[This paper was submitted, out of competition, via email dated 24.6.2024, to the 11th Annual Conference 2024 of the Berkeley Center on Comparative Equality and Anti-Discrimination to underscore the issues with comparative equality and anti-discrimination from a transgender perspective, propose a complete return to positive discrimination, and also seek scholarship as a transgender person to secure admission to NLSIU, where the conference is set to be conducted. Till the time of publication no response has been received from the Berkeley Center or Oxford Human Rights Hub]
Dedication: To named and unnamed transgender individuals through history who have built and sustained inter-caste communities with little to nothing at their disposal.
Introduction
Having completed the financial aid application process, I request you to kindly confirm if I can now move on to the next steps namely educational document verification and begin attending classes. As an institute of great repute such as yourself even you have required over two weeks to be able to secure the minimal funding mentioned above.
Hence, I am sure you will appreciate that as someone with no resources, raising this amount through loans or fundraisers will require time. As you have pointed out I am indeed a postgraduate, but I am yet to experience fair working conditions or a pay scale apposite to my qualifications and work experience, nor have I been able to create any wealth/assets to my name.
Therefore, kindly allow me to simultaneously complete the remaining procedures and join classes from October… – September 28, 2023
– Excerpt from my letter to a National Law University, seeking time to raise tuition fee after they rejected my financial aid application
You will appreciate that, as you have been notified in the email from the Registrar dated 28.08.2023, the process of admission to the University is complete only upon completion of all the steps detailed therein, one of the steps being payment of fees in full. As stated in the email, a student can commence attending classes only after completing the process of admission. This is a uniform rule applied to all students of the University. – October 31, 2023
– Excerpt from the University’s response to my request, provided a month later.
Equality is a desire, a demand. It is a fundamental right. It is a principle essential for the transformation of societies that are founded on and further a life of discrimination and plunder. Equality is considered the life-force of reforming human life, mind and societies. This much, in letter, will tend to be agreed upon. When the question of individual uniqueness and communally enforced categories arises we tend to fall back on phrases such as “equality with difference”, “comparative equality”, “equality of opportunity” and very rarely, hesitantly – “historical reparations”.
The assumption of modernity, and a desire to believe that we live in modernized societies, means that there is an assumption (unstated or otherwise) that all categories have been listed and accounted for. In other words, whether repaired or not, essential history has been documented. And whatever has been documented is adequate to keep moving forward and marginally tweaking the system.
In this paper, I seek to challenge the basis for an overwhelming area of study namely, comparative equality and anti-discrimination, argue for an understanding of the mechanics of ‘eviscerative’ equality, and propose a complete return to positive discrimination. This is done by focusing on a singularly heterogeneous category of transgender people – a category that has been historically present but completely unaccounted for. The socio-geographical context will remain India, but as I have been conversing with various positions surrounding relevant principles/theories during the course of my self-study, those influences will be apparent. Through the course of the paper, where relevant, I will also reflect on my personal experiences in trying to secure a seat in an LLB course in the country (a pursuit since the year 2018-19).
Through this paper, I will place my arguments surrounding eviscerative equality – what it is and how it operates, especially with respect to the systemic evisceration of the transgender community through law and social justice parlance in India. And ultimately I will offer the critique of comparative equality and the unfavorable focus on anti-discrimination, ending with the inescapability of positive discrimination laws.
Eviscerative equality and transgender rights in India
I am not concerned with the prescriptions around equality in the philosophical, legal and ideological realm. There are definitions, redefinitions and discourses endless on the matter – leading to and from various phrases such as ‘formal equality’, ‘nominal equality’, ‘substantive equality’, ‘proportional equality’, and now ‘comparative equality’. I am also not taking a position that equality, as a right and an ideal, is unnecessary or unachievable. I am concerned here only with the path to and practice of achieving and securing complete, non-negotiable equality.
In this I am informed by an Ambedkarite and (Navayana) Buddhist ideology. The essence here is that ‘mindless philosophical speculation’ (Hanh, 2023) on the ideal – established and incontestable as it is – is set aside to understand the path to actualization. Here, Buddhist ideology is not seen as a theological position, but as an indigenous, yet global set of moral and legal principles governing the relationship between human beings (Ambedkar, 2018).
Eviscerative equality is equality as practiced by members of the oppressor classes, individually and institutionally, within so-called modern constitutional democracies. It is born from the persistent denial of ignorance where it exists; it is deployed to ensure an illusory stability of a system, however poorly it may be running, and therefrom to deny and confound all new challenges to the system. In essence, to eviscerate individuals and communities as they approach and formulate the core of their demands in full. This is done by ‘applying equally’ the existing, flawed and entirely inadequate systems and processes – in the architecture of which these ‘new’ categories were never imagined, let alone represented or consulted. And further by pressurizing and demanding that these communities ‘submit equally or uniformly’ to these systems and processes.
The immediate question here would be: but isn’t this just inequality? If we read the response (excerpted above) provided by a National Law University to me, as a homeless transgender person, who also pointed out that their existing financial aid procedure only applied to fully-documented individuals with fully-documented and functioning families, we can recognize the righteousness with which they have deferred to the principle of ‘uniform application’. And we will also see that such phraseology and processes, especially when coming from ‘meritorious institutions’, is interpreted as carrying the weight of equality, as ‘due process’.
A simple ‘comparative equality’ view would conclude that different groups should be treated differently – and the matter is thus closed. A reading of the Indian constitutional guarantees would also conclude the same. Indeed, any conscious student of discrimination, equality and law would simply agree that one errs terribly by deferring to ‘uniform application’ of law – as process, ideology or outcome – to differentiated categories of historically discriminated individuals and communities. On this there isn’t much to debate.
But that still leaves the question of process. For, even if we may get everyone in the room to agree that the same process cannot be imposed upon or applied uniformly in inherently discriminatory and graded societies, a process is still required. That there be a process is a requirement for achieving equality, just as much as the need for differentiated processes is also a requirement for equality. Eviscerative equality is equality that is unconcerned by both these essential impetuses for action.
Eviscerative equality, rather than focus on undoing and reframing processes in favor of the marginalized, embraces the view that existing processes (merely on account of being established through a constitutional government) must suffice until everyone is exhausted. Either we shall exhaust the available processes or settle for no process at all – and within this duality, your rights may reach you at whim, per a lottery, not as priority.
Let me illustrate this issue with process using another personal example. In 2023, I had to approach the Bombay High Court against my alma mater, Tata Institute of Social Sciences, Mumbai after they refused to re-issue my educational certificates in my chosen name and gender identity. The matter was adjudicated in my favor, without a doubt. For, like most institutions, the University simply had no process and was unwilling to initiate one without the intervention of the court. However, upon seeking the execution of the High Court order, the University placed punitive costs on me to access my educational documents. Documents that are for all intents and purposes, having completed the course, the inalienable property of the student.
In an email dated May 4, 2023, to their Equal Opportunity Committee and Women and Gender Development Cell, I wrote:
“…the Academic section informed me that in order to comply with the order I will be required to fill in the existing application form and pay a total of 6700/- (including postal charges). The administration has arrived at this amount by referring to the option of “issuing duplicate degree certificates/grade cards to those who might have lost the original” and further applied the additional charge by reason of my being an alumnus who passed out more than 5 years ago. In sum, the institute is charging me 2000/- per document.
…
As a transgender person with little to no financial or social security, this amount as it stands is impossible for me to arrange. In my response to the institute…, I have appealed for a review of the charges.
a) The category of duplicate certificates does not meet the criteria of my request as I have not lost my original documents. Rather, unlike my peers, over the past decade I have lost the opportunities to higher education and gainful employment because of the existing mismatch in my educational documents, apart from the very fact of my transgender identity.
b) It is only after 2014 that transgender persons received formal legal recognition, and further recognized as socially and educational backward classes. In recent times, some states have gone forward to classify us as ‘most backward classes’ as well, recognizing that we are among those with highest drop-out rates.
c) Therefore, I humbly submit that by applying what may be categorized as prohibitive, if not punitive charges, retained in the existing form for issuing lost documents, my attempts to return to and pursue higher education and employment are being made more distressful.”
While I was eventually offered a ‘discount’ of 2000 rupees, only because one of the documents I was seeking was not listed in their original form, till date there has been no public information on the review and changes to the application forms, and more importantly the costs imposed by the institute on marginalized students.
For individuals without any other form of property, it is also important to reflect on the original conditions of the form itself, and the most vulnerable whose perilous living conditions may lead to the ‘loss’ of this intangible property.
The ‘transgender’ category in law
Now, expanding upon point (b) from my email, quoted above, it is essential to look at the historical state of transgender persons vis-à-vis the law here.
The tendency of mainstream historians, including some members of the transgender community, is to begin documenting transgender concerns in law at the point of the British colonial act namely, Criminal Tribes Act 1871. However, we must take many steps back into the Manusmriti – the ancient Hindu law codes – to explicate the original definitions and rules applied to transgender people (derogatorily referred to as ‘eunuchs’ and ‘hermaphrodites’ in the text), leading to the appalling state of life that made them vulnerable to equally devastating colonial laws that would follow. If one requires an academic reference to assert the point with respect to the category of criminal tribes before western colonization, Anastasia Piliavsky (2015) would be an interesting jumping off point as it appears unburdened by overwhelming compensatory colonial guilt and feels more inclined towards truth-seeking.
Now, the relevant diktats from the Manusmriti[1] regarding transgender persons, can be collated and classified as under:
Biological peculiarization:
- “As a eunuch is unproductive with women, as a cow with a cow is unprolific…even so is a Brahmana useless who does not know the Rikas” – verse 2.158
- “A male child is produced by greater quantity of male seed, a female child by the prevalence of the female, if both are equal, a hermaphrodite or a boy and a girl… (results)” – verse 3.49
Social boycott and ostracization:
- “Manu has declared that those Brahmanas who are thieves, outcasts, eunuchs, or atheists are unworthy (to partake) of oblation to the gods and manes.” – verse 3.150
- “(Let him – the Brahmana – not entertain at a Sraadha) he who does not follow the rule of conduct, a (man destitute of energy like a) eunuch…” – verse 3.165
- “A chandala, a village pig, a cock, a dog, a menstruating woman, and a eunuch must not look at the Brahmanas while they eat.” – verse 3.239
- “A Brahmana must never eat at a sacrifice that is offered by one who is not a Srotriya, by one who sacrifices for a multitude of men, by a woman, or by a eunuch.” – verse 4.205
- “(A Brahmana must never eat food given) by one accused of mortal sin, a hermaphrodite, an unchaste woman, or a hypocrite, nor a sweet thing turned sour, nor what has been kept a whole night, nor the food of a Sudra, nor the leavings of another man.” – verse 4.211
Denial of family and property rights:
- “But she (a savarna woman) who shows aversion towards a mad or outcast (husband), a eunuch, one destitute of manly strength, or one afflicted with such diseases as punish crimes, shall neither be cast off nor be deprived of her property.” – verse 9.79
- “He who was begotten according to the peculiar law (of the Niyoga) on the appointed wife of a dead man, of a eunuch, or diseased, is called a son begotten on a wife.” – verse 9.167
- “Eunuchs and outcasts, (persons) born blind or deaf, the insane, idiots and the dumb, as well as those deficient in any organ (of action or sensation), receive no share (of property).” – verse 9.201
- “If the eunuch and the rest should somehow or other desire to (take) wives, the offspring of such among them as have children is worthy of a share.” – verse 9.203
A life valued against straw and lead:
- “For killing a snake, a Brahmana shall give a spade of black iron, for a eunuch, a load of straw and a masha of lead.” – verse 11.133
As can be read above, transgender people across castes were bunched up and subjected to similar, if not worse ignominy, ostracization and punishment, as every other criminal and criminalized caste, tribe and category of people.[2] However, unlike many other criminal tribes (Piliavsky, 2015), the transgender community is unable to come together in a way to form one singular essential of the sociological unit of caste and tribe, namely, ‘hereditary ties of blood’. And in that, we actually become a community of what Ambedkar (1917) identified in the genesis of caste as the surplus men/women/people.
The criminalization continues through time into the colonial Criminal Tribes Act, 1871 and its subsequent iterations. Even though, the anti-trans provisions were removed in letter from the Criminal Tribes Act, 1911, “concerned members” of the Indian public actively demanded of the colonial government that transgender people be confined to islands and ghettos. Post-independence the criminalization through various beggary and eunuch acts continued (Hinchy, 2019).
In 2014, the NALSA judgment came into play that provided for the first time legal recognition to self-determined transgender identity. Though bearing multiple pitfalls in categorization, language and in the extent of coverage to various denominations of people under the transgender category, the judgment can be said to retain the possibility of a certain spirit of the Constitution. The problems, as we see, however, do get compounded over time.[3]
This is where I would like to return to the question of process. Living as we are in an electoral democracy governed by a constitution, when there is an erosion of rights, a complete retrogression in mindset of representatives, there is an urgency to ‘return to the Constitution’. In doing so the text, the book in itself, becomes an object at the center – to be memorialized or destroyed. However, the heart of a constitution is the constitutional process and the process of its constitution.
The process of constitution has been recorded. Very often what is pointed out is that the Indian Constitution remains one of its kind for the sheer representation of oppressed classes in Constituent Assembly (whether adequate or not remains another matter). Four key categories namely, oppressed castes and tribes, women from oppressed castes, and members of minority religions are highlighted here. However, the many peoples bunched together as criminal tribes were not represented, and the discussion surrounding their rights were fraught with unfavorable stereotypes and fears (Gandee, 2020). Yet still, a part of them were considered and recognized, and within two years of India becoming a Republic, in 1952 the process of denotifying criminal tribes and extending constitutional rights would begin.
Transgender persons, though similarly criminalized and left to our devices, seen as impotent ill-omens that absorb bad luck around birth, home the grief of death and forced to offer up our bodies as sacrifices for ‘healing’ the frustrations of cisgender men and women across castes, have to wait till 2014, despite multiple attempts earlier to partake in the process.
Having been left unaccounted from the process of the constitution, now what is available to transgender persons is the constitutional process. The first question here would be – can the latter be adequate without the former? And the second, what is the right application of a constitutional process?
That the lone legislation on trans issues – the Transgender Persons (Protection of Rights) Act 2019 –has been challenged as unconstitutional and is pending before the Supreme Court since 2020 is sufficient to answer the first question. The constitutional process, for a good constitution, is a thoroughly robust, representative and democratic process. The constitutional process is not one led by mere epithets such as compassion, equality and justice. It is intentional and informed by a desire to bring together people immediately affected, and under their guidance and knowledge, tear into the foundations that have led to the current state of unconstitutionality and consequent confusion.
At present there are multiple cases lying fallow in the Supreme Court and various state High Courts, beating to death, drawing blood from individual transgender petitioners and communities, on one and the same pronouncement the verity of which has been established by the Supreme Court in 2014. The pronouncement is: transgender persons are historically discriminated against, have been denied affirmative action in education and unemployment, and require immediate and urgent repatriation of their fundamental rights.
Meanwhile, even as the communal rights are being held ransom to a tiresome judicial process furthered only by individual representatives, and contradictory and inherently discriminatory laws are remaining unaddressed, individual members are being mollified with statements of well-intentioned compassion. For instance, in the case of a transgender person terminated by two private schools in different states of the country (Banerjee, 2024), it is reported that the Supreme Court stated this: “we will see what we can do”[4]. The immediate response that comes to mind is, why not start with the repatriation of our communal rights?
The relevant law – Transgender Persons Act 2019 – that would be applicable here is being challenged as unconstitutional, and further it has no real protection from discrimination in education, employment or housing, OR any provisions for the real repatriation of those rights. And (perhaps following from verse 11.133 of the Manusmriti), within this ‘modern’ law all forms of abuse upon transgender persons invites a punishment of six months to two years, whereas under laws protecting cisgender women and children against same/similar offences greater or more rigorous punishments are to be awarded.
One may be reminded of the pronouncement made in the case of Queen Empress v. Khairati (1884), presumed to be a transwoman – a case oft-quoted by observers of the growing compilation of cases in the broad strokes falling through the cracks of LGBTQI+.
One judge Straight writes[5]:
“…Tile [sic] charge upon which the accused was committed and subsequently tried alleges neither time when, place where, nor point to any known or unknown person with whom the particular act charged as an offence against p. 377 of the Penal Code…
At best the case for the prosecution is, that the accused in [sic] a habitual sodomite, but at present there is no provision of the law that covers it or renders him [sic] amenable to punishment upon evidence so vague…
I fully appreciate the clear of the authorities [sic] at Moradabad to check these disgusting practices… conviction is quashed.”
As mentioned earlier, under eviscerative equality rights reach us at whim, per lottery. Khairati was protected from active conviction only because whatever the existing process required for conviction was not ‘equally and adequately’ followed. The rationale of intrinsic criminalization, however, remained sacrosanct.
Under the ‘modern’ constitutional government, eviscerative equality sees the language of pronouncements being changed from disgust and derision to compassion and concern without the recognition of the historical contradictions, deep discrimination in processes and absolute systemic failure. As such, ‘checking disgusting practices’ from 1884 becomes ‘we will see what we can do’ in 2024, without a comprehensive application of representative constitutional process denied to transgender persons (as an entire heterogeneous community of individuals).
Criminal and [historically] criminalized
While the matter of positive communal fundamental rights under education, employment, housing etc remain in continued abeyance, the impetus for ‘equality’ within the criminal justice system has moved significantly faster, due in no small part to our historical position as being ‘criminal tribes’. The report of the Supreme Court-appointed Amitava Roy Committee on prison reforms, makes recommendations for ‘equal treatment’ of transgender prisoners, pursuant to which the Supreme Court has sought responses from the state and central governments[6].
Here, I am called upon to make a comparison between my own attempts to study the law for a five-year period from 2018-2023 and those of a cisgender convict during the same five-year period, who is now successfully enrolled. The difference here is between a criminal and the criminalized.
Through a detailed order dated 3rd November 2023[7], the Kerala High Court ensured that a person, convicted and imprisoned in 2018 under various sections of the Indian Penal Code, could enroll and complete his legal education from within the confines of the prison. Through this order the court provided extensive affirmations on the value of education to the right to life and allowed for the constructive elimination of all existing prohibitive provisions in accessing professional legal education through online /distance technologies as currently being practiced by the Bar Council of India, among other things.
There were other factors at play as well. For one, the convicted person had a supportive family members and adequate financial capability, thereby able to complete physical verifications and make necessary fee payments. Secondly, the court also suo moto impleaded the Bar Council and proactively interacted with the prisons and respondents to arrive at solutions and seek clarifications. In other words, all relevant institutions around the petitioner (seeking education) and the respondents (denying education) were brought to bear in an active process of serving justice.
Apparently roaming ‘freely’ in this country, I have attempted to get admitted into an LLB programme since 2018 – the year in which the aforementioned person enters prison and also completes a Masters’ before enrolling for the LLB programme. Due to the Maharashtra state gazette refusing to publish my name change and the subsequent delays in getting my ID documents, leading to a case being filed in the Bombay High Court, I missed the deadlines for the 2019 intake. Through job and home loss and the pandemic, I would successfully apply and clear all the entrance exams in various states in 2020. The complete shift to online intake and verifications of documentation during that year would reveal that the documentation process has absolutely no understanding of the transgender identity. With no grievance redressal mechanism, no possibility of free movement due to lockdowns, lack of funds, and punitively short windows for verifications, lack of affirmative action, as well as the conscious systemic elimination, I would not secure any seat. From 2021-23, homelessness and chronic underemployment would persist. In 2023, after going through the second case to get my educational documents updated to reduce one roadblock in verifications, with the help of consistent shelters and saving up for application fees, I returned to applications and once again successfully cleared examinations. And yet, here I am still without a seat, reflecting on eviscerative equality, even as all institutions and processes around my right to education continue in their proverbial la-la-land.
The inherent problem with the act of comparative equality in a discriminatory society
Here one must reflect upon the inherent problem with comparative equality in a fundamentally discriminatory society. Rid of all the philosophical twists and turns, an adequate definition of comparative equality in practice can be that it studies equality by comparing categories, experiences, contexts and data, and the legal praxis around all of the above. For those making the comparisons from below, it may be a starter tool to establish losses. For those making it from above, it may be a comfortable space to settle into, as settlers so often do – because it allows (actively or passively) the propagation of a feeble defense that ‘someone else, somewhere else, is worse off.’ And because of this latter comfort, the process of moving away from eviscerative equality will be halted for those from below, as they will be caught in the cycle of constantly proving one or other as worse off.
Take for instance the comparison I have myself provided above. The immediate responses may vary from ‘oh how cruel a system that a convict can study the law’ to ‘it has taken us this long to reach here, we must persevere further for decriminalization of transgender identity’, and any other iterations in between.
Neither would take us far. As a student of the law and society, the Kerala High Court’s order and its understanding of the role of education in reform and rehabilitation, and prisoner rights offers great possibility. A triumph of substantive equality anywhere can become a win everywhere, if appropriately understood and utilized. The thoroughly disgruntled would be prone to dehumanize the convict, which would be wrong. Those who thrive on simplistic optimism would suggest that if it exists for the criminal then it surely exists for the criminalized, which is not entirely right. Meanwhile, those who discriminate will continue to use comparison to further discriminate.
The hallmark of inherently discriminatory societies such as India – where the graded hierarchy of caste (tied intricately to gender and disability) is practiced – is that comparison (or a constant comparative thinking) lies at the heart of the ‘competitive spirit’ to discriminate and defeat. One may even say that in our society, comparison is itself competition, and that is itself caste capitalism. This can be illuminated by a study dating back to 1965 conducted by pioneering sociologist C Parvathamma, and co-authored by S Sharadamma, into the field of medical sociology. This paper stands out for its focus on the actual social composition of the medical students, i.e. producers and practitioners of medical knowledge. The data from this study (of medical undergraduates in Mysore), they write, “belies the popular notion that medical education is the privilege of the rich…” (Parvathamma & Sharadamma, 1965). Through the caste, class, religion and sex wise data in the study, it is apparent that the rich and powerful were not keen on modern professional medical education, despite access to resources. The composition of men from high income families at the time was only 8.5%. The combined percentage of SC/ST/OBC students was 34.8%. The authors credit this to the quota system, fee concessions and government scholarships, and the emergent way for oppressed families to seek investment in education and upward mobility.
Accessing education (or any space for that matter) as a means to secure one’s deprived rights and better oneself is very different from doing so propelled by the knowledge and intrinsic distaste that someone else is bettering themselves. The intents and processes applied by the latter will not serve any good for the person or society. At the risk of oversimplifying, the forever germinating seed of the problem of overt and covert discrimination tends to lie therein.
Into the hands of such a society, offering a tool such as comparative equality, is unlikely to offer any respite. My interest in making the short comparison above, apart from clarifying the distinction between criminal and (historically) criminalized, and tying it up with Parvathamma and Sharadamma’s (1965) paper is to underscore two matters.
One, I do not hold that my right is greater or lesser than another person’s – whoever they may be. Comparative equality and anti-dscrimination law, however, requires me to do so and prove so. The matter here is that the access to my right (here representative of transgender right to life) that can be made possible only through the comprehensive functioning of multiple institutional processes, is denied on account of my absent personhood in each and every institutional process. Eviscerative equality, I submit, is the only equality available to those whose personhood has not been recognized or recorded in the constitution of a process – legal, juridical, legislative or executive. The starkest, yet simplest statements the transgender community hears and often internalizes in this regard varies from: ‘look at the state of women’s rights in the country’ or ‘when caste discrimination continues without rest, what are you expecting’. At once, this dissolves the connected nature of discrimination and places the burden of waiting in line upon the transgender community without due regard to historical burdens already placed — and this is done through the tool of comparison, in the most predominant manner that our discriminatory socio-legal system has learnt to deploy it.
Second, one key institution that comes to play in the comparison I offered and underscored in Parvathamma’s paper (1965) is that of family. The presence of a family allows the imprisoned person not only a default proxy to complete physical tasks but also a certain validity – that the betterment of such person will translate into the betterment of the family and through that society. It is not uncommon in advocacy to seek compassion from judges by reflecting on all that makes the person before the court a person – taking root always from the family. Similarly, as underscored by Parvathamma, the desire for rights and the utilization of such rights is propelled in no small measure by the backing of family units. A unit that can – whenever there is an absence or breach of rights – collectivize into communities. Any individual, devoid of this fundamental unit, will find themselves hard put to organize life and community. No matter what proof of deprivation of individual and communal rights such person may provide. For, an individual — individuated, self-determined but undeniably communal — is yet to be truly considered an intrinsically public good in their own right. Therefore, what tool of comparison can be brought to bear upon a socio-legal system wherein the family remains a fundamental unit, and both communal and individual rights are understood and guaranteed predominantly through the recognition of a stable endogamous family and communal unit, such that transgender rights across generations may be guaranteed?
In sum, a comparative process towards equality in fundamentally discriminatory socio-legal systems can only further the evisceration (in the name of equalizing) of those who stand staunchly outside every building block of the society in question and, as such, every process emerging out of these building blocks that only works to cement the system.
The impossibility of anti-discrimination law: The transgender ‘category’
Building off of these comparative processes, the fundamental concerns of anti-discrimination law lie in some or other struggle of categorization. Who is to be included or excluded, how such will be done, what acts can, will or must be considered, and the categorization of discriminations itself. There have been growing theorizations on this (for instance, Khaitan (2015), Solanke (2017) and Hellman & Moreau (2014)). Very often the heart of it surrounds the question of multiple intersections of identity (as highlighted first by Kimberle Crenshaw) and in particular deployed through employment rights.
The immediate problem here is that existing categories (now along with their seemingly burdensome intersections) are taken as given if not sacrosanct. Further, perhaps due to the very process of comparisons, a replicability of these categorizations is also sought. Finally, there emerges a certain disdain towards experiences of discrimination that fall outside of the current identified categories. Within the ambit of, and perhaps informed by these problems, discrimination and its attendant injuries, insults and legal corrections are sought to be arranged.
Categorization itself as a product and process of discrimination is not always deeply considered. Wanting the law to consider intersectional identities, yet making a differentiation between ‘lay perceptions’ of discrimination and ‘legal theories’ of discrimination (Khaitan, 2015), somehow doesn’t appear to be contradictory for those writing about discrimination law in this manner. Law is merely that which is written by lay people with greater proximity to power and perhaps a greater distance from courage. Categories themselves have two broad, yet overlapping distinctions as they operate in the socio-legal system, categories of imposition and categories resisting impositions.
Here, let’s step away from law and turn to anthropology. I depend on Black trans theorist Shay-Akil Mclean’s (2020) work that offers a critical view on the ‘social construction’ theory of race “through critical historiography of race and racism and evolutionary biology”. In this paper, Mclean details the faulty manner in which history and social constructionism have been understood and deployed, and further how the ‘sciences’ such as biology have been made tools in negating and strengthening the roots of race/ism. Without going into each aspect of the paper, for my purpose here, what I can broadly summarize is: the (racial) categorization of human beings is a process rooted in discrimination; it utilizes all forms of sciences in strengthening its basis; the history (and therefore time) of this process is never complete; and finally in order to undo the discriminatory categorization, within which we live, is not to negate the categorization but to understand the composite historical process and undo the incentivization and reproduction of these processes.
Therefore, bringing this view to bear on the law, it is essential to understand a category of persons as a complex of their intersectional identities and the broad spectrum of living conditions created by the overwhelming punitive force of living in a society that accepts and propagates these categorizations.
Below I provide an (evolving) matrix of the heterogeneous world of discriminated adult transgender persons, weighted by the existing dominant discrimination of a caste/ist society. I do not remark, at this point, upon the distinction between trans feminine, trans masculine and non-binary identities. The columns marked with ‘x’ locate myself in the matrix.
| Matrix of transgender life around which positive discrimination must be organized | |||||||
| Caste category => | SC (10) | ST (10) | NT/DNT (10) | OBC (08) | Inter-caste* (with either one or both parents from oppressed castes) (08) | Caste Unknown/ unrecorded** (07) | Twice-born caste (05) |
| ↓Conditions of life in seeking self-determination | |||||||
| [Transfeminine, transmasculine and non-binary transgender individuals] | |||||||
| History of homelessness and/or disownment | x | ||||||
| History of sex work, sexual exploitation++ and/or begging | x | ||||||
| History of medical transition | x | ||||||
| History of continuous migration | x | ||||||
| History of being part of erased folk communities | |||||||
| History of partial, informal or complete unemployment | x | ||||||
| History of home, hospital or criminal imprisonment | |||||||
| Born into and/or converted to minority religions | x | ||||||
| History of disability, including neurodivergence^ | x | ||||||
| Partially or completely undocumented | x | ||||||
| Sole breadwinner for self, blood and/or community dependents | x | ||||||
| History of chronic illnesses | x | ||||||
| Person with intersex variations# | |||||||
| Beyond 30 years of age$ | x | ||||||
*Inter-caste is not an identity officially recognized in India, unlike ‘biracial’ in the US. It is still required for the inter-caste child who survives to pick either parent’s caste, while also experiencing the social censure and investigation into their mixed-caste origins. Caste census conducted so far doesn’t provide for self-identifying as ‘inter-caste’.
**For many transgender and intersex persons who may be abandoned in early childhood it is impossible to know their parents’ caste; similarly persons who run away from home may lose access to caste certifications as those are issued by one’s place of birth.
++ Transmasculine persons are rarely counted in sex work, and the systemic experience of being exploited for sex by (mostly married) cisgender women across castes is not adequately understood
^Neurodivergence (Autism, ADHD and other neurodivergent identities) and its adult diagnosis/self-identification is not adequately recognized under the list of disability accommodations for adults in India
#Though intersex and transgender identities are separate, some intersex persons may be socialized in one gender but identify differently. It is essential to include this here, as intersex identities are not legally recognized in the country.
$In India, education and employment access is routinely barred by the establishment of age limits, without any real reason, except to further discrimination. For most transpersons and other marginalized groups, a chance at life begins after 30.
Now, to speak of the gender variations within, i.e. transfeminine, transmasculine and non-binary identities. In a recent judgment, passed by the Madras High Court[8] the transgender community secured a significant win by gaining horizontal reservation, i.e. reservation for transgender persons across SC, ST, OBC and other communal (vertical) classifications. This is a significant step in recognizing intersectional identities. However, a detailed reading of the order leaves one confused as to the status of transmasculine and non-binary transgender persons belonging to the same categories. This is an erasure that pre-dates even the NALSA judgment. In utilizing the comparative principle, the petitioner, a transwoman belonging to a protected caste, holds that transgender identity is being treated as a caste by the Tamil Nadu government, and affirms that while being a transwoman the presence of gender-based horizontal reservation (for cisgender women) means that the same must be applied to transgender persons as well. This is right. However, through no fault of the petitioner, the question remains: What happens to trans persons who identify as men and also belong to protected caste categories? And what happens to non-binary identities also belonging to protected caste categories? Since transmasculine identities are not recorded separately in the Tamil Nadu state’s (or any other state’s) classifications under ‘transgender persons’, and transmasculine persons from protected caste categories are historically not included in community consultations or for legal action, securing implementation will involve further evisceration of these most unrepresented and continually unlisted categories within the community. Additionally, because reservations are tied to one’s domicile status, without considering the heavy migration of transgender individuals, all transgender persons who migrate to the state will still remain uncounted. Two years were spent in receiving the order in this case.
To illustrate with an example from personal life, once again. In trying to secure a seat for an LLB programme in a college in Tamil Nadu, in one institution I was denied access to reserved seats because of being from a different state. Then I was denied on account of not being able to produce a ‘guardian’. Further to questioning that and achieving a resolution, however, I was faced with insurmountable institutional obstacles, such as how to house a transmasculine person in a women’s hostel, and yet biology ‘dictates’ that one cannot be placed in the men’s hostel. In one instance, I was told that were I to be housed in the women’s hostel, I would have to sign a declaration that I would be responsible for my safety and discipline. Apart from the illegality of the demand, it also denies the reality of abuse faced by transmasculine persons, and all institutional protections.
Facing this matrix of life, existing within a set of poorly designed processes and fundamentally flawed laws that are themselves discriminatory: how does one solve for multiple ‘x’ in anti-discrimination law?
Quite impossible, one would say. Unless one’s intent is only to theorize.
It is no surprise that there are no real takers, among even white trans legal theorists, for force-fitting transgender rights into anti-discrimination law.
I refer here to Dean Spade (2015) and Ido Katri (2017). After briefly summarizing their position, I will explain why the solution offered by them is inadequate for the scale of the problem.
Spade offers a thorough critique of both anti-discrimination law and hate crime law, as operating in neo-liberal capitalist societies, and their absolute failure to make anything better for transgender persons. In fact, Spade concurs with my position on affirmative action when he says, “…the discrimination principle has been used to eviscerate affirmative action and desegregation programs.” The current open and vile discriminatory views and laws on transgender persons that are being allowed globally in countries like the US and UK by members of the state apparatus and society is the culmination of this flawed principle and attempts to seek inclusion therein.
The solution offered by Spade, however, is a hopeful yet drastic turn towards strengthening ‘social movement’ spaces and ‘local communities’. But doesn’t quite answer the how. Here we see the absence of an understanding of the transformative value of education, especially for countries such as India, where trans communities and individuals are among the most resource poor, and very often face violence and discrimination within their own ‘local’ communities that are forced to provide for each other with little to nothing – a situation worsened by the same neo-liberal (caste) capitalism that Spade identifies as the problematic core of discrimination law. The manner in which, working to collectivize and raise resources within this system can further eviscerate members of the community and fuel hierarchies is not taken into account.
Katri (2017), though critical tends towards a more accommodating stance with respect to transgender inclusion in anti-discrimination law. Similar to Spade, Katri develops his position by expanding on how various individual trans experiences (he uses the term intrasectionality in explaining this) fair within the anti-discrimination law based on their relative position viz., race, expression, economic position and so on. After making differentiations between liberal and radical approaches to trans inclusion in discrimination law, Katri wrongly concludes that forcing the ‘performance’ of a binary gender category upon individual trans persons lies at the root of the problem and that we need to look at the in-between spaces.
Unfortunately, Katri depends on Judith Butler’s much-touted performativity theory to reiterate in a complicated way that we are all unique though existing within forced categorizations. And, contradictorily, offers a solution that seems to force upon the individual transgender person who reaches in to the legal system only further scrutiny. The problem with Butler’s performativity theory to understand ‘gender’, once it is extracted from its language barriers, is that it is simply a re-statement of an established sociological fact – that people depend on tools such as imitation and repetition to exist and resist in this society. And if we understand the complexity of intersex identities co-existing with transgender identities, the performativity theory becomes an extended theatrics of reducing life to imitations and performances. Therefore, by utilizing this framework, Katri doesn’t offer much possibility of reforming the law in the interest of transgender persons.
Further, both Spade and Katri are resolved to understand transgender identity as a category of ‘gender’ alone, adding and subtracting other identity variables or categorizations to buttress their arguments.
Here, in India too, this is a predominant view among public observers, academicians and activists. But this is not true. The transgender identity is an identity of self-determination in a world of imposed categorizations. This differentiates it from all known and extant categorizations, and also finds itself in ideological conflict with all other categorizations. A simple example: woman is a gender category. One of the constant difficulties of the women’s movement has been about how women have remained bound to their caste positions devoid of any social connection or shared principles. This is a historical reality. But the transgender reality is more complicated in that the self-determination of the identity distances (physically and psychologically) from their caste groups to create alternate communities and various forms of social communion (either through force or choice). But at the same time, operating within the caste society means that the caste identity is carried into community spaces – creating inter-caste communities and households, that aren’t entirely anti-caste, but bearing such consciousness and hitherto undocumented practices of anti-caste ideologies. The continuing pressures of alienation also create caste-endogamy-like behaviour of transfeminine and transmasculine persons marrying each other as the only accepted form of building a life, forcing the suppression of sexual orientation among transgender people. The Supreme Court’s recent affirmation of such marriages while discussing the marriage equality petition must be read as symptomatic of a caste society’s psyche.
Therefore, sociologically, it operates as both caste and gender at once, with hierarchical sub-castes, gender identities, historical sub-communities, and variegated gender expressions, informing the matrix as above. Without a clear understanding of this, all reform attempted is set to deepen the inequalities within the transgender community.
Positive discrimination (as principle and process of) laws
Both Spade and Katri, talk about visibility and invisibility of various experiences within the anti-discrimination law framework. This question of ‘blindness’ to differences appears to be a recurring question in anti-discrimination law. For instance, Solanke (2017) asks, while setting up her anti-stigma principle to determine inclusion/exclusion into anti-discrimination, “Does blindness to difference ameliorate or perpetuate discrimination?” In many ways this may be considered synonymous with Sabbagh’s (2007) preoccupations around what he refers to as the ‘negative side-effects’ of affirmation action. There are many presumptions in this question, beginning with the erasure of the fact that laws have historically been made within passively ignorant and outright punitive frameworks. Indeed, the word blindness is itself an ableist way of denying ignorance. For the purpose of continuing the argument, however, I will use the word ‘erasure’ and respond that, the extent of ‘erasure’ must hinge on what differences were are seeking to uphold and eradicate.
Therefore, where due process exists without the active consideration of historical differences, unaccounted categories and wanton inequality one cannot exercise ‘erasure’. And where rights and essential services and institutions built through these processes are continuing to practice exclusion one must exercise ‘erasure’ in favor of the excluded. To provide an example: if a process of admission to education or employment is inadequate it must be set aside and actively made simple, transparent and right without ‘erasing’ the historical injustice; if a person is being denied access to a restroom on account of the manner in which it is constructed one must exercise immediate ‘erasure’ in favor of the persons left out of the building of those spaces recognizing the injustice and life rights. The two namely, ‘erasure and ‘non-erasure’, hence must be exercised hand in hand, keeping intact the integrity of the individuals and the reform of process. To pose it as an either/or question is to practice eviscerative equality.
Indeed, the discussions above tend to all fall into an either/or situation: whether equality is possible or not, whether to include transgender persons in anti-discrimination law or not, whether to invest in reforming anti-discrimination law (or any other law) or not.
This is not helpful. Given the complexity of and the deeply rooted nature of discrimination – and attendant human right violations – one must return to the process and purpose of law. If indeed it is to secure the betterment of people, rather than to make them individual exemplars upon whom to conduct and re-conduct the experiments of law-making with no care for the devastating side-effects and permanent harm, then what we need is a complete return to positive discrimination.
The transgender community has been deprived of an entire gamut of positive discriminatory processes and provisions, through generations, starting from but not limited to reservations. In education this means, lack of fee concessions, free hostel facilities, relaxations of entry and exit processes, scholarships. In employment, it means lack of access to social security schemes, health and other benefits. In transport and mobility, it means lack of special, safe and free services. In health care, it means free healthcare, protection from experimental procedures and the securing of privacy in accessing healthcare. And so on, we must create a robust list covering all essentials of life. But it is not merely the listing of services that is required. It is the understanding that the yardsticks and processes previously applied do not work for transgender persons. One may not merely dust out an old government act or order in a similar matter and rewrite it to ‘include’ transgender persons.
This means first and foremost recognizing that the anti-discrimination law framework has not worked. Beginning as it did around the 70s in the US around the question of employment, one must deeply consider the reality that it emerged as a distraction and safety valve against demands for affirmative action in employment. To borrow an oft-repeated Latin phrase from micro-economic theory, anti-discrimination law that builds off categories, individual exemplars, established procedure and the faulty notion of institutional autonomy, is concerned only with ‘equality, ceteris paribus’. And to ensure ‘ceteris paribus’, it must eviscerate all else. Thereby resisting the transformative power of law and internal reform of the process and practice of law. This form of anti-discrimination makes ‘affirmative action’ a weak subset of its armoury, stifling the full potential of global and local positive discrimination laws.
A framework of positive discrimination laws begins with the understanding of discrimination and forced categorization as the fundamentals upon which society and law operates. Here, it becomes important to read Ambedkar’s (2017) ‘State and Minorities: What are their rights and how to secure them in the Constitution of Free India.’ It can be seen as a key to the Constitution, because he affirms that discrimination is a given, that every effort will be made to deny the reality of discrimination, and hence he is intent on the ‘how’, i.e. the process of repatriation of rights.
The principles to develop positive discrimination laws that build on the spirit, not just the letter of the Constitution, could be summarized as follows:
- Societies are discriminatory, and there are identified and unidentified, visible and invisible axes of marginalization. There are categorizations that have come into existence as part of this inherently violent act of discrimination. And there are categorizations that have come into existence as a result of resisting impositions.
- While accepting these categorizations are necessary, positive discrimination laws will be built towards securing peoples’ continuous fundamental right to self-determination. Not directed by a godly complex of magically fixing, negating or ending categorizations.
- At no point in the history of law can we claim that all categories of discrimination and all acts of discrimination have been understood or recorded. Every individual is a complex of categories and multiple conditions of life emerging out of these categories.
- Indeed, reducing discrimination to acts and categories or the tangible proof or emotion or possible stigma of discrimination alone, disregards the ways in which discrimination reproduces itself in the society. In other words, positive discrimination sees discrimination as an active and continuing human right violation that does not require further proof.
- Recognising discrimination in law in this manner – as intrinsic and self-reproducing – separates the individual from the community, without loss to either. The law, here, is self-reflective and holds that individuals belonging to oppressed communities are carrying the burden of time. It is for positive discrimination laws to absorb and place upon the institutions the cost of lost time.
- When any category (or sub-category) establishes expropriation from rights, representation and resources, all processes that have hitherto failed to recognize their existence and identity are to be reviewed and revised to correct the failure. This review and revision cannot under any circumstance be carried out without the representation of the community.
- Further, the cost of this failure cannot be placed on the individual claimants from the community. The cost of the State’s delays in initiating a representative process must be borne by the State, for as long as the State and society benefits from these conscious delays.
- If the State and institutions cannot establish, with publicly verifiable data over a consistent period of time, that substantive rights and resources have been transferred to discriminated peoples, all protections are to continue (if not expanded). The State cannot revert to depending on singular or token representatives or exemplars in a system that has hitherto been functioning as a mere lottery for rights and protections.
- Positive discrimination, to reiterate, is not concerned with the visible or invisible, but with the historical and the factual, and therefore with the intent of incentivizing the correction of those injustices rather than merely punishment of immediately visible perpetrator.
- Positive discrimination necessitates that laws, rules and institutions pertaining to discriminated categories of people are drafted by the widest representation of affected persons, with every dissent recorded for public knowledge and transparency. If these representatives are not elected representatives or members of the executive, the State must bear the cost of reimbursing these representatives for their work.
- Positive discrimination laws will mandate the State and its machineries to expend resources for educating the public on the historical necessity and value of positive discrimination to ensure the easing of misinformation and the idea of people ‘stealing’ resources. In the same breath, where a sense of scarcity is likely to invade the minds of people due to new challenges, positive discrimination laws shall mandate a rational increase of resources towards protecting the fraternity between people, irrespective of short-term fiduciary strains.
- In fundamentally discriminatory societies, the scientific basis for applying reservations, subsidies, relegating funds and investing in institutions for positive discrimination must be made public. The scientific basis of such distribution must NOT be defined or weighted by the mere number of people, but by the historical expropriation of rights and resources, the historical distance from power and opportunities of a good life.
- Most importantly, positive discrimination laws shall not be concerned by the autonomy of an institution involved in the serving of public good or securing of people’s rights. To that extent, private institutions that provide employment may be considered partially tied to serving public good, and therefore concerned with the securing of people’s right to life. In discriminatory societies, such as India, there is only one institution that has given to itself unlimited and indiscriminate powers of autonomy, and that is a caste panchayat. In a fundamentally discriminatory society, all institutions may be considered accountable for participating in discrimination, unless consistently proven otherwise.
- As a consequence of being unconcerned by the strawman of institutional autonomy, positive discrimination laws will be framed with the intent of guaranteeing the greatest mobility and access to the most oppressed in the society in procuring their rights to self-determination.
- And finally, positive discrimination laws will, in theory, process and practice, be committed to establishing equality without the evisceration of the mind, body and material conditions of those discriminated. Positive discrimination laws recognise eviscerative equality as a greater threat to the well-being of a society than the hurt sentiments of those who discriminate.
No doubt, many of the points above are restatements of various views. But considering the nature of and the expanse with which the ‘anti-discrimination’ fervour has caught people’s minds, without contributing in any substantive way to reducing conflict among peoples, establishing a concrete transfer of resources or easing the discrimination of the most oppressed, a restatement is required. Rather than throw the entire pursuit out into the abyss, it would be appropriate that those invested in a desire to end discrimination be concerted in redirecting their investment towards furthering and propagating the need for positive discrimination and laws that consistently bear the language, process and spirit of positive discrimination – locally and globally.
‘Ending’ discrimination in letter is not the end to which the tool of law can be best used. Redirecting all available tools and processes towards prioritizing positive discriminations may in fact be the last available use of the law, since all else has predominantly given us conflict and war.
Bibliography
Thich Nhat Hanh. 2023. Old Path White Clouds: Walking in the Footsteps of the Buddha. Full Circle Publishing, New Delhi
B R Ambedkar. 2018. The Buddha and His Dhamma. Samyak Prakashan, New Delhi
Anastasia Piliavsky. 2015. The “Criminal Tribe” in India before the British. Comparative Studies in Society and History, 57 (2), pp. 323-354
B R Ambedkar. 1917. Castes in India: Their Mechanism, Genesis and Development. Bheem Patrika Publications, Jullundar.
Jessica Hinchy. 2019. The long history of criminalising Hijras. Himal South Asian. Accessed from: https://www.himalmag.com/comment/long-history-criminalising-hijras-india-jessica-hinchy-2019
kothazham. 2019. Category-wise rights for trans/gender minority communities. Prabuddha: Journal for Social Equality, 4, pp. 26-48.
Sarah Gandee. 2020. (Re-)Defining Disadvantage: Untouchability, Criminality and ‘Tribe’ in India, c. 1910s–1950s. Studies in History, 36 (1), pp. 71-97.
Ayanabha Banerjee. 2024. SC Notice to Centre, UP & Gujarat Govts Over Termination of Transgender Teacher Post Identity Disclosure. The Mooknayak. Accessed from: https://en.themooknayak.com/lgbtq-news/sc-notice-to-centre-up-gujarat-govts-over-termination-of-transgender-teacher-post-identity-disclosure
C Parvathamma & S Sharadamma. 1965. Medical Sociology: Some Problems for Study. The Economic Weekly.
Tarunabh Khaitan. 2015. A Theory of Discrimination Law. Oxford University Press.
Iyiola Solanke. 2017. Discrimination as Stigma: A Theory of Anti-Discrimination Law. Hart Publishing.
Deborah Hellman & Sophia Moreau (eds). 2014. Philosophical Foundations of Discrimination Law. Oxford University Press.
Shay-Akil Mclean. 2020. Social Constructions, Historical Grounds. Practicing Anthropology, 42 (3), pp. 40-44
Dean Spade. 2015. Normal Life: Administrative Violence, Critical Trans Politics & the Limits of Law. Duke University Press.
Ido Katri. 2017. Transgender Intrasectionality: Rethinking Anti-Discrimination Law and Litigation. Univ. of Pennsylvania Journal of Law and Social Change, 20 (1), pp. 51-79
Daniel Sabbagh. 2007. Equality and Transparency: A Strategic Perspective on Affirmative Action in American Law. Palgrave Macmillan.
B R Ambedkar. 2017. States and Minorities: What are their Rights and How to Secure them in the Constitution of Free India. Kalpaz Publications, Delhi.
[1] See https://archive.org/details/ManuSmriti_201601/page/n27/mode/2up
[2] During the period roughly classified by some historians as predominantly ‘Muslim’ rule, there are records of one group of transfeminine persons (historically classified as Hijras) being employed as palace guards due to their ‘emasculated’ state of being. Some point to individual members of the community having gained ‘access’ to corridors of power in this manner. However, this does not explain the overarching rules and laws (which predates individual rulers or kingdoms) guiding the society’s perception of and transgender people’s position in the society. The Bihar state government in 2018 is reported to have considered employing transwomen as ‘guards’ for women and child shelter homes. One may safely presume that the rationale was the same.
[3] Writing in 2019, I have collated the issues and the immediate critiques of the NALSA judgment and the processes undertaken in its aftermath that led to the Transgender Act 2019. Here too I have raised concerns with anti-discrimination. See, kothazham (2019).
[4] See https://www.deccanherald.com/india/transgender-teacher-removed-from-services-due-to-sexual-orientation-moves-sc-2832260
[5] See https://www.casemine.com/judgement/in/5ac5e3264a93261a1a739419
[6] See https://english.varthabharati.in/india/transgender-prisoners-must-be-treated-at-par-with-other-inmates-says-sc-panel-on-prison-reforms#google_vignette
[7] Pattakka Suresh Babu v. State of Kerala (Crl. M.A No. 3/2023 in Crl. A. No. 740/2018)
[8] Rakshika Raj v State of Tamil Nadu, in W.P. No. 6967/2022 & W.M.P No. 7002/2022