Abstract

Gender is mainly considered in binary terms. People located outside this gender binary have been ignored in both the discourses of laws and activism in many countries. People can identify as transgender in India on legal documents, but it has been chiefly restricted to socio-cultural identities like Hijras, Aravanis, and Jogappas. The laws do not mention any provisions for identifying non-binary people who do not identify with socio-cultural identities. Queer activism has also primarily been focused on privileged gay men, while the voices of others have mostly been silent. This article will explore the issues around laws and activism in India from a non-binary gender lens.

Introduction

There has been a widespread belief that gender is binary and someone is either a man or a woman in most parts of the world, with the existence of non-binary people being erased.  Recent years have however seen questioning of such a limited idea of gender both by social movements and academic theorization [Chaudhuri, 2016]. It is increasingly recognized that non-binary is an umbrella term used for various gender identities like genderfluid, bigender, agender, and gender flux. Thus, non-binary people can have gender identity between male and female or beyond it. This essay seeks to argue that the visibility of non-binary people has been increasing, but still, they are faced with obstacles and non-recognition [Monro, 2019].

Only a few countries worldwide recognise other gender identities apart from man and woman and permit an X gender marker on passports, while the gender marker on other IDs like birth certificates remains the one assigned at birth. Only a few countries like Denmark and Malta allow a person to change their gender marker in all legal documents. One hundred ninety-two participating ICAO countries accept individuals with an X marker on their passports [Holzer, 2018].

Colonially mediated western discourses have also had their role in erasing cultural gender identities outside the binary. This has tamed people’s experiences of falling outside the gender binary in terms of binarily sexed institutions, policies and even languages. Mental health issues and experiences of dysphoria that are prevalent in non-binary people receive scant attention. This article will explore the laws and activism regarding non-binary people in the Indian context.

Legality Around Non-Binary People in India

India came to the headlines in 2014 when the Supreme Court legally recognised transgender people and included them in a different category of gender outside the realm of man and woman. This resulted from a long battle for decades to get recognition for transgender people, whose presence has been recorded since millennials back in the Indian subcontinent. The judgement included gender marker T besides M and F, which allowed transgender people to identify with the T marker.

 However, as Dutta (2014) has articulated, the judgement excludes a large section of the transgender community. Only transfeminine people have been included in the judgment and cultural identities like Hijras, Aravanis, and Jogappas, amongst others. People who identify from outside these defined identities have been highly exclusionary. NALSA mentioned that ‘transgender’ includes Hijras who identify as neither man nor woman, transsexual people who want to go through surgical procedures to align their body with their gender identity, and transvestites who dress in clothes of the opposite gender. This definition is highly exclusionary of non-binary individuals since not all would identify as Hijras or transvestites or opt for surgical procedures.

The Transgender Persons (Protection of Rights) Act, 2020, which was passed by the legislature, was supposed to come as a saviour for the transgender community. Instead, the Act snatched away the rights of transgender people to self-identify themselves. Initially, the Act proposed that the transgender person has to prove their gender identity to the District Magistrate to get a transgender certificate [Ghosh and Ghosh, 2019]. However, this Act was later revised and instead made the mandatory provision of a report from a psychologist mandatory to secure a gender identity certificate [Ministry of Social Justice and Empowerment, 2020].

This creates specific barriers for non-binary people as many non-binary people are averse to seeking mental healthcare [Twist and Graaf, 2018]. Many non-binary people do not wish to disclose their gender identity due to the lack of understanding of the complexities of mental health professionals. In addition, as Pulice-Farrow et al. (2019) claimed, the gender identity disorder or gender dysphoria tests conducted by mental health professionals are often not indicative of a diverse range of transgender and non-binary experiences. Indeed, it aims to gatekeep only one type of transgender experience while rendering others invalid or unworthy of recognition.

Moreover, this Act does not mention non-binary people. This Act does mention genderqueer people at specific points but collates them with other transgender groups and lacks detail on how genderqueer bodies will be perceived during the recognition process and access to their citizenship rights [Ministry of Law and Justice, 2019]. On the contrary, not all genderqueer people identify as non-binary and vice versa. While genderqueer can be thought of as a more political term to disrupt the binary, non-binary is thought to be more of an identity that situates itself under the transgender umbrella [Thorne et al., 2019]. Therefore, non-binary people in India continue to be excluded with their gender identity not mentioned on their legal documents. This can create many problems involving civil rights and healthcare.

Activism

While queer activism has brought fruitful results worldwide, with an increasing number of countries decriminalising homosexuality and putting laws in force to protect the LGBTQ+ community, not much has been seen regarding the recognition of non-binary individuals. As Parmenter et al. (2020) has articulated, non-binary people still feel excluded from the mainstream LGBTQ+ community. Queer activism has primarily focussed on White, upper class gay cis-men activists in the position of power. In the Indian case, gay men belonging to upper caste and class dominate the queer liberation movement where caste and gender-based oppression in the LGBTQ+ community are often overlooked.

The removal of section 377, which was introduced during the colonial rule and criminalised homosexuality, was termed decolonisation by many. Pre-colonial India and its acceptance of homosexual desires and eroticism as evident in sculptures in different temples were cited [Upadhyay, 2020]. The legality around transgender issues has been the same as Hijras have been present in India for centuries. Thus, only identities legitimised by Hindu scriptures have only been included in the discussion of gaining recognition and rights. Non-binary people present a unique case since activists in the West have recently coined the term as an umbrella term for gender identities that do not fit into the binary. The problems faced by non-binary people are often ignored and are left to die a ‘slow death’ as Haritaworn (2014) has termed it ‘queer necropolitics’.

Conclusion

Even though LGBTQ+ activism has been fruitful in India with some significant successes achieved, like decriminalisation of homosexuality and recognition of transgender people, not much has been seen regarding the recognition and rights of non-binary people. The legislation and activism have excluded non-binary people from their discussion and only focussed on those mentioned in Hindu scriptures. This approach has been proven to be flawed and fruitful to only those who conform to the identities prescribed by Hinduism. Non-binary identities are seen as imports and not worthy of recognition and citizenship rights in India. Therefore, to secure rights for non-binary people and make them worthy of citizenship, the psychological test as a gatekeeper to secure a gender identity certificate should be removed.

References:

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Swakshadip Sarkar is a PhD candidate at the School of Social and Cultural Studies, Victoria University of Wellington.