politics of the body that sits at the heart of it all. A closer look reveals the relationship between body politics and the perceived understanding of gender. What makes a woman, a woman? Who is a real man? How is a transgender person supposed to look, sound or behave? In one way or another, all these questions connect back to our bodies and how gender is expected to play out through our body with or without our agency.

To begin with, the binary understanding of gender and bodies often disregards the autonomy and dignity of individuals whose body is outside binary sexes — intersex persons — and individuals who identify with a gender beyond the binary — transgender+ persons. This conflation of understanding bodies has been observed even in the census of 2011 that for the first time attempted to enumerate transgender persons under the Others gender category. Although the thought behind this effort is commendable, the effectiveness of the exercise is questionable. My research shows that the census and its enumerators did not have a clear understanding about the distinction between sex and gender or the persons to be enumerated under the Others category. Neither was there any clarity in the understanding about transgender and intersex identities. Apart from the erroneous data, which has impacted the rights access of transgender persons, the census has also contributed to the silent erasure of intersex persons. It was only in 2014 that the Supreme Court of India recognised the right of every individual to self-identify their gender as male, female or transgender in the NALSA Vs Union of India verdict while in 2018, the court decriminalised homosexuality by reading down Section 377 in the Indian Penal Code — two steps forward. Subsequently, the Transgender Persons (Protection of Rights) Act was passed in 2019. However, as mentioned earlier, the demand for a medical certificate to prove one’s gender impacts an individual's agency and autonomy in self-identifying their gender. Further, although the new law mentions intersex in its definition — two steps forward, the law includes it in the definition of transgender and also has no specific provisions to address the challenges faced by intersex persons, leading to further erasure of their rights — ten steps backward! 

The state’s moralistic gaze has never spared those beyond the confines of its heteronormative social framework, not just in understanding our bodies and gender but the state also historically determined the sexuality of our bodies. Section 377 of the Indian Penal Code criminalised any ‘carnal intercourse against the order of nature with any man, woman or animal’. It criminalised homosexuality, any sexual activity other than peno-vaginal intercourse. Although the law included woman or animal, by using the word ‘intercourse,’ the imagination of this legal framing limited the understanding of homosexuality to penetrative sex between two individuals with a penis (mostly understood to be a cis man) and sodomy. This limited understanding left no room for sexual experiences taking into account the individual agency of every person in understanding and experiencing their bodies or pleasure. British colonial law considered cis women to be the property of cis men, either by birth (father) or marriage (husband). This British law suited Indian cultural framework in another era! The deviance of a cis man by having sex with another cis man then lowered his stature to that of a cis woman and this deserved punishment! Patriarchy is no friend of cis men either. Two steps forward: The Supreme Court of India decriminalised homosexuality in 2018 and ten steps backward: The discrimination continues. In June 2021, a verdict by  Justice Anand Venkatesh of the Madras High Court detailed out guidelines to address the continued discriminations against the LGBTIQA+ community including removal of the medicalised heteronormative gaze in textbooks for students of medicine — two steps forward again. 

Replication of offline experiences in the digital world

The discrimination continues even in the digital world and with the use of technology. Inherently, digital technology is a tool of privilege. Anyone with the access to the Internet, an understanding of it and the ability to use it, is privileged. In many parts of the country, especially in rural India, due to cultural reasons, gender minorities have the least amount access to the Internet and smart devices, solely because of their gender. In 2016, young unmarried women in the states of Uttar Pradesh, Bihar and Gujarat were banned from owning a mobile phone because different village counsels deemed “technology to be a nuisance particularly for females". Further, married women in Gujarat even faced a fine of Rs.2,100 for breaking the rule. The level of education and digital literacy thus continues to remain low among gender minorities in the country. The recent National Family Health Survey-5 (NFHS-5)[ii] released by the Government of India shows that the percentage of women who have ever used the Internet in India is only 33.3 (as opposed to 57.1 per cent among men). Just 51.8 per cent among urban women (as opposed to 72.5 per cent among urban men) have ever used the Internet; in case of rural women, the percentage slides to only 24.6 (as opposed to 48.7 per cent among rural men). It is worth noting that this survey does not include information on individuals who identify beyond the binary genders of male and female. These numbers seem to be a reflection of the patriarchal values that continue to impact the access to mobile phones, the Internet and essential information — for gender minorities.

Further, the paternalistic morality of patriarchy uses the garb of safety and protection, to decide who gets access to the Internet while also monitoring physical movement with constant surveillance of specific bodies based on their gender. No significant efforts are made to change the behaviour and attitude of cis men towards women (both cis and trans). Instead, the state has always chosen to control the bodies of gender and sexual minorities, turning them into data to keep tab of their movements in the name of safety and protection. Surveillance systems turn the bodies of gender minorities into data using CCTV cameras and safety apps — without substantiating their claims of safety and protection. Besides, all these developments have happened without a data protection law or any legal framework for protection against any data violations that anyone may face. Two steps forward: the Supreme Court of India in 2018 struck down another 150-year-old archaic adultery law — Section 497 of the Indian Penal Code, which persecuted a man for adultery while women remain outside the purview of this law because a woman is the property of their husband. The law was read down because a woman is not her husband’s property but her own person. Ten steps backward — CCTV cameras and safety apps continue to be used for the constant surveillance of women to keep them safe and protected.

Forced digitisation that hard-codes heteronormative morality 

Without any consideration for the gender-based access gap to the Internet in India, the push for the use of a biometric-based digital ID, Aadhaar has continued in the name of inclusion, even during the global pandemic, further marginalising the GSM community. The forced digitisation to access welfare has significantly shifted the understanding around identification. Accessing one’s rights using a proof of identification has become synonymous with a person being under the constant surveillance of the state, including disclosure of details such as gender identity, sexual orientation, marital status, among others. 

The extent of state control seems to reflect in the extensive use of technology to access different state-sanctioned welfare and the (in)ability of individuals with certain bodies, gender and sexuality to enter data systems using Aadhaar in order to access these services. There are also those who may not require state welfare but are still subject to data surveillance by the state and private service providers through smart devices and the demand for Aadhaar, which merely commodifies individual data, as seen in the use of payment apps. Linking a payment app account to a user's bank account automatically verifies one’s identity with a government authorised identification document. Opening a bank account requires a valid ID. Those without an ID cannot open a bank account. More importantly, although a voluntary ID, the mandatory use of Aadhaar means individuals have no choice but to enroll for one. The Government of India has also been issuing a digital health ID at the time of administering COVID-19 vaccination, to all individuals using an Aadhaar as their proof of identity. The Union Ministry of Health and Family Welfare has said that the health ID was generated after taking every individual’s consent. However, individuals note that no information was provided to them nor was consent sought from them.

There has been a significant increase in the number of data breaches in the recent times. The data of breach CSC Bhim payment app in 2020 included the name, address, Aadhaar details, biometric details, PAN numbers, among others. The response to a Right to Information (RTI) request filed by MediaNama, a digital publication, has revealed that 30 data breaches were reported to the Indian Computer Emergency Response Team between January and June 2021 including incidents at Air India, Dominoes, among others. Evidently, the present day public policies governing essential services like healthcare reflect the state’s need to control bodies while private service providers simply profit off the body as data mines. Now there are private services offer to build 360 degree profiles of target users by scrapping data off the Internet on users’ online behaviour, likes, dislikes, buy behaviour, social media accounts and more. Such data breaches and profiling are likely to have a disproportionate impact on the lives of gender and sexual minorities due to the  deep-rooted heteronormative values in the society.

Use of the human body for datafication makes it a feminist issue!

With the mandatory use of a digital ID in India, rights access has now come to mean forced datafication of ourselves using biometric, chipping away the sanctity of the right to privacy, one that is inherent to every human body. There is no law to protect the right to privacy of individuals in India, especially the marginalised. The Personal Data Protection Bill 2019 is a bill that details out provisions for the protection of data and not the right to privacy of individuals.

The pre-digital power hierarchy in accessing one’s rights based on our gender, caste, class, religion, disability status, education, and all other discriminations, is now being cemented with digitisation. With the growing shift in the understanding of trust as one that is determined by technology and not a human being, access to rights has become an unending maze for the already marginalised to prove their humanity. The understanding of gender and the human body has been at the heart of feminist struggles throughout history. The power dynamics challenged by feminist and queer movements are being reinforced using a digital ID and technology. 

Over the last decade, the understanding of bodily autonomy and agency has been steadily redefined to reinforce patriarchal values by the mandatory use of Aadhaar for different sexual and reproductive health services. Mothers who cannot produce the Aadhaar of their husband and their own cannot access maternal benefits. Accessing abortion services in the public healthcare system without an Aadhaar is not possible.  Even with the amendments to the Medical Termination of Pregnancy Act, individuals do not have complete autonomy over their body and need to justify the abortion. Mandatory use of Aadhaar for a life affirming treatment like the antiretroviral therapy (ART) has resulted in individuals discontinuing their treatment fearing the breach of their privacy. So an individual without an Aadhaar cannot access services such as maternity benefits, abortions or even life-saving treatment like ART.

The use of a digital ID to authenticate the use of public health services also tracks the individual’s personal terms of engagement with another consenting adult in order to access essential sexual and reproductive health services. Apart from tracking, the state thus ensures rights access only to individuals that adhere to its patriarchal rules. This affects single mothers, cis women and non-binary persons accessing abortion services and professional agency of female and trans sex workers — everyone other than a heterosexual cis man. There is conscious ignorance or the erasure of the right to privacy for individuals from GSM communities by virtue of their gender and/ or sexuality.

Similarly, the new transgender law’s demand for a medical certificate to be able to self-identify one's gender impacts their ability to procure valid IDs including Aadhaar. As bodies with a history of criminalisation, the inability of transgender persons to enter these data systems using ID documents in their preferred name and self-identified gender not only signifies lose of rights but is often seen as being criminal or fraudulent.

Between the state’s need to control bodies and behaviours to reinforce heteronormativity, and the private sector’s hunger for data to profit off flashing the badge of inclusion, gender and sexual minorities are forced to compromise a whole host of rights to access their basic right to life. Without being part of datasets, they cannot access any state welfare. The continued inability of individuals to enter data systems will lead to their civil death. The diminishing data set of a particular identity could even lead to the erasure of a whole population group over time in data-based automated decision making systems (ADMS). Re-imagination of such power dynamics has long been the focus of the feminist struggle. However, with digitisation, these systems with their power hierarchies are designed to make individuals partially a slave to the system due to the everyday struggles of staying alive. Thus, the re-imagination continues to remain the privilege of the already privileged with an imagination that has no room for those at the margins.