Gendering of Development Data in India: Post-Trans Act 2019

Against much uproar from the transgender community, the Transgender Persons (Protection of Rights) Act 2019 was enacted by the Government of India in December 2019 to recognise and protect the rights of transgender persons. Opposition from the transgender community was due to several problematic provisions in the statute, including the demand for surgical intervention for transgender persons to change their gender on identification documents. This study, “Gendering of Development Data in India: Post-Trans Act 2019,” seeks to explore collection of data and issuance of government (foundational and functional) identity documents to persons identifying outside the cisgender/binary genders of female and male after the enactment of the Trans Act.

The study also aims to understand the data misrepresentations, barriers to accessing public and private services, and informational exclusions that still remain for transgender persons. It builds on the findings from a previous study, Gendering of Development Data in India: Beyond the Binary, undertaken for the Centre for Internet & Society (CIS), India, as part of the Big Data for Development Network supported by International Development Research Centre (IDRC), Canada.

• Part 1 - Introduction, Research Method, and Summary of Findings: Download (PDF)
   

• Part 2 - Data Challenges Due To Transgender Persons (Protection of Rights) Act 2019: Download (PDF)
   

• Part 3 - Transgender as Gender Category in Law, Policy and Data Systems: Download (PDF)
   

• Part 4 - Right to Life vs Right to Privacy: Download (PDF)

Owing to the Indian government’s increased emphasis on data for development and the introduction of a digital ID as the ultimate solution to solve all development challenges, this study seeks to understand ‘transgender’ as a gender category within law, policy and data systems in India, a digital welfare state with a history of colonisation. Although this study focuses on India, the findings may be useful to understand the data challenges of other Global South countries with a colonial history of criminalisation and pathologization of transgender persons. A series of interviews for this qualitative research study were conducted between October 2021 and July 2023. Although interviews were conducted at different intervals between 2021 and 2023, it is important to note that the responses from the interviewees and the challenges noted have remained consistent throughout this period. 

Although this study focuses on India, the findings may be useful to understand the data challenges of other Global South countries with a colonial history of criminalisation and pathologization of transgender persons.

Since this study is built on my previous research study for CIS India, I have also used the data collected during that study in 2018 to inform this report. Thus, a total of 38 interviews (18 in 2018, 14 in 2021, 2 in 2022 and 4 in 2023) with secondary respondents representing diverse stakeholders including lawyers, activists, community leaders, petitioners challenging the constitutionality of the Trans Rights Act, and heads of organisations, all doing important work with the community, as well as three focus group discussions (conducted in July 2023) with 11 intersex persons (primary respondents) were used to write this research report. The focus group discussions were conducted as part of a research that I did on the rights of intersex persons in India for Intersex Asia, an Asia-based intersex rights civil society organisation. Four key observations from this study are presented in this post.

This article highlights a few key observations from the study, Gendering of Development Data in India: Post-Trans Act 2019.

Observation 1: The Trans Act legitimises pathologization and certification of certain (transgender) bodies to authenticate eligibility for human rights 

The draft rules of this statute were released during the global COVID-19 lockdown in 2020 due to which no consultation or inputs were collected from the communities. As a result, transgender persons were required to show a certificate of surgery as a requirement to change gender on identification documents as per the rules. Owing to the pushback from the transgender community, the final rules published in September 2020 removed this requirement. Instead individuals are now required to submit a medical certificate. 

The Trans Act 2019 prescribes a two-step digital process for changing name and gender on identification documents under Section 6 and Section 7 of the statute, with details for the process under Rules 5-7 of the Trans Act Rules 2020. Although the understanding of a medical certificate is open to interpretation and can include a certificate of gender dysphoria from a mental health professional, this demand for a medical certificate from one section of the Indian population based on gender identity creates a hierarchy among human bodies eligible to access human rights with valid identification documents. The Indian State has thus legitimised the mapping and surveillance of certain bodies based on gender under the garb of protection.

Observation 2: Replication of existing offline challenges by digital processes and digital systems continues to keep transgender persons excluded

The replication of existing offline challenges by digital processes and digital systems was a key observation made in my previous study for CIS India, which looked at the data challenges faced by transgender persons in India before the enactment of the Trans Act 2019 and at the introduction of a standardised process to change name and gender on identification documents. Although a standardised process to change name and gender has been introduced in the Trans Act 2019, the statute assumes that a digital process is the best means for transgender persons, a historically marginalised and invisible population group, to change their identification documents. Both levels of literacy and digital literacy are low among transgender persons in India. According to a report by the National Human Rights Commission, nearly 50% of transgender persons have not graduated Class 10. This has a significant effect on their access to different rights due to limited literacy, which also means limited capacity to use smart devices and digital platforms. Access to mobile phones and smartphones continues to remain limited for this population group.

[The] demand for a medical certificate from one section of the Indian population based on gender identity creates a hierarchy among human bodies eligible to access human rights with valid identification documents. The Indian State has thus legitimised the mapping and surveillance of certain bodies based on gender under the garb of protection.

Respondents of this study note that transgender persons manoeuvre smartphones by sending voice notes on messaging apps for communication. This level of understanding is insufficient for them to digitally fill out application forms to change their name and gender on the National Transgender Portal setup by the government to digitise the implementation of the new law.

Additionally, transgender persons continue to struggle with changing their name and gender due to several reasons including but not limited to,

• Changing one’s name and gender on different documents is dependent on existing identity documents in one’s assigned name and gender. This is often a challenge for many transgender persons who are forced to run away from their natal homes to escape abuse, domestic violence and discrimination due to their gender identity, and do not possess required documents;
• The forms are available only in Hindi and English which may not be accessible to those from rural parts of several states like Andhra, Karnataka, Tamil Nadu, Telangana, and others, where individuals might not know either of these two languages;
• Not all District Magistrates are aware of the two-step online process, which contributes to delays in changing documents; 
• Owing to the delays in the digital process, individuals are forced to engage in-person with government officials. This often results in discrimination and harassment. Although the Trans Act explicitly deems physical checks as illegal, such arbitrary physical checks continue in several parts of the country; and, 
• Only those clued into community networks manage to change their identification documents and also access the limited list of trans-friendly medical professionals to acquire medical certificates. Accessing trans-friendly medical professionals continues to remain a challenge for transgender persons.

Observation 3: Lack of understanding of intersectionality of different identities impacts the data on transgender persons with multiple identities of marginalisation 

Transgender persons living with multiple identities of marginalisation are required to undertake the name and gender change on their documents multiple times. While the certificate of identity or transgender ID card issued by the National Transgender Portal can be used to change name and gender on other documents, it still involves engaging with different government officials who may be transphobic, insensitive and discriminatory towards transgender persons. Similar to transgender identity card, the process of procuring caste certificates and UDID (Unique Disability ID) is also dependent on existing identification documents. These individuals often endure discrimination multiple times for their caste identity and disability status while changing their different identification documents. Hence, transgender persons change their name and gender only on documents that are easier to change and based on specific terms of personal engagement in different spaces. When these different identification documents are digitally linked, it leads to a data mismatch within data systems. Thus data becomes a problem to be solved where none existed.

Observation 4: Prioritisation of the power-play between data sovereignty and data colonialism over right to life and privacy of citizens

Accessing any welfare service in a digital welfare state means being present in different (digital) datasets by using an identification document or by sharing personal data as administrative and legal subjects. The state expects transgender persons to disclose their transgender status in order to access state welfare. The inability to do so has meant exclusion, both before and after the passing of the Trans Act 2019. Non-disclosure of their transgender status is a privilege that is afforded only by individuals who are not dependent on state welfare. Similarly, new and sophisticated methods built in smartphones and different social media platforms collect innumerable data points about an individual. Data colonialism is a modern form of hegemony and control practised by big tech companies.

In an attempt to counter the data colonialism of big tech companies, the Government of India has been propagating the notion of data sovereignty and data as a public good — making it available (including personal data of individuals) in the public sphere to deliver social good. While the expectation is for individuals to turn themselves into data, not all service providers — including the Indian State — provide an option for transgender persons to enter data systems and, consequently, datasets in their self-identified name and gender. The characteristic of perpetuating the legacy of colonialism extends to the data, specifically gender data of transgender persons who were historically silenced and whose enumeration as a gender (data) category was enacted as a surveillance measure. Transgender persons are constantly forced to choose between their right to life and right to privacy in order to be included within data sets, often compromising their privacy with no guarantees of access to services. Thus, both the state and private sector prioritises data over the rights of transgender persons. 

Digitalisation of welfare access and the digitisation of the name and gender change process to verify an individual’s identity is moving into the realm of the state deciding whether transgender citizens as a whole need welfare at all, and if these individuals are destitute enough to warrant social security after facing centuries of state-sanctioned discriminations against them.

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In conclusion, the findings from this study are reflective of the strong anti-gender narrative emerging globally, especially within global south countries with a colonial history of criminalising and pathologization of transgender persons. Globally, amplifying the impact of the anti-gender movement, gender in development data continues to be viewed in binary of male and female. Policing of transgender bodies by demanding medical certification as a legal requirement to prove identity within the Trans Act legitimises state surveillance of trans bodies, turning their gender into another form of biometrics to be verified, which perpetuates systemic gender-based violence against transgender persons. This is being further strengthened by anti-transgender legislations, sometimes in the guise of a pro-transgender law like the Trans Act 2019, that are being introduced across different countries to continue the pathologization of a specific gender throughout the world. This voluntary pathologization is further hard coded by digital systems impacting the data collected on this population group, thus determining their eligibility to be acknowledged as a valid human being deserving of human rights. 

Shivangi Narayan, the author of Surveillance as Governance on the use of data generated from citizens through identification systems, writes, “The government wants to use this data to decide whether citizens as a whole need welfare at all. Not just what it says in Aadhaar promotions – to target welfare better – but over a period of time decide whether welfare in itself is a good strategy… Government also wants to know whether you really are who you claim to be. In other words, are you destitute enough to warrant social security?”[1]

Building on the words of Shivangi Narayan, I say digitalisation of welfare access and the digitisation of the name and gender change process to verify an individual’s identity is moving into the realm of the state deciding whether transgender citizens as a whole need welfare at all, and if these individuals are destitute enough to warrant social security after facing centuries of state-sanctioned discriminations against them. 

Acknowledgement:

This study, Gendering of Development Data in India: Post-Trans Act 2019 by Brindaalakshmi K was undertaken for the Association for Progressive Communications (APC) as part of the Our Voices, Our Futures (OVOF) Project. The first draft of this report was reviewed by Dr. Asha Achuthan, Assistant Professor, Mumbai Campus, Advanced Centre for Women's Studies, School of Development Studies - Tata Institute of Social Sciences; and Dushyant Arora, Lawyer and Srinivas Kodali, independent researcher. This report was copy edited by Bren Kutch (they/them), Interim Co-President - Society of Gender Professionals and Director of Talent, Equity, and Culture - Center for International Environmental Law.