A Note on the Definition of Transgender Persons provided in the Transgender Persons (Protection of Rights) Bill, 2019

The objective of the Transgender Persons (Protection of Rights) Bill, 2019 is to “to provide for protection of rights of transgender persons and their welfare and for matters connected therewith and incidental thereto.”

Section 2 (k) of this Bill seeks to define “transgender person” as “a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, Aravani and jogta.”

We see that the definition provided by the Bill incorporates binary notion (either male or female) of gender as the same talks about gender that does not match with the gender assigned to a person at birth. This seems quite problematic to me because of the following reasons: -

1. From a general perspective, the Legislature has failed to specify who specifies the gender of a person at birth. Is it the State or the person itself or the parents of such a person?

2. All the non-binary gender and sexual identities of a person seem to have been pushed into the watertight compartment of “transgender person”. Thus, a necessary implication of this definition implies that either a person is male or female or transgender. However, the definition itself states that it seeks to incorporate various socio-cultural identities such as Kinner or Hijra and even the persons with intersex variations or genderqueer.

What is important to remember is that by virtue of this law, the persons who are non-binary will have to be satisfied with the tagging of “transgender persons” by the Legislature. Again, a necessary implication of such a definition would be that the State would not recognize any gender apart from male or female or transgender. This may not go down well with the stakeholders i.e. the persons who seem to fall within the ambit of such a definition.

My advice to the Legislature would be to amend this definition and make it as non-binary as possible. It is not the case that the Bill does not seek to incorporate all kinds of socio-cultural identities. It does seek to incorporate all such classes of persons; however, I would say that, due to poor drafting, the definition seems offensive to the people who are stricto sensu not transgender persons but have different gender or socio-cultural identities.

Gender and Sex need to be seen as concepts that are fluid in nature and any effort to put them in watertight compartments may not be acceptable to the stakeholders. This seems to be not only the general view among the stakeholders but also the experts in this field such as the Psychologists, Sociologists, Philosophers etc.

Rather than affirming the identities of non-binary persons, by failing to provide for who specifies the gender of a person at birth, this Bill has left a vacuum in legitimizing the gender identity that a person may wish to ascribe to itself. Even biologically, scientific developments are recognizing that sex can be multiple in nature and the traditional notions are losing their significance.

Thus, it would be great if the Legislature addresses such issues and makes the definition less controversial and more in consonance with the existing norms prescribed by the experts in this field.