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A Legal Fiction

By excluding a wide spectrum of transgender realities, this amended definition creates a codified legal fiction of a ‘transgender person’: something that the law treats as existing, even though it is clearly false.

With this amended definition, if a person’s gender identity is not the same as the one that was assigned to them at birth, but they do not fit into this amended definition, they are not recognised as a ‘transgender person’ under this Act.

That means many transgender women, transgender men, non-binary people and people with other gender diverse and fluid realities are not ‘transgender persons’ under this Act because their bodies neither fit into the listed physiological requirements nor the mentioned socio-cultural identities; though their gender has, as a matter of fact, transitioned from what was assigned to them at their birth.

On the other hand, people who do fit into the listed categories but have the same gender as the one which was assigned to them at birth are considered ‘transgender’, even if their gender is the same as the one assigned to them at birth.

Limited and Biased Objective

The Statement of Objects and Reasons for the Amendment reflects the arbitrariness of the new definition, which has no logical or rational nexus with the objective of protecting transgender people. As per the Statement, the legislative policy only recognises a specific class of transgender people, who it claims to be genuinely oppressed people in ‘actual need of protection’ without any evidence or reasoning.

However through this clarifiction the statement implies that it does recognise the existence of other diverse sex and gender identities, and gender fluidity outside the amended definition, even if it is only to ensure that the rights, alleged privileges, and protections that this Act confers can not be extended to any transgender people outside the amended definition who face discrimination or social exclusion due to their transgender identity.

What now for ‘real’ transgender people?

This fictional definition, if not recognised for what it is, might get entrenched as a naturalised legal common sense, enough to monopolise legal intelligibility regarding gender diversity.

Transgender identities are not institutional. Transgender realities and rights are not contingent only on this one amended definition, which is a legal fiction. Hence, it must be treated as such. Constitutional guarantees operate independently of legislative enactments. This enactment with a limited scope can not negate the reality that those people’s transgender identity, entitlement to constitutional or human rights, or, for that matter, any other statutory rights that do not explicitly rely on this Act.

Transgender realities are beyond a single enactment of their rights. The act needs to be decentered and not treated as a definitive source of legal identity or personhood. Because, though fictional, it is the only legislative definition of ‘transgender person’, and if the scope is misinterpreted, then it may have critical implications and a misinterpretation of the intended scope of the Act.

In this regard, legal and advocacy strategies must also avoid associating all transgender rights claims only within the Act’s framework. Furthermore, given the diversity of transgender identities and realities, challenging the constitutionality of the Act must be done only with regard to specific, diverse claims, and not by conflating complex issues into a consolidated claim that risks blanket rejection of all concerns.

One Legislation is not the Absolute Reality

By recognising some forms of gender variance and excluding all others, this Act now regulates a fictional category. The identity, dignity, life, and existence of any person cannot be denied by any fictional legal construct. NALSA judgment or not, the Act or not, the existence of each and every transgender person is a reality, and their gender identity, expression, and dignity is a fundamental right and a human right.

The enactment may attempt to regulate and medicalise certification and recognition, but it does not and cannot institutionalise the hearts and minds of people. It cannot certify how we experience our lives. The intimacy we have with ourselves and the world is beyond any enactment and is so real and powerful that no fiction, even if it is enacted, can regulate that.

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