INTRODUCTION
India has always been known for its cultural diversity and pluralism but when it comes to gender identities our laws are only slowly evolving towards legally recognising and understanding them. In the recent years, talks about gender identity have gained much needed visibility in India as for the longest time, Indian legal system has only recognised people as either male or female. But not everyone fits neatly into these categories as gender is a far more complex phenomenon. Many individuals identify themselves as non-binary– that is they may feel like both, neither or entirely something different which does not fall under the conventional categories of “male” and “female”. They are challenging this binary and calling for recognition, respect and legal rights. While the Indian mythology has already mentioned about gender fluidity, our society and legal framework is just beginning to evolve.
The 2014 Supreme Court decision in NALSA v Union of India was a landmark moment for gender rights in India.[1] It introduced the concept of self-identification and recognised a “third gender”. However, even this decision failed to encompass the wide range of gender identities especially those which exist beyond the binary of male-female. Then what is the current situation of non-binary individuals today?
WHO ARE NON-BINARY PEOPLE?
Non-binary is an inclusive term for people whose gender identity doesn’t exclusively align with “male” or “female” gender. They might identify as genderqueer, agender, genderfluid, or somewhere else entirely on the gender spectrum.
This concept isn’t anything new to Indian culture. For instance, Ardhanarishwar, a form of Lord Shiva that is half-male and half-female symbolising the blend of masculine and feminine energy.[2] Even communities like Hijras, who have been part of Indian societies for centuries represent a break from the binary gender norms.[3] It is unfortunate that such a rich cultural understanding of gender diversity has been wiped out due to the colonial laws and post-independence legal developments.
The NALSA Judgment: A Landmark for Gender Rights in India
In National Legal Services Authority v Union of India, The Supreme Court held that the right to determine one’s gender identity falls under the ambit of Article 21 of the Indian Constitution- The right of life and personal liberty.[4] The court mentioned that, gender identity is an integral part of an individual’s dignity and any discrimination based on it is a clear violation of Articles 14, 15 and 16, which ensures equality and non discrimination.
This judgement marked a significant advancement as it legally recognised the right of individuals to identify themselves as “third gender” and directed the government to ensure their welfare. However, the judgement was primarily focused on the rights of transgender individuals and did not address the rights and legal status of non-binary individuals in particular.
THE TRANSGENDER PERSONS ACT, 2019: Does It Address Non-Binary Identities?
For the implementation of the NALSA judgement , the government introduced The Transgender Persons (Protection of Rights) Act, 2019.[5] While the act includes terms like “genderqueer” within it’s definition of a transgender person, it does not provide a clear definition or recognition of non-binary identities as a distinct legal category.
One of the main criticism of the Act is it’s requirement for a certificate of identity issued by a District Magistrate.[6] This acts as an restriction on the right to self-identity, a principle which was the heart of the NALSA judgement. For a non-binary individual who may not identify as “transgender” in the traditional sense this issue becomes particularly challenging. Additionally, most official documents such as passports, Aadhaar and voter ID cards only offer three options- Male, Female, or Transgender. This becomes an issue for a individuals identifying as agender or outside of these categories as it leaves them with no option for appropriate recognition.
PRACTICAL IMPLICATIONS OF NON- RECOGNITION
When law fails to acknowledge an individual’s gender identity, it has wide-ranging consequences on their day to day life. Some of the real life challenges faced by non-binary individuals are as follows:
- Inability to obtain official documents reflecting their true gender identity.
- Workplace discrimination with limited or no legal protection.
- Difficulty in accessing respectful and inclusive healthcare services.
- Exclusion from gender-specific laws, including those related to sexual harassment, marriage, and inheritance.
Although laws like the Transgender Persons (Protection of Rights) Act, 2019 aims at recognising and safeguarding the rights of “transgender” community but they largely overlook the needs of non-binary people. This leaves them in a legal loophole where rights are recognised on paper or theory but rarely uphold in reality.
GLOBAL PROGRESS IN RECOGNISING GENDER DIVERSITY
Around the globe, various countries are adopting inclusive gender policies to support gender diverse communities:
- Canada and Germany allow their citizens to mark their gender as “X” on passports and official IDs.
- Argentina not only recognises non-binary identities but also allows “self-identification” of individuals across all official documents.[7]
- Nepal, a fellow South Asian country was amongst the first to acknowledge a third gender in government records.[8]
These examples show that inclusive and respectful legal system can be implemented for the accomodation of all gender identities.
INDIA’S NEXT STEPS FOR GENDER-INCLUSIVE REFORM
What steps can India take to ensure better legal recognition and protection of non-binary individuals?
- Revise or Amend laws: By revising and amending the Transgender Persons (Protection of Rights) Act to clearly include non-binary individual’s Identity as distinct and valid.
- Inclusive Identity documentation: Introduction of gender neutral option such as “X” on all official forms and identity documents.
- Public Awareness and Training: Educating public officials, healthcare providers and law enforcement personnel on non-binary identities and their rights.
- Gender-Neutral Legal Language: Revising and reforming personal and criminal laws using inclusive language that moves beyond gender binary.
- Community Involvement: It should be ensured that non-binary individuals are consulted in the creation of policies which would affect their lives.
CONCLUSION
Legal recognition is just not merely formal but it is essential for ensuring a dignified life with access to equal rights. While India has taken commendable steps towards recognising and protecting the transgender individuals and their rights, somewhere down the line non-binary individuals still find themselves unacknowledged by the legal system.
To truly uphold the constitutional principles of equality and liberty, India must broaden it’s legal framework to include non-binary individuals.
It’s not just adding another check-box in the forms but actually accepting individuals as they are and giving them legal and social identity so that they can live their lives with dignity, authenticity and freedom.
Author(s) Name: Sania Arif (Babu Banarasi Das University, Lucknow)
References:
[1] National Legal Services Authority v Union of India (2014) 5 SCC 438.
[2] Ruth Vanita and Saleem Kidwai (eds), Same-Sex Love in India (2nd edn, Macmillan 2008).
[3] National Legal Services Authority v Union of India (n 1) paras 19-22, 51-53.
[4] NALSA (n 1) paras 19-22.
[5] The Transgender Persons (Protection of Rights) Act 2019, No 40 of 2019.
[6]ibid s 5-7.
[7]Centre for Legal and Social Studies (CELS), ‘Argentina: DNI Non-Binary Gender Marker’ (CELS, 2021) https: //www.cels.org.ar
[8] Human Rights Watch, ‘Nepal: Landmark Gender Recognition Ruling’ (HRW, 2007) https://www.hrw .org
