perspectives

In Transition

On new legal support for transgender people may challenge India's affirmative-action framework

By MARIO DA PENHA | 1 November 2014

ON 15 APRIL, the hijra activist Laxmi Narayan Tripathi walked down the stairs of India’s Supreme Court, overwhelmed by what she had just heard. A division bench of Justices KS Radhakrishnan and AK Sikri had reversed a longstanding policy of actively excluding from public life those outside the male–female gender binary.

Since the colonial era, such individuals had been demeaned as eunuchs, dislodged from positions of political authority, dispossessed of their property and livelihoods, and finally criminalised. The justices sought to neutralise this legacy by recognising the fundamental right of citizens to choose their own gender. They asked the centre and the states to endorse these choices on birth certificates, passports, college application forms, ration cards, in public facilities and restrooms—in short, the range of services that gender our national belonging.

More radically, the judges insisted that elected representatives create plans to incorporate transgender people within India’s mammoth affirmative-action regime. “There is a growing recognition,” the court wrote in its judgement, “that the true measure of development of a nation is not economic growth; it is human dignity.”

Tripathi, who has spent 16 years working for transgender justice, was in tears after hearing the decision. “I felt that no other person of my gender would ever again go through what I have gone through,” she told me. “One of the tallest pillars of democracy in this world had given us back our rights.”

The watershed verdict in National Legal Services Authority vs. Union of India marks a fundamental shift in the country’s established norms for recognising and accommodating marginalised communities in the social and political mainstream. Affirmative action is largely pursued through reservations in educational institutions and in public employment, and these reservations are largely accorded on the basis of varna and jati. Generations of federal and state government programmes—as well as Supreme Court judgements—have confirmed the primacy of caste in the pursuit of affirmative action, even when beneficiaries are not legally Hindu. By recognising that transgender people are discriminated against because of their gender identity, and granting that such discrimination constitutes them as a distinct class, the court has unsettled this consensus. It now seems plausible that factors other than caste or ethnicity could become the basis for successful claims to affirmative action by different kinds of groups.

The first part of the judgement—legal recognition of gender identities other than male or female—is comparable to similar decisions made by governments and courts around the world. The second—affirmative-action policies for those identifying as transgender—is perhaps unique to India. With all its radical implications, the judgement left some thorny questions unanswered. The transgender community in the South Asian context weaves together complicated threads of community and caste with those of gender. The judgement did not specifically address how India’s reservations structure, built predominantly to empower an assortment of caste identities, will accommodate a community ostensibly constituted by gender difference. It remains unclear in the eyes of the law whether, for the purposes of affirmative action, the transgender community includes individuals who simply self-identify as such.

To understand its future interpretations and impact, this momentous judgement must be placed within the long history of defining and demarcating people who are neither male nor female in India. In the immediate pre-colonial period, hijras and jogappas, who both serve as ritual functionaries to the subcontinent’s gods and saints, were among a range of initiation-based groups, which accepted people of heterogeneous origins who had abandoned the security of their ethnic communities and families. Historical sources from the eighteenth century tend not to dwell on ethnic origins or corporeal difference in their mentions of hijras. The term “hijra” itself—Arabic for “to leave one’s tribe behind”—suggests apathy towards individual histories, and to castes and pasts foregone.

Colonialism brought two persistent forms of categorisation that continue to shape new legislation for transgender people: a focus on the authenticity of ethnic origins, and on corporeal difference. In 1836, RD Luard, the enterprising sub-collector of Solapur, recorded that six hijras under his jurisdiction came from four separate ethnic groups. (That all six remembered and divulged these details is a noteworthy reminder of the durability of ethnic identity.) By 1892, HB Abbott, another colonial official, recorded that 356 hijras in Rajputana were born in 38 distinct Hindu, Muslim and animist ethnic communities. This sort of documentation, usually for the Imperial Census, was ambivalent about the suitability of classifying hijras as a caste, or an ethnic group unto themselves.

Even as original jati began to be counted as a part of hijra identity due to the mechanisms of the colonial census, physical difference became increasingly important as a marker. The colonial term “eunuch” was used as an umbrella to cover all kinds of gender variance, just as “transgender,” which gained currency in the 1980s, is today.

These colonial exercises were primarily for studying—and sometimes controlling—minority populations, not empowering them. The Supreme Court’s judgement stands as an attempt to depart from this norm. Justices Radhakrishnan and Sikri timed their judgement to coincide with the sixth anniversary of the pre-eminent model for any social welfare initiative for transgender people in India: the country’s first Transgender Welfare Board, set up in 2008 by the Tamil Nadu government. (Maharashtra set up a similar board this September.) While the Board cannot authorise affirmative action, it disburses identity documents, subsidies, and limited pensions that incorporate transgender people into the state’s social welfare programmes.

Tamil Nadu’s Transgender Welfare Board was formed in part to address the struggles of one particular community in the state—and the history of how Aravani identity has been constituted and defined illuminates some of the difficulties the judgment in National Legal Services Authority vs. Union of India will throw up. Until the early twentieth century, an annual festival in the village of Koovagam required men of the Vanniyar ethnic community to dress as women, signifying Krishna’s transformation into Mohini to marry the deity Aravan. Across southern India, similar performances remain popular to this day, across a range of ethnic groups bound by this ritual.

However, by the 1920s, after at least 90 years of upward social mobility, the Vanniyars began to fashion themselves as Kshatriyas. Christian missionary memoirs, such as Henry Whitehead’s The Village Gods of South India, recorded that Vanniyar men began to resent the practice of dressing as women. R Narulla’s Tamil monograph, Alikkal Valkkai argues that beginning in the 1960s, the Alis, the local transgender community, visited Koovagam, and appropriated the ritual of gender transformation from Vanniyar men. By the early 2000s, as their association with the Koovagam festival grew, and their own prestige rose, the Alis abandoned their previous nomenclature, now considered derogatory, and adopted the new name “Aravani.” A community constituted by the ritual practice of cross-dressing was now composed of transgender individuals who appropriated that gender-queering ritual.

This transgender community’s public assertions of its identity over the last fifty years have drawn legitimacy from its association with ritual power. The legitimacy accrued by one identity, based in ritual, has buoyed the empowerment of the larger umbrella group of transgender people, and strengthened the case for national reservations for all individuals identifying as neither male nor female, or transitioning from one to the other. After the court’s verdict, as national reservations for at least some groups of transgender people come to pass, Aravanis will be counted among 180 other “backward class” ethnic groups in Tamil Nadu—including the Vanniyars.

But “transgender” does not denote an organic category based on long-term ethnic identification, and questions of who can claim the term—along with its new benefits—have arisen. Many transmen (who were assigned female at birth, but now identify as men), transwomen (who were assigned male at birth, but now identify as women), and genderqueer people (who subvert gender binaries altogether) fear they will be left out of the reforms set into motion by the April verdict. In the Marathi weekly Loksatta Chaturang, Mridul, a transman activist, expressed concern that the verdict allowed the media to be able to equate “‘transgender’ with ‘hijra’ or ‘kinnar,’ completely ignoring every other kind of trans identity or reality, just as society has always done.”

Any affirmative action in line with the court’s ruling would require transgender people to be classified as Other Backward Class; even transgender people with Scheduled Caste or Scheduled Tribe origins would be treated as OBCs. This would make them vulnerable by placing them within a generally more privileged pool of people, a dilemma that Tripathi, who grew up Brahmin, empathises with.

In September, almost five months after the landmark judgment, the federal government raised some pertinent points of procedure with regard to the judgement—hinting, perhaps, at an undercurrent of resistance. Attorney General Mukul Rohatgi petitioned the court to clarify a few of the federal government’s concerns with the verdict. Rohatgi asked whether the executive must follow the court’s direction in the verdict suo moto—without prompting from a third party—or whether legislation must follow “procedure established,” and be routed through the National Commission for Backward Classes, which considers whom to include in binding lists of backward classes for reservations. Second, since affirmative action would occur by classifying transgender people as OBCs, Rohatgi asked whether those who grew up as SCs and STs would also be codified as OBC.

However, not many transgender people I spoke to seemed to be aware that, in fact, the NCBC had already recommended including transgender people in the central list of OBCs—less than a month after the verdict and in the midst of election season chaos. It is unclear why Rohatgi requested the Supreme Court for clarity when the NCBC’s imprimatur was already an accomplished fact. Anand Grover, a senior lawyer associated with the case, suggested that the federal government did so perhaps because it had failed to understand the case appropriately. “If the Commission has already made a recommendation, there should be no issue,” he told me.

But within the transgender community, too, there are differing opinions on how to resolve these questions. Some suggest a compromise that will allow members who grew up SC/ST to continue seeking reservations under that category, while most others would be classified as OBC. Living Smile Vidya, or “Smiley,” a transwoman artist and activist born into the Dalit Arunthathiyar community, disagreed with this view. She told me she believes such an approach will bring no benefit to transgender people who grew up like her, and worries that if transgender Dalits remain categorised as SCs, they will compete against those Dalits who didn’t struggle with their gender or their families.

Smiley is one of five transgender people who, last November, approached the Madras High Court demanding a 3 percent reservation for transgender people under a new category, mirroring reservations for people with disabilities. “If Dalits can receive separate reservations, as Dalits; and people with disabilities can receive the same, as people with disabilities—why can’t transgender people receive reservations separately?”

While innovative and well reasoned, the proposal is not without its complications. Affirmative action for people with disabilities, defined as horizontal reservations that cut across ethnic barriers, began with legislation in 1995 but has proceeded at a snail’s pace. At first, the government interpreted these reservations to apply only to public employment; only much later did it extend them to educational institutions. This September, the Supreme Court fought off the latest federal challenge, in which the government argued that reservations for people with disabilities might be considered for jobs in the civil services, but baulked at extending them to promotions in the top echelons. If transgender reservations were to sail in their own autonomous waters, without the mooring of an OBC listing, their relatively small size—pegged and possibly underestimated by the 2011 census at 4.9 lakh—might make them vulnerable to similarly narrow interpretations, and to legal challenges based on the government’s whims.

“Nobody will deliver justice to your door,” Tripathi told me, despite her enthusiasm for the judgement. “We still have a long road ahead.” For her part, Smiley remained clear about why affirmative action is vital to this journey: “When parents see a transgender child, they think of begging or sex work as their future. How will they accept their own children if these are their only options?” Reservations for transgender people could aid the social transformation that Smiley dreams about, but they will also push boundaries by leading India’s affirmative-action policies into uncharted territory, where the old consensus on caste no longer holds.

ON 15 APRIL, the hijra activist Laxmi Narayan Tripathi walked down the stairs of India’s Supreme Court, overwhelmed by what she had just heard. A division bench of Justices KS Radhakrishnan and AK Sikri had reversed a longstanding policy of actively excluding from public life those outside the male–female gender binary.

Since the colonial era, such individuals had been demeaned as eunuchs, dislodged from positions of political authority, dispossessed of their property and livelihoods, and finally criminalised. The justices sought to neutralise this legacy by recognising the fundamental right of citizens to choose their own gender. They asked the centre and the states to endorse these choices on birth certificates, passports, college application forms, ration cards, in public facilities and restrooms—in short, the range of services that gender our national belonging.

More radically, the judges insisted that elected representatives create plans to incorporate transgender people within India’s mammoth affirmative-action regime. “There is a growing recognition,” the court wrote in its judgement, “that the true measure of development of a nation is not economic growth; it is human dignity.”

Tripathi, who has spent 16 years working for transgender justice, was in tears after hearing the decision. “I felt that no other person of my gender would ever again go through what I have gone through,” she told me. “One of the tallest pillars of democracy in this world had given us back our rights.”

The watershed verdict in National Legal Services Authority vs. Union of India marks a fundamental shift in the country’s established norms for recognising and accommodating marginalised communities in the social and political mainstream. Affirmative action is largely pursued through reservations in educational institutions and in public employment, and these reservations are largely accorded on the basis of varna and jati. Generations of federal and state government programmes—as well as Supreme Court judgements—have confirmed the primacy of caste in the pursuit of affirmative action, even when beneficiaries are not legally Hindu. By recognising that transgender people are discriminated against because of their gender identity, and granting that such discrimination constitutes them as a distinct class, the court has unsettled this consensus. It now seems plausible that factors other than caste or ethnicity could become the basis for successful claims to affirmative action by different kinds of groups.

The first part of the judgement—legal recognition of gender identities other than male or female—is comparable to similar decisions made by governments and courts around the world. The second—affirmative-action policies for those identifying as transgender—is perhaps unique to India. With all its radical implications, the judgement left some thorny questions unanswered. The transgender community in the South Asian context weaves together complicated threads of community and caste with those of gender. The judgement did not specifically address how India’s reservations structure, built predominantly to empower an assortment of caste identities, will accommodate a community ostensibly constituted by gender difference. It remains unclear in the eyes of the law whether, for the purposes of affirmative action, the transgender community includes individuals who simply self-identify as such.

To understand its future interpretations and impact, this momentous judgement must be placed within the long history of defining and demarcating people who are neither male nor female in India. In the immediate pre-colonial period, hijras and jogappas, who both serve as ritual functionaries to the subcontinent’s gods and saints, were among a range of initiation-based groups, which accepted people of heterogeneous origins who had abandoned the security of their ethnic communities and families. Historical sources from the eighteenth century tend not to dwell on ethnic origins or corporeal difference in their mentions of hijras. The term “hijra” itself—Arabic for “to leave one’s tribe behind”—suggests apathy towards individual histories, and to castes and pasts foregone.

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