In 2014, the Supreme Court of India passed the landmark National Legal Services Authority (NALSA) judgment, giving transgender people the legal status of the “third gender” and the right to self-determine their gender identity. The court held that gender-based discrimination violates constitutionally guaranteed rights to equality, autonomy, and dignity, thus ratifying transgender people’s fundamental rights and extending the scope of affirmative action to include them.
However, the legal gains attained through the judgment came under attack with the passage of the Transgender Persons (Protection of Rights) (TPPR) Act by the Indian Parliament in 2019. While the TPPR positions itself as an emancipatory law, it takes a dated approach to gender, requiring candidates to present a “detailed medical” report to a district committee before their legal status claims can be validated.
In gatekeeping transgender people’s access to the legal category through medical and life-course surveillance, the act denies their right to self-determination and, consequently, their claims to full citizenship. Importantly, the act criminalizes the religious practice of badhai (alms collection) by conflating it with the secular act of “begging.” Given that a large section of the community relies on badhai for its livelihood and cultural expression, the TPPR poses a threat not only to its economic prospects but also to its very existence.
While the impacts of the TPPR on transgender people are conspicuous and, therefore, rightfully well documented, the ways in which broader citizenship laws act upon transgender subjectivities need to be explored further.
Abrogation of Article 370 of the Constitution of India
Article 370 of the Indian constitution was a set of “temporary, transitional, and special provisions” that conferred upon Jammu and Kashmir its special status and the right to self-govern and determine the extent to which it wished to apply the Indian constitution to the region. The Constituent Assembly of Jammu and Kashmir reserved the right to revoke the article but ultimately never made use of it. As a result, Article 370 was deemed to have attained a permanent status in the Indian Constitution by the legal community, particularly following the Presidential order of 1954, which granted the region the status of a state. In August 2019, the incumbent Bharatiya Janata Party (BJP) government overrode the 1954 order and struck down Article 370, in effect making all provisions of the Indian constitution applicable to Jammu and Kashmir. The announcement of the abrogation was followed by the imposition of a curfew, a blockade of communication lines—amounting to what some consider “digital apartheid,” deployment of troops, and the extrajudicial detention and arrest of Kashmiris.
Transgender Kashmiris are faced with unique challenges posed by their double marginalization (Muslim and gender nonconforming); they often lack family support and rely on the internet for a support network and safe homes. So, while all Kashmiris were affected by these oppressive measures, transgender people fared worse at a time when they were required to stay within the confines of their household.
Right-wing politicians and commentators hailed the TPPR as a step taken in the direction of liberating transgender people from the clutches of a regressive state and bringing them into the fold of a new, LGBTQA+-friendly India—even as threats of violence loomed large over transgender Kashmiris. With the decision being touted as a “breather for LGBT people” and one of the “two great leaps” for India’s LGBTQIA community in a year’s span, in addition to receiving backing from the Queer Hindu Alliance, anyone who spoke up against it was summarily labeled homophobic and transphobic. The present government’s tendency to use trans rights as bait to promote Hindu-centric, majoritarian interests is a classic case of pinkwashing that detracts attention from the welfare needs and human and citizenship rights of transgender Kashmiris.
The National Register of Citizens and the Citizenship Amendment Act
Once Jammu and Kashmir’s special status was revoked and a decidedly majoritarian issue resolved, the government proceeded to make provisions to protect persecuted groups from its neighboring countries through the passage of the Citizenship Amendment Act (CAA) in December 2019. The CAA provided an accelerated pathway to Indian citizenship for persecuted Hindu, Sikh, Christian, Buddhist, Jain, and Parsi minorities who arrived in India before the end of December 2014, conveniently omitting Muslim minorities from that list. Another piece of legislation, the National Register of Citizens (NRC), was introduced by the Indian government in 2003 but only came into effect in 2018 under the BJP. It was introduced in the northeastern state of Assam, bordering Bangladesh, with the intention to isolate and expel undocumented immigrants as per the Citizenship Act of 1955. In 2018 alone, the government classified almost 33 million people as illegally residing in the country, rendering them stateless. The CAA is expected to work in tandem with the NRC; consequently, they should be understood as one unit, even as the government continues to deny any links between them.
It is important to acknowledge the gendered component of the CAA–NRC complex. As one example, around 2,000 transgender people were excluded from the NRC database in Assam, placing them in direct danger of detention and citizenship deprivation. Transgender people—who embody a trifecta of marginalization based on their religious, gender, and ethnic identities—are met with a unique set of challenges when trying to establish their Indian lineage. Many are estranged from their families and have lost access to documents establishing their lineage. Those who try to reestablish familial contact for the purpose of obtaining their documents often do not receive the help they need and, at times, experience violence at the hands of their family. In some cases, families act vengefully, destroying the transgender family member’s identity documents to keep them from leaving home.
Those who successfully surmount these challenges must then face the bureaucratic hurdle of correcting old documents bearing their deadnames and previous sex markers to reflect their present identities. In placing the burden of proving citizenship on transgender people, the state fails to take into consideration not only their limited legal capacity to fight a case in court but also the ways in which trans lives elude bureaucratic categorizations.
The right-wing threat to legal protection in India
With the ascendance of right-wing ideology in Indian politics and public life, modern citizenship projects like CAA and the reunification of Kashmir increasingly bank on people’s anxiety around cultural preservation and national security. People with minority identities, such as Muslims, transgender people, and other religious and ethnic groups whose existence poses a challenge to the Hindu heteropatriarchal family—the cornerstone of the Hindu nation, have become the prime targets of these projects.
When the special status of Jammu and Kashmir was revoked by the BJP, prominent members of the party swiftly co-opted feminist and LGBTQA+ groups in a bid to combat the party’s austere image. As such, with a larger support base, the BJP was able to package the move as a “respite” for the LGBTQA+ people, even as the communication gag and curfew that accompanied it blocked off their support networks and put them at risk of violence.
Contemporary laws concerning the citizenship of minority groups, including transgender people, fail to recognize the fraught relationship these groups may have with bureaucratic agencies. Much like the TRRP, the CAA once again asks transgender people to produce extensive paperwork to verify their identity and seamlessly link it to their past lives. Once again, the law weaponizes the bureaucracy to curb trans rights and citizenship—and potentially exclude groups of people from the country’s body politic.