Note: This article is based on the findings from the study, Gendering of Development Data in India: Beyond the Binary by Brindaalakshmi for the Centre for Internet & Society as part of the Big Data for Development Network supported by IDRC, Canada. Although the study was published before the release of the rules of the Transgender persons (Protection of Rights) Act 2019, this article includes an analysis of the impact of the new law on the rights of transgender persons in India.
In 2020, the rights exclusions faced by transgender persons in India worsened during the national lockdown due to COVID-19 pandemic. Transgender Persons (Protection of Rights) Act 2019 passed to protect the rights of transgender persons is likely to further discriminate against transgender persons and their access to COVID-19 vaccination. Lack of data on transgender persons has been often stated as a reason for lack of budget allocation and targeted programs to address their needs. However, the problem lies in the inability of transgender persons to enter data systems due to the exclusionary designed systems.
In the early 2000s, digitisation of data systems was introduced in India assuming it to be the ideal solution to remove existing offline challenges and enable more people-centred systems. However, digitisation seems to have replicated existing challenges for transgender persons with respect to entering data systems in order to access their rights. In several cases, digitisation has further amplified the complexities involved.
The exclusions faced by transgender persons were supposed to change with the passing of the NALSA Vs Union of India verdict 2014, which recognised the right of every individual to self-identify their gender as male, female or transgender. This verdict detailed out nine directives to the Central and State governments to implement for the inclusion of transgender persons. However, all states did not implement the directives and the situation continued to remain bleak. Further, despite severe oppositions from the transgender community, the Transgender Persons (Protection of Rights) Act was passed in 2019.
Historically, transgender persons have struggled to enter public databases due to lack of identification (ID) documents in their preferred name and gender. One look at the rules of the Transgender Persons (Protection of Rights) Act 2019 makes it amply clear that this situation is not likely to improve with merely digitising the process to change ID documents.
Here’s why the challenges of transgender persons are likely to persist through dependency of existing ID documents, tedious legal process and medicalisation.
Dependency on existing ID documents
Prior to the passing of the Trans Act, there was no uniform process across India to change one’s name and gender on ID documents to one’s preferred name and gender. This process would vary for different ID documents across different states. The rules of the new law detail out the process required to change any individual’s ID documents. However, this process continues to demand an existing ID document in one’s given name and assigned gender. It is common for transgender persons to flee their homes due to stigma, discrimination and abuse that they face from their natal family for being transgender. While fleeing for their lives, many do not leave home with an ID document and this impacts their ability to enter data systems in their preferred name and gender.
While fleeing for their lives, many do not leave home with an ID document and this impacts their ability to enter data systems in their preferred name and gender.
Tedious legal process
Prior to the new law, with or without an existing ID document, individuals had to deal with a tedious offline legal process to change their name and gender on different documents. Respondents of the study noted that information on such processes, digital or otherwise is usually available only to individuals who are educated or associated with a non-profit organisation working with the community. This means only those with access to human assistance can become part of the system. The challenges are higher for individuals with neither. However, the ultimate hurdle with changing documents comes while facing government officials. Respondents noted that not all officials were informed about the NALSA verdict or the paperwork for name and gender change.
With or without digitisation, the demand for an existing ID document in a person’s given name and assigned gender means the burden of proof continues to be on the individual, in order to even become eligible to access constitutionally sanctioned human rights.
The rules of the new law include an online option to change one’s name and gender. That said, the tedious legal process continues even with the attempt to standardise the name and gender change process in the rules. Changing name and gender in one’s identification process requires the individual to undergo a two-step verification process. Both steps involve submitting an application in the prescribed format to the ‘District Magistrate in person or by post till online facilities are developed by the State Government concerned’.
Step 1: On verifying this application, the District Magistrate will issue a certificate of identity and a transgender identity card to the applicant. State governments are expected to have a register for the issuance of certificate of identity and the transgender identity card. Based on this transgender identity card, the said individual can change their name and gender to transgender on all other identification documents including Aadhaar.
Aadhaar is a 12-digit biometric-based individual identification number issued by the Government of India.
Step 2: In order to change one’s gender within the binary of male or female, individuals are expected to go through another application with a certificate from a medical practitioner. This requirement was deemed illegal in the NALSA verdict.
Medicalisation of the ID change process
Arbitrary demand for an SRS (sexual reassignment surgery) certificate by different government departments to change identification documents has been a challenge for transgender persons even prior to the passing of the Trans Act. The medicalisation of the ID change process was one of the primary concerns of the transgender community with respect to the new law. Section 7 of the Trans Act requires individuals to undergo surgery in order to change their gender within the binary genders of male and female. The final rules of the law do not mandate a surgery; however, individuals are still required to submit a medical certificate. Mandating a medical certificate to validate one’s gender identity continues to violate any individual’s right to self-identify their gender. A petition has been filed in the Supreme Court of India challenging the constitutionality of this new law. (Note: Two of the petitioners were respondents in this study.) It is safe to assume that this will continue to remain a roadblock for transgender persons till a decision is made on the petition.
Mandating a medical certificate to validate one’s gender identity continues to violate any individual’s right to self-identify their gender.
Prior to the passing of the new law, some Indian states also had a screening committee to issue transgender identity cards to transgender persons. Often transgender individuals were subjected to horrific human rights violations during this process due to the need to prove their identity. “The screening committee used utterly inappropriate methods to make their decisions: such as touching the genitals of a pre or non-operated trans woman to check for signs of arousal. If it did, the committee did not accept the individual as a transgender. The method used for screening amounts to harassment and has no place in determining the gender identity of individuals.”
Respondents noted that digitisation did not remove these human rights violations to make it easier for transgender individuals. Given the challenges of stigma, discrimination and procedures involved, transgender persons have been changing their name and gender only on documents with a less tedious process, note respondents of the study. Previously, online process was not available to change all ID documents.
Effectiveness of a digital ID change process
Digitisation of the ID change process can remove the stigma and discrimination faced by transgender persons during an offline change process. However, the effectiveness of a digital process is questionable given the current state of literacy, digital literacy and access to internet among transgender persons.
The replication of challenges begins with the assumption that digital processes are the best way to collect data on transgender persons. Both level of literacy and digital literacy are low among transgender persons in India. According to the report, Study on Human Rights of Transgender as a Third Gender, nearly 50% of transgender persons have studied less than Class X (less than secondary education). This has a significant effect on their access to rights.
Similarly, access to mobile phones is assumed to bridge this access gap to online systems and services. However, observations from respondents of the study suggest otherwise.
“A lot of transgender people do not have smartphones. The small section that does own smartphones uses mostly WhatsApp as they can send voice messages and not have to text to communicate.”
“Only 10% to 15% of the transgender community uses any digital system because they are not really savvy or comfortable with using a smartphone to access digital platforms.”
Digitisation and a digital ID continues to make data a problem to be solved…
With or without digitisation, the demand for an existing ID document in a person’s given name and assigned gender means the burden of proof continues to be on the individual, in order to even become eligible to access constitutionally sanctioned human rights. With increased digitisation of all systems, it is important to address the struggles of a marginalised population group like transgender persons to enter data systems to access their rights. Far from viewing digitisation or using a digital ID as the universal solution, there is an urgent need to question the impact of interoperability of data across different data systems. Apart from posing questions around privacy, especially in the absence of a privacy law, interoperability continues to replicate the existing challenge. What is the social cost of such interoperability for an already marginalised community?
Multiple documents are necessary for transgender persons to navigate the social stigma associated with their gender identity, be it to avoid being outed to family and friends about gender identity or HIV status, losing their eligibility for insurance claims procured in their assigned gender, property rights which may be lost with changing gender, among others. Multiplicity of identities get replicated in digital identification systems.
Given the complex challenges faced by transgender persons, disconnected offline data systems made it easier for individuals to access their rights. These offline systems across government agencies allowed people to have different terms of engagement with government departments. However, by digitally linking these data systems, the information given by the same person now appears as a data problem to be solved.
Given the complex challenges faced by transgender persons, disconnected offline data systems made it easier for individuals to access their rights.
This has been the case with accessing HIV related services. Due to social stigma, it is significantly difficult for transgender individuals to reveal their identity in HIV testing centres. Often there is negligence from the hospital or testing centre staff with respect to revealing their identity or HIV status. To avoid being traced, individuals often use identification documents with different name and gender at various points of this process.
In 2015, National Aids Control Organization (NACO) mandated the linking of the digital ID, Aadhaar to access HIV treatment. Due to apprehensions about their Aadhaar data being breached after multiple instances of data breach in the country, there were cases of individuals discontinuing their HIV medication in many parts of the country.
Rule 5 (7) of the Transgender Persons (Protection of Rights) Act states that, “Any official document wherein gender, name and the photograph of transgender are revised based on the said certificate of identity, shall bear the same serial or reference number as in the original official document of such transgender person who seeks change in the name or gender or both in the official documents.”
In the absence of a privacy law, the serial/reference numbering of transgender persons can pose serious threats to the privacy of transgender persons, a marginalised population group. The Supreme Court verdict in 2018 validating the use of Aadhaar, exposes tansgender persons to vulnerabilities and further marginalisation. Aadhaar as a system identifies the same person across all databases. However, linking other documents that have been changed to preferred gender identity to Aadhaar identifies them as different individuals. Such digitisation without addressing the inherent systemic flaws including various forms of discriminations, only leads to replication of offline challenges by digital systems. Evidently, digitisation and a digital ID cannot be the universal solution to address the exclusion faced by all.