Transgender Bill 2019 is About Disciplining Minorities and Upholding a Patriarchal Family Structure

The government’s Orwellian viewing of the citizen’s body has been explicitly demonstrated time and again, be it with regards to compulsory enrolment for Aadhaar, or laws against abortions¹ and committing suicide.² That the right to one’s body is not absolute, then, renders the body to open to social disciplining as per dominant state ideologies. 

This is demonstrated by the recent passage of the Transgender Persons (Protection of Rights) Bill, 2019 in the Rajya Sabha on 26 November 2019. Although hailed by the government as the long-awaited reform which would end all discrimination against transgender persons, the bill met severe opposition from the transgender community. 

Opposition to the bill stems largely from the rigidity with which it views trans identity, and gender overall, as well as its biased and underwhelming wording. This not only makes the bill a rather flimsy deterrence mechanism, but also devalues the kinship ideals that the transgender comunity chooses to opt into. By making the right to self-identification subservient to government surveillance and bureaucratic red tape, the bill attempts to insidiously control and discipline trans bodies in a way that any deviation from the norm is contained within the ambit of dominant identity structures.

Moreover, akin to the Transgender Rights Bill, is the Surrogacy (Regulation) Bill, 2019, which seeks to ban commercial surrogacy in India. Cited to be for the benefit of women, the bill seems to be unaware of ground realities and takes away the constitutional right of women to make reproductive choices with freedom, liberty, and agency. 

However, under the garb of protecting minorities, both bills attempt to control nonconforming and non-biological family relations in a manner that keeps them subordinate to the patriarchal family structure. That is, by denouncing their right to self-determination, and thus, their respective systems of non-biological kinship relations, the government is able to coerce conformity to existing gender binaries and their expected roles within the family unit. 

In the following reading list, we explore how the government upholds the patriarchal and heterosexual family, and deliberately discounts other models of identity, kinship and intimacy.

Regulating Dominant Frameworks of Identity

Justin Jos argues that the government furthers its own ideas of how identities should be constituted by using rigid linguistics to define minority identities. Looking at the phrasing of the definition of transgender persons in the Transgender Persons Bill, 2016, Jos notes that the bill does not uphold transgender persons as persons consciously self-determining their gender identities. The use of broad definitions and terms shows the government’s apathy and disinterest in acknowledging different systems of determining identities. For instance, the bill dilutes the agency of those with intersex variations by clubbing them under the term for transgender persons. Such a limiting phrasing of important legislation affects the understanding of these persons by viewing them as a function of dominant gender identities, rather than as autonomous identities independent of pre-existing structures. This invariably assists the perpetuation of said dominant structures. 

The bill does not honour the rights of transgender people to self-determine their gender identity as any of, male, female or transgender. Many sociocultural identities such as Shiv Shaktis and Jogappas are also removed from the definition, which were mentioned in the previous private member’s bill. The implication of the weak drafting of this major provision is that it restricts the understanding of a transgender identity to the gender binary of male and female.

Further, Sayantan Datta observes the details of the tedious procedure required for the certification of a transgender person’s identity. He argues that the constitution of a District Screening Committee assumes an implicit authority to “certify others,” underscoring the lopsided identity–power relations, wherein the state’s identity and its perception of gender is placed as superior to that of its subjects and can only exist if and how its allowed to do so by state institutions. 

The bill of 2016, with its proposal of the District Screening Committee, makes my gender a nail in my coffin. It conflates my construction to my genitalia (the mutilated offspring of the myopic dystopic social sexualisation), and takes me to the altars of oppression to strip me, not only of my clothes but also of my revolution. My body here becomes the space where my identities shall never be constrained, but my body shall also become the object for voyeuristic annihilation of the unlimited potential it holds in its limited existence. I am dead, genocided into a performance I have long been trying to rid myself of. The District Screening Committee Clause also fractures us through identities. The idea of transgender persons befooled into thinking of themselves to be powerful with the right to “certify” others, break down the collectivisation of the community and separates the fight for equality based on intra-identitarian power politics. Queer identities have never been singular, but in these fractures, a new game of oppression awaits when committees put some persons as “more trans” than others.

Regulating Dominant Ideas of Kinship Relations

Sayantan Datta also argues that the bill is problematic given its blatant disrespect towards the agency of trans people and the distinct kinship system through which they form relations with each other. Here again, the state perpetuates its own idea of what constitutes kinship ties, placing emphasis on biological relations. 

The other complex thing that the cisnormative hypermasculine system has never been able to accept is the disavowal some of us show towards our bloodline biological families which are, more often than not, abusive on many fronts, both within and beyond their own structures. The guru-chela system, and any other forms of how we find our own kinships and solidarities are unsettling to the normative society which relies on systematic power structure and dominance.

Alok Prasanna Kumar notes that the Surrogacy (Regulation) Bill, 2016 reinforces paternalistic conceptions of what women can(not) do with their bodies, especially through its differentiation of altruistic and commercial surrogacy. Tracing the bill to its founding document, the 228th Report of the Law Commission of India, Kumar observes that although the report called for regulation of surrogacy, it disallowed for any commercialisation of the process without justifying its stance. This was particularly suggestive of the government’s views on how they conceptualised women and their body.

... The belief that making a profit out of this activity is somehow unacceptable suggests that some forms of women’s labour are clearly less morally acceptable than others. The report clearly favours “altruistic” surrogacy over “commercial” surrogacy ... The term “commercialisation” in the context of surrogacy is somewhat curious. It suggests a distaste of women using their bodies in a particular manner to make a living.

The issue, though, is not only of recognising women’s agency with respect to their bodies, but also with respect to their kin. Sneha Banerjee engages with the Assistive Reproductive Technologies (ART) industry as a whole and illustrates the state’s hypocrisy in controlling familial relations and women’s reproductive agency. She observes that while, traditionally, the state has always viewed fertility of the population as a problem to be solved and controlled, it has looked positively at ARTs. This finds its root in the worldview that gives primacy to biological lineage systems. 

However, the same state that has allowed ARTs to be a “quasi-legal industry,” has ignored the voices of women who turn towards surrogacy (which would ideally be part of the ART industry) as an alternative means of employment. Legal structures have not provided a space for women who are often socio-economically vulnerable, to claim protection or rights that would otherwise have been open to them had they been traditional service providers. This endorsement of ARTs, without an acknowledgement of surrogates and their role in enabling couples to have children, shows the balancing act of institutions in retaining notions of a "proper" biologically-linked family without compromising on ideas of mother/womanhood. 

In other words, commercial surrogacy without artificial insemination would effectively make the woman acting as a surrogate a “prostitute” as well as a “baby-seller”; but if it involves artificial insemination, she becomes only a “baby-seller”. Naturally, in a patriarchal setting such a practice would be abhorrent, but nonetheless would continue to happen clandestinely even if on a very small scale, since there would always be women who would choose, or be forced to act as surrogate mothers because of their circumstances and there would always be couples willing to go to any length to have their “own” child.

Dalia Bhattacharjee observes that regulation surrounding women who enter commercial surrogacy is essentially a “nationalist project” with the protection of women’s wombs as its central mission. This stems from an inherent viewing of the mother and the mothering body as a space that is personal and pure. In such a viewing, the woman is not allowed the right to make choices regarding her body, and so the state does not consider the surrogacy arrangement as a form of labour. 

This patriarchal conception of women and their reproductive agency informs the moral authority with which the state constructs its legal framework, in turn, regulating and ordering those who reside within it as well as the relations they form. 

Commercial surrogacy poses a challenge as it allows women to utilise their wombs to earn money which contradicts imagining wombs as “pure spaces.” This, in turn, contests the sacredness of the concept of motherhood as an institution. Altruism obliges women to fulfil their duties as mothers and stereotypes them as “naturally” mothers which should not be interfered with by introducing commercial transactions.

Arijeet Ghosh and Diksha Sanyal observe that the Surrogacy Bill, as well as the Transgender Bill, perpetuate a rather narrow vision of the “family” entirely based on hetero-patriarchy and caste purity. With legal recognition only given to monogamous, heterosexual, and conjugal relationships legitimised by the institution of marriage, non-biological kinship networks such as Hijra gharanas, same-sex couples, those in polyamorous relationship, or fluid friendship networks are excluded from accessing civil rights that marriage provides. This requires a legal re-envisioning of the concepts of family and intimacy. 

A vision of the family, which is broad and inclusive and is based on recognising functional aspects of families rather than their form, that is, what families do rather than what families look like, would serve as a useful template when lawmakers are drafting legislations that regulate intimacy and dependency. Recognising that families are diverse, complex, and dynamic means providing individuals with the freedom to nominate/designate their beneficiaries wherever possible and not assuming ties of blood and conjugality as the only relevant ones. In addition, it would also involve closely evaluating factors of economic and emotional interdependence and interpreting them flexibly depending on the legislative objective and situation. For instance, in some situations, co-habitation and duration of the relationship could be a relevant factor, but in other cases, it may not matter. Hence, maintaining flexibility as opposed to pursuing a one-size fits all policy is essential and could in the future, legitimise families of choice.