Transgender Persons Bill 2019 may cause more psychological harm than good with its stance on certification, 'self-perceived' identities

"I identify as tired."

Perhaps Hannah Gatsby’s striking reflection stemming from her rage against a world blinded by binaries is shared by the trans community in India following the passage of the Transgender Persons (Protection of Rights) Bill, 2019 in Parliament on 26 November. The Bill, while claiming to protect the rights of people who identify as transgender, has in turn appeared to create more psychological barriers between them and the basic freedom of identity that any individual deserves.

The transgender community, in a press statement, recognised that the Bill limits their freedom of movement to familial places and rehab centers, persecutes them, and also involves a framework to grant certification of being transgender which, objectively through a third person, serves as ‘proof’ of their identity. These steps not only underline a (possible) misuse of professional power and ethics but also may further induce psychological distress in people from the community.

It has long been established in contemporary research that poor mental health outcomes are strongly linked to harassment and violence endured by transgender persons and gender-diverse individuals, but the Bill seems to have ignored generations of stigma and violence at intersectional levels. And where else does the discourse of maltreatment stem from, if not our inability to understand what it means to be transgender?

Pompi Banerjee, a Kolkata-based psychologist who identifies as a gender-fluid person, considers a cluster of reasons that may have led to the passing of this Bill in its current state. She says, “Lack of awareness among policymakers about different gender identities, including non-binary gender identities, played an important role. Secondly, there doesn’t seem to be participation of community members in the formation of the Bill. If it was built in a more collaborative way by working with the community members, it might have been useful.”

Where does the flaw truly lie in the creation of such a bill which, in the name of inclusion, ironically treats people in an exclusionary manner? More importantly, what is the implication of allowing medical professionals to investigate the validity of the inner experience of an individual?

Objectivity over subjective experience

Psychology does not seem to agree with the Bill’s regressive stand. The draft discusses the right to a ‘self-perceived’ identity, a term which is problematic in itself. Seeing gender identity as ‘self-perceived’ shows a collective failure to learn that identities are never perceived as separate entities, but rather lived. They aren’t ‘accepted’ or ‘considered’ by the person; they are the person. But both the Bill and the public in general seem to use the binary of male or female as a baseline of ‘normality’ to which every other so-called self-perceived identity must return.

With its factor of revised certification, which requires a transgender person to apply for a new certificate should they undergo reassignment, the Bill indirectly assumes reassignment to be a norm, suggesting that any gender expression is unconventional unless it falls into a rigid binary. The myth that all transgender persons undergo transition has been debunked several times.

“Some transgender people do transition and others do not. Transition is not for everyone. Transition refers to a change in gender role. Hormone therapy and/or surgery to feminise or masculinise the body may be part of that. A change in gender role may also be part-time or involve changes in some parts,” says Walter Bockting, PhD, a professor of medical psychology and co-director of the LGBT Health Initiative at the New York State Psychiatric Institute in an interview with the American Psychological Association.

Similarly, gender dysphoria may or may not exist in an individual who identifies as trans. It took years for psychiatric bodies to shift their paradigm from a diagnosis of gender identity disorder to depathologising gender dysphoria. It was to establish that experiencing a gender identity different from the assigned sex at birth has nothing to do with a mental illness.

Another feature of the Bill that has been criticised is that it lowers the punishment for crimes against trangender persons, including physical and sexual abuse in comparison to those committed against heterosexuals. It not only overlooks the element of marginalisation within the community but also concomitantly views it as less deserving of equal rights and affirmative action. “The fact that the Bill provides for a punishment of six months to two years for sexual assault against transpersons, whereas the provisions for sexual assault against children and women are much more severe – it makes no sense other than being a very prejudiced stance,” Banerjee adds.

The role of power

The clause about a screening committee has been eliminated in the revised Bill, but certification from the District Magistrate is still required to issue the right to a person to identify as transgender. The certificate of identity as will be issued after some ‘suitable procedures’ are followed, which remain unclear in the draft. Even with the removal of screening committees, it is still crucial to look at the misuse of medical and judicial power that often perpetuates oppression.

“What would enable a district magistrate to certify a person as transgender?” Pompi asks, discussing the irrationality of the certification process, “How can self-identification and certification by the District Magistrate be implemented simultaneously? This is confusing for a lot of the community members, and I imagine it will be equally confusing for the authorities as well. If we look at this process through an intersectional lens, can we imagine the hurdles a Dalit person may have to go through to get such a certificate?”

Medical professionals could also possibly act as gatekeepers to people who experience gender-related issues, and are thus often advised to remain in check of this power dynamic when working with them. “As a psychologist and a gender-fluid person, I’ve always wondered about the requirement of psychological testing for acknowledging someone as transgender,” Pompi says. “Why isn’t the testimony by a transgender person enough to establish their identity? What purpose does any assessment serve? When we change names or surnames, we do not have to undergo such lengthy procedures.”

Community members and stakeholders can only speculate about what the future will look like. “At present, from the apprehensions stated by various transgender activists and leaders, it seems the perception is, there is an increased lack of clarity regarding who is supposed to do what, and a possible increase in persecution of the community members,” Pompi says, “Effective consultation with the community can prove useful.”

Social exclusion and a lack of acceptance has been found to be a major contributing factor to the psychological distress experienced by trans people. On the contrary, there are individual and social benefits to embracing a fluid expression of gender, rather than controlling it through unbending laws that do not take into account the subjective nature of identity. Policies like these work if formed using a psychosocial lens, which considers identity to be innately formed but deeply affected by the sociopolitical environment. With such confusing regulations, we are merely creating an illusion of safe spaces and welfare that may cause more harm than good.

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Prateek Sharma