JURISPRUDENTIAL ANALYSIS OF TRANSGENDER BILL 2019

RESEARCH PAPER

SUBMITTED BY: SUBMITTED TO:

ARUSHI SINGH DR. AVINASH KUMAR

SEMESTER- X- ‘A’ ASSISTANT PROFESSOR,

LAW ROLL NO. 859

NATIONAL UNIVERSITY OF STUDY & RESEARCH IN LAW, RANCHI

Table of Contents

Introduction----------------------------------------------------------------------------------------------1

Critical Legal Studies

1 Transgender Bill 2

The Transgender Bill Legitimates the Cis-Normative ‘Normal’-------------------------------2

The Legislation-Creation Process should have been Empathetic------------------------------4

Bibliography----------------------------------------------------------------------------------------------7

Books-------------------------------------------------------------------------------------------------7

Journal Articles--------------------------------------------------------------------------------------7

Online Resources-----------------------------------------------------------------------------------7
 Introduction
This research paper shall analyse the Transgender Bill, 2019 from the perspective of Critical
Legal Studies (CLS) and shall seek to investigate firstly, whether the Transgender Bill truly
serves as a break from the past with respect to the previous marginalisation of the trans
community by the state or just reiterates the cis-normative and secondly, whether larger
consultation and empathy by the government towards the trans community during the
formulation stage of the legislation could have led to a different conclusion than the status
quo seen today.

In order to answer these questions, a short explanation of both the Transgender Bill and of
Critical Legal Studies will be required to be undertaken to provide a background to the study.

Critical Legal Studies

Critical Legal Studies was a school of thought which emerged in the USA in the 1970s. It
looked to deconstruct the assumptions made by more traditional schools of thought and were
considered a spiritual successor to the legal realists.1 CLS’s central pillar could be
encapsulated in the catchphrase “all law is politics” which represented that there is no
objective judicial truth to the law.2 Legal doctrines are essentially “indeterminate” and
therefore in order to reach a conclusion, law-creators must fill the gap with extra-legal
reasoning which are socio-political in nature, therefore the seeming objectivity of the law is a
falsity.3 This indeterminate nature of law allows for those in power to interpret the law in
ways that serve their best interest and not necessarily the interest of the public at large. Hence
the law is not neutral in reality, even though on face value it may be, and instead serves the
interest of the powerful,4 for example, several laws regarding workplace timings may facially
appear neutral but in fact discriminate against women.5

CLS posits that in order to ensure that the reality of the tainted nature of ‘objectivity’ does not
come to light, the powers at be use structures to ‘legitimate’ the objectivity. The powerful and

1
Mark Tushnet, ‘Critical Legal Studies: A Political History’ [1991] Yale Law Journal 1515, 1524.
2
James F Lucarello, The Praise of the Silly: Critical Legal Studies and the Robert’s Court’ [2010] 26 Touro Law
Review 619, 620.
3
Andrew Altman, ‘Legal Realism, Critical Legal Studies, and Dworkin’ [1986] 15 Philosophy & Public Affairs
205.
4
Martha Minnow, Justice Engendered (1st edn, OUP 1993).
5
Joan C Williams; Amy JC Cuddy, ‘Will Working Mothers Take Your Company to Court?’ [2012] September
Issue, Harvard Business Review, 94; ILO, ABC of Women’s Worker’s Rights and Gender Equality (2nd edn,
ILO Publications 2012) 111.

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privileged legitimise the tainted ‘objectivity’ by various complex fictions and denials of other
possible alternatives and giving the appearance that the status quo is the natural model to
adopt.6

Transgender Bill
The Transgender Bill was introduced in parliament following seminal Supreme Court
decisions on the matter of trans rights7 and sought to codify and protect the right of trans folk
and wished to create a process by which they could get their official identification changed.
The bill was originally introduced by the UPA Government and lapsed, and then was
introduced with few minimal changes by the NDA government who passed it through the
Lok Sabha in the Spring of 2019.8

The key aspect of the bill was that it requires certain transgender individuals to have sex-
affirmation surgery when they request for a change of gender on their identity cards. Further
this request is approved by a Government Doctor and the District Magistrate. This caused
backlash from trans folk as they contended that the scrutiny by third-party impinged on their
right to self-identification.9

1. The Transgender Bill Legitimates the Cis-

Normative ‘Normal’
Feminist and Race Scholars have used CLS to point out that the law has served to reedify the
Patriarchy and White Supremacy as the norm to be followed. This result of discriminatory
rules and judgements was not because of objective interpretation of legal doctrine but rather
because law-creators fulfilled their political wishes using law as a tool to do so.10

Judith Butler posits that the state works to preserve the cis-heteronormative ‘normal’ and
serves to paint the non-conforming as the monster which threatens the state and hence
convinces the cis-majority that protective action must be taken against the trans individual. 11
Therefore on a joint reading of Butler and CLS the argument being made is that the law
serves the cis-majority

6
Mark Tushnet, ‘Critical Legal Studies: A Political History’ [1991] Yale Law Journal 1515, 1526.
7
NALSA v Union of India (2014) 5 SCC 438.
8
Meenakshi Ganguly, ‘India: Transgender Bill Raises Rights Concerns’ (Human Rights Watch, 23 July 2019)
accessed at https://www.hrw.org/news/2019/07/23/india-transgender-bill-raises-rights-concerns.
9
Sanyukta Dharmadhikari, ‘Trans Bill 2019 passed in Lok Sabha: Why the trans community in India is rejecting
it’ (The News Minute, 05 August 2019) accessed at https://www.thenewsminute.com/article/trans-bill-2019-
passed-lok-sabha-why-trans-community-india-rejecting-it-106695.
10
Martha Minnow, Justice Engendered (1st edn, OUP 1993).
11
Judith Butler, Gender trouble: Feminism and the subversion of identity (1st edn, 1990 Routledge) 9.
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3|Page
as it is in their political interest to do so and that the state will make all attempts to
‘legitimate’ the ‘cis normal’ as historically seen.12

One may question as to how a legislation meant for empowering trans folk can be said to be
legitimating the cis-normal. Borrowing from CLS analysis of Labour Law, the elite may
compromise on some of their privileges in the short-term in order to buy long-term
obedience. Therefore, in the aftermath of Worker’s Revolutions of Russia, China etc. the
Liberal states of the world morphed into a Welfare State to appease the proletariat and not
allow for a total worker’s revolution.13 Keeping this example in mind, the exclusion of trans
and non-binary people who have not opted for the surgery is a clear indication that the state
has not yet fully committed to the abandonment of the cis-normative.

The transgender bill, by only recognising those trans folk who have chosen to undergo sex-
affirmative surgery shows that the state is still working within the binary of gender and sex.
The source of gender is still assumed to be in the genitalia of a person when it has become
clear that gender is a social phenomenon and not one of biology. The acceptance of
movement between the binary is the short-term compromise that the state is willing to make
in order to claim that they indeed are for trans rights and silence their critics. The state shall
now claim that they cannot be painted as against the trans community as they have
themselves passed the first legislation empowering the trans community, thereby establishing
that the new status quo is not one that requires more change to it. Hence legitimating the cis-
normative in the long run.

This is further buttressed by the point that the legislation has very little mention of trans
discrimination and has not created a framework for redressal for such discrimination, hence
showing the government reluctance to effectively tackle the issue. The legislation also does
not place trans and cis women as equals as for sexual assault and rape of trans woman the
offence is much less than the equivalent section for cis-women.14

For example, as a member of the non-binary community, gender-neutral spaces are rare to
come by, therefore perhaps women spaces are the ones I enter out of comfort, the current bill
would not protect me from any violence or discrimination I face simply because I have not

12
Genny Beemyn, ‘Transgender History in the United States’ in Laure Erickson-Schroth (ed) Trans Bodies
Trans Selves: A Resource for the Transgender Community (1st edn, OUP 2014)
13
Duncan Kennedy, ‘Critical Labour Law: A Comment’ [1981] 14 Berkeley Journal of Employment and
Labour Law 503; Adam Przewoski, ‘Material Interests, Class Compromise and the Transition to Socialism’
[1980] 10 Politics and Society 125
14
Aakar Patel, ‘India’s Transgender Persons Bill undermines the rights of the individuals it seeks to protect’
(The Scroll, 25 December 2018) accessed at https://scroll.in/article/906757/indias-transgender-persons-bill-
undermines-the-rights-of-the-individuals-it-seeks-to-protect.
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opted for affirmative-surgery which is wholly irrelevant to my gender-identity. 15 The claim
that such a legislation is beneficial to the trans community is only true for the tiny fraction of
the trans community who are willing and can afford the expensive affirmative surgery in
order to receive basic human rights and therefore in the long term will not have the desired
effects that the government hopes for. The fear of the cis of the gender spectrum they do not
fully understand and respect is the reason for their exclusion of non-surgery trans folk as they
can only understand trans-ness within the gender binary.

2. The Legislation-Creation Process should have

been Empathetic
A key point to note is that unlike Legal Realists, CLS has no hope that the law alone can
bring forth social change as in current legal systems the powerful will stifle the attempts for
change due to the worry that they will lose their power and privilege in society. 16 Law
represents a codification of the powerful prejudiced and biased notions of the marginalised,
therefore infusing the law making process with empathy and allowing the marginalised
groups to actively dictate the contents of the law would go a long way in combating the
biases.

The location in empathy of the law has been contested by many due to the vagueness of the
term empathy and questions of its scope however feminists scholars have pegged down its
essentials.17 Empathy is not the natural response of power structures and in the process of
acting on sympathy and being a ‘saviour’, the powerful make assumptions of incorrect nature
about the matter at hand as they have no lived experience with respect to the matter at hand.18

The moment the non-objective nature of law and its creation is negated, there is obligation to
factor in the voices of those most affected by the legislation, especially if it affects the lives
of those already historically marginalised.19. A more empathetic transgender bill would not
come

15
Harikartik Ramesh, ‘NLU Delhi and Mental Health #3’(Mencolek, 26 April 2019) accessed at
http://mencolekmagazine.blogspot.com/2019/04/nlud-and-mental-health-3.html.
16
Thomas R Bruce, ‘Critical Legal Studies’ (The Bridge Project, Harvard University) accessed at
https://cyber.harvard.edu/bridge/CriticalTheory/critical2.htm.
17
Lynne N Henderson, ‘Legality and Empathy’ [1987] 85 Michigan Law Review 1574, 1587; Toni M Massaro,
‘Legal Storytelling, and the Rule of Law: New Words, Old Wounds?’ [1989] 87 Michigan Law Review 2099,
2101.
18
Sebastian Whitetaker, ‘Dear Cis: People Stop Centering Yourself in Conversations about Yourselves’ (Affinity
Magazine, 12 June 2017) accessed at http://affinitymagazine.us/2017/06/12/dear-cis-people-stop-centering-
yourselves-in-conversations-about-trans-issues/.
19
Courtney Martin, ‘Why are White People so Bad at Talking about Race’ (Bright Mag, 07 September, 2018)

6|Page
accessed at https://brightthemag.com/white-fragility-why-are-white-people-so-bad-at-talking-about-race-robin-
diangelo-white-privilege-dbd5b92ba210.

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close to fixing all the problems that the community faces but it would have not added more
obstacles like the current iteration has done. Law historically has not had a neutral nature and
this has occurred for millennia, therefore to counter-act it, neutrality is not the need of the
hour but rather bias towards those who have been marginalised, so as to allow them to reach
the starting line.20

It is not enough for Parliament to simply have good intentions while creating the law, the lack
of a single open non-cis Member of Parliament means that the need for regular, rigorous
consultations was the need of the hour, however this clearly did not happen. During speeches
the government still claimed that the bill was a move of empowerment despite all the protests
and anger surrounding the passage of the legislation. The trans community was ignored at
nearly all stages of the creation of the legislation which is essential to their daily lives.21

The bill only addresses the most obvious forms of discrimination that the community faces,
discrimination faced at the workplace, at colleges and during hiring have been completely
ignored by the legislation, despite the community constantly demanding these measures. The
SC mandated reservation for the community have also been left behind by the government for
no discernible reason.22

These facts characterise the apathy of the government during the entire process of law-
creation, CLS would posit that this was the plan all along by the powerful, the appearance of
appeasement and granting of rights while in reality the status quo was being solidified so as
to quell the loud voices which had been asking for change. As the government did not centre
trans voices on the issue, they effectively silenced them on this key issue. The government
would have been alerted to these various issues present in the bill’s text and could have made
the necessary changes in order to improve the ground-reality of the trans community.

Empathy requires that the person perceive that a person can have their own differing goals,
aspirations and objectives morphed by their upbringing, asks the person to also place

20
Alvin Chang, ‘Asians are being used to make the case against affirmative action. Again.’ ( Vox Media, 30
August, 2018) accessed at https://www.vox.com/2018/3/28/17031460/affirmative-action-asian-discrimination-
admissions ; EPW Engage, ‘Caste or Economic? What Should We Base Reservation On?’ (Economic &
Political Weekly, 16 January, 2019) accessed at https://www.epw.in/engage/article/caste-or-economic-status-
what-should- we?0=ip_login_no_cache%3D8270244898f04c4dbb61d661d82e1aa1.
21
Anureet Watta, ‘Why The Indian LGBTQ Community Rejects The ‘Progressive’ Trans Bill’ (Youth Ki
Awaaz, 08 June, 2019) accessed at https://www.youthkiawaaz.com/2019/07/why-the-trans-rights-bill-is-
unacceptable-to- the-lgbt-community/.
22
Unnati Ghia & Dhruva Gandhi, ‘Transgender Rights Bill: A Stunted Understanding of Gender and Equality’
(The Wire, 05 August, 2019) accessed at https://thewire.in/lgbtqia/transgender-rights-bill-a-stunted-
understanding-of-gender-and-equality.

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themselves in the footsteps and experience the lived experiences of the other and finally to in
good faith actually correct the pain felt in the other person’s lives. 23 Gender is an extremely
intimate subject to many from the community due to the trauma, dysphoria and anxiety that
the subject can generate. Therefore, the value of centring voices increases exponentially, as it
is only through their lived experiences that the cis can gain a view into the trans life and make
the necessary changes in order to reduce the obstacles faced by them.

Neutrality of law creation would require that all voices be heard but assumes that all voices
would have equal value however in reality that is not the case. The cis conception of the trans
is faced by the social and state conditioning they have underwent which portrays the trans as
a Frankenstein like monster created to destroy all their lives.24 Hence the trans voice must be
privileged and listened to carefully and then action be initiated as it will provide the
administrator with a better context in which they can create empowerment strategies. To put
it shortly, the state should look to legislate with the trans community and not merely legislate
for the trans community.

Only when the above process has occurred is the possibility of combatting the hegemonic
nature of law possible and according to CLS this would be the very first battle in a lengthy
war against the oppressive and powerful forces in society fighting for their privileges and the
status- quo.

23
Lynne N Henderson, ‘Legality and Empathy’ [1987] 85 Michigan Law Review 1574, 1587.
24
Judith Butler, Gender trouble: Feminism and the subversion of identity (1st edn, 1990 Routledge) 6.

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 Bibliography
Books

1. Genny Beemyn, ‘Transgender History in the United States’ in Laure Erickson-Schroth

(ed) Trans Bodies Trans Selves: A Resource for the Transgender Community (1st edn,
OUP 2014)
2. Judith Butler, Gender trouble: Feminism and the subversion of identity (1st edn, 1990
Routledge) 6
3. Martha Minnow, Justice Engendered (1st edn, OUP 1993).
4. ILO, ABC of Women’s Worker’s Rights and Gender Equality (2nd edn, ILO Publications
2012) 111

Journal Articles

1. Adam Przewoski, ‘Material Interests, Class Compromise and the Transition to Socialism’
[1980] 10 Politics and Society 125
2. Andrew Altman, ‘Legal Realism, Critical Legal Studies, and Dworkin’ [1986] 15
Philosophy & Public Affairs 205.
3. James F Lucarello, The Praise of the Silly: Critical Legal Studies and the Robert’s Court’
[2010] 26 Touro Law Duncan Kennedy, ‘Critical Labour Law: A Comment’ [1981] 14
Berkeley Journal of Employment and Labour Law 503
4. James F Lucarello, The Praise of the Silly: Critical Legal Studies and the Robert’s Court’
[2010] 26 Touro Law Review 619, 620.
5. Lynne N Henderson, ‘Legality and Empathy’ [1987] 85 Michigan Law Review 1574, 1587
6. Mark Tushnet, ‘Critical Legal Studies: A Political History’ [1991] Yale Law Journal
1515, 1524.
7. Joan C Williams; Amy JC Cuddy, ‘Will Working Mothers Take Your Company to
Court?’ [2012] September Issue, Harvard Business Review, 94

Online Resources

1. Aakar Patel, ‘India’s Transgender Persons Bill undermines the rights of the individuals it
seeks to protect’ (The Scroll, 25 December 2018)
2. Alvin Chang, ‘Asians are being used to make the case against affirmative action. Again.’
(Vox Media, 30 August, 2018)

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3. Anureet Watta, ‘Why The Indian LGBTQ Community Rejects The ‘Progressive’ Trans
Bill’ (Youth Ki Awaaz, 08 June, 2019)
4. Courtney Martin, ‘Why are White People so Bad at Talking about Race’ (Bright Mag, 07
September, 2018)
5. EPW Engage, ‘Caste or Economic? What Should We Base Reservation On?’ (Economic
& Political Weekly, 16 January, 2019).
6. Harikartik Ramesh, ‘NLU Delhi and Mental Health #3’(Mencolek, 26 April 2019)
7. Meenakshi Ganguly, ‘India: Transgender Bill Raises Rights Concerns’ (Human Rights
Watch, 23 July 2019).
8. Sanyukta Dharmadhikari, ‘Trans Bill 2019 passed in Lok Sabha: Why the trans
community in India is rejecting it’ (The News Minute, 05 August 2019).
9. Sebastian Whitetaker, ‘Dear Cis: People Stop Centering Yourself in Conversations about
Yourselves’ (Affinity Magazine, 12 June 2017).
10. Thomas R Bruce, ‘Critical Legal Studies’ (The Bridge Project, Harvard University).
11. Unnati Ghia & Dhruva Gandhi, ‘Transgender Rights Bill: A Stunted Understanding of
Gender and Equality’ (The Wire, 05 August, 2019).

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