In his speech on the last day of the Budget Session of the 17th Lok Sabha, Prime Minister Narendra Modi remarked:
"Those who are on the margins have been reassured that there is a government.”
These margins – or “Lakshman Rekha” (circle of protection) – remind us of the predicament of Sita, in the Hindu mythological epic Ramayana, who was asked to trust the protection of men against the violence of other men. But for transgender persons in India, neither side of the margin seems to offer a dignified life.
On one hand, 19 states and Union Territories (UTs) across India still don’t have a welfare body for transgender persons, as legally stipulated. Of these, four are UTs controlled by the Union government, and eight states have the Bharatiya Janata Party (BJP) as the party in power or as an alliance partner in the government.
The 17 states and UTs that do have a welfare board for trans persons are mostly running rudderless without a policy framework, compliance mechanism, or any power.
These non-transparent, non-accountable, and in some cases, non-existent bureaucratic bodies are turning into phantom forums that act as a countermeasure to diffuse people’s movements that rise to hold governments accountable to their legislative promises.
On the other hand, only 5.6 percent of transgender persons (as per the 2011 census) in the country have applied for a transgender identity card — revealing the inaccessible nature of identity card application and the futility of such a document for a marginalised transgender person when the state doesn’t actually provide rights or welfare measures that benefit them.
This investigation through RTIs, first-hand narratives from various transgender welfare board members, trans/queer rights activists, and judicial observations, reveals compelling reasons for India to shift away from its tendency to celebrate nominal representations, and demand transformative reforms to right the historical wrongs carried out against transgender and gender non-conforming persons.
Boards Exist, But Only on Paper
Rule 10(1) of the Transgender Persons (Protection of Rights) Act 2020 states, “The appropriate government shall constitute a welfare board for the transgender persons for the purpose of protecting their rights and interests of, and facilitating access to schemes and welfare measures framed by the government.”.
Presently, 17 states and Union Territories have notified a transgender welfare/justice/development board under the Transgender Persons (Protection of Rights) Act 2019 and Rule 10(1). This includes Assam, Bihar, Chandigarh, Chhattisgarh, Gujarat, Jammu & Kashmir, Kerala, Maharashtra, Manipur, Meghalaya, Mizoram, Rajasthan, Tamil Nadu, Telangana, Tripura, Uttar Pradesh, and West Bengal.
We took a closer look at these notified boards, and this is what we found.
The majority of the states which have notified a transgender welfare board have held less than one meeting per year since their creation.
The functioning of welfare boards in Gujarat, Jammu & Kashmir, Chhattisgarh, Manipur and Tripura remains undisclosed till today.
Gujarat had notified a transgender welfare board in 2019 in collaboration with UNAIDS. According to its members, the board did not hold a single meeting until 14 October this year – five years after the board was formed.
Of the remaining 12 states and UTs, only four held meetings in 2023 – namely, Tamil Nadu, Kerala, Chandigarh, and Maharashtra.
In Mizoram, not a single meeting of the board has been convened since its creation.
In states like Manipur, since 2017, the welfare board remains practically defunct. Last year, the Governor of Manipur reconstituted the 17-member board with only one transgender woman and one transgender man represented in the body.
This year, the Punjab and Haryana High Court in a PIL filed by Yashika, a transgender student, observed that the Chandigarh transgender welfare board has been acting as a cosmetic feature for the government and did not meet sufficiently to discharge its duties.
The Amicus Curiae (an impartial adviser to a court of law), appointed by the Kerala High Court in Kabeer v State of Kerala 2021, noted in their report that the Kerala State Transgender Justice Board had not convened a single meeting in the reported year.
The National Council for Transgender Persons constituted under the Ministry of Social Justice and Empowerment has just held two meetings in the last four years since its creation.
Data sourced from RTI(s) and board members. Note: Approximate numbers of meetings estimated from statements given by various welfare board members.
Only five states have developed a state-level transgender policy, namely, Kerala, Karnataka, Assam, Odisha, and Maharashtra. Assam is the only state in India which has extended quasi-judicial powers to its welfare board. It is a form of delegated authority to ensure compliance with its recommendations under various provisions of the Transgender Persons (Protection of Rights) Act 2019.
These boards are also not immune to political abandonment when there is a change of ruling party in the state. For instance, the Maharashtra transgender welfare board was a brainchild of the Maha Vikas Aghadi (MVA) – an alliance of the Shiv Sena (Uddhav faction), NCP (Sharad Pawar faction) and Congress – and was allocated Rs 5 crore in the 2020 Maharashtra Budget.
In 2022, when the MVA government was dislodged from power by the Mahayuti alliance of the BJP, Shiv Sena (Shinde faction), and NCP (Ajit Pawar faction), no subsequent budgetary allocations were made for the welfare of transgender communities in the following fiscal years.
The Trips and Traps of Representation
In 2014, in the NALSA vs Union of India case, the Supreme Court of India accorded constitutional recognition to a transgender person’s right to self-identify their gender, and judicial directives were given to appropriate governments (Union and state) to assist their lives.
In 2019, the Indian Parliament passed the Transgender Persons (Protection of Rights) Act (TG Act), which envisioned a two-pronged approach to reach out to transgender persons – an inclusive approach by formulating a transgender identity card to ‘quantify’ what transness means for the state; and a convergent approach by constituting a nodal body (the welfare board) as a forum comprising of transgender persons and bureaucrats from various in-line ministries/departments at the Union or state level. This nodal body has to protect the rights and interests of transgender persons and facilitate their access to schemes and welfare measures framed by the government.
Both these approaches are riddled with flaws.
Representation of transgender persons in the governance apparatus constructed around the Transgender Act has two issues – the trip and the trap.
First, the Government of India, like its British colonisers, lumped various indigenous and gender non-conforming identities under the single label of "transgender”. This oversimplifies the diversity of gender-non-conforming experiences and identities in India.
In states where boards do exist, it is trans women who have had gender affirmation surgeries who are represented most. Trans men, non-binary persons, and intersex persons barely get a seat.
Ani Dutta, a professor at the University of Iowa, in their research, notes the tendency of Indian bureaucracy to create complicated regulatory rules around judiciary ordained recognitions. In the context of India’s stark socio-economic disparity, only those with resources, community networks, and relative social privilege can navigate these bureaucratic processes to get a transgender identity card.
There are intricate social divisions within the transgender communities. Trans women who have undergone gender affirmation surgeries enjoy a higher social status than trans women who have not undergone nirvana (ritualised castration) or gender affirmation surgeries. This understanding of gender "authenticity" is implicitly replicated in the Transgender Act Rules 2020. Section 6 and Section 7 create two class groups – Section 6 enables someone to self-identify as transgender, but Section 7 adds a condition to the principle of self-identification that requires medical intervention to identify as a man or woman. This classification undermines the spectrum of gender fluidity endemic to India.
Trans women who can undergo nirvana or gender affirmation surgeries and identify as "female" are the most dominant, visible and debated narrative of India's story on the principle of self-identification. The predicament of kothis (a term used for trans women who have not had gender affirmation surgeries, and for gay or bisexual men in some contexts), trans men, intersex persons and genderqueer persons, remain sidelined. It is why the possession of a government-issued transgender ID card under its current provisions is becoming a “representation (power) trip” for some on the margins of our society.
For instance, in 2023, when the Hyderabad North Zone police arrested 19 transgender women, “the community mobilisation to resist these illegal arrests was impeded by discussions on how ‘men dress up as a transgender persons’ to run begging rackets in the city and bring a bad name to the trans community,” a genderqueer activist (who prefers to be unnamed) privy to discussions on a trans-queer forum says. In the backdrop of this “authentic us” versus “Imposter them” politics, 19 gender non-conforming persons were stripped naked by the police to examine their genitals.
There is also little diversity in who gets represented in welfare boards, where they are constituted. Kanmani Ray, a lawyer and a transgender woman, says, “Not all transgender persons live in gharanas/jamaats, not all transgender persons can separate from their natal families, forms of violence experienced by transgender persons are different. What we see in welfare boards is that intersex persons and trans men are sidelined in discussions. Like any other marginalised social group, we face intra-community violence and unequal power relations.”
The bureaucracy of welfare boards ignores these realities.
The fact that these boards have transgender persons in them is a “representation trap” – they offer public visibility to marginalised persons but also make them appear politically complicit in the government’s apathy. While trans and gender non-conforming persons look up to the members of the welfare boards to effect change in their material conditions, the representatives themselves have little power to change policy – or even call meetings, as is evidenced by the number of sittings of these boards in most states and UTs.
In 2023, when a group of transgender members of the Telangana transgender welfare board wrote to the additional director general of Telangana Police seeking action against a gang of men who were routinely robbing and assaulting trans persons across Hyderabad, the police department ignored these petitions, according to activists. The members of the welfare board could do little as the body has no quasi-judicial powers to investigate the issue or take any action – unlike the national and state human rights commissions, women’s commissions, and child welfare bodies.
Vyjayanti Vasanta Mogli, an RTI activist, says, “My nominated tenure to the transgender welfare board of my state started and ended without the nodal ministry or its officials outlining the policy framework and power of the board.”
The Truth About Trans 'Rights'
In the 10 years since the NALSA judgment, the needle of social equality hasn’t moved in the “rights” direction in India. This truth is most apparent in the returning figure of a trans person to the judicial corridors to plead for promised but undelivered rights.
Sangama and Nisha Gulur, on behalf of Jeeva, an organisation working for the upliftment of transgender persons, had to file a PIL with the Karnataka High Court in 2020 for horizontal reservation for trans persons in public employment opportunities. In 2021, Vyjayanti Vasanta Mogli and others in Telangana had to knock on the Telangana High Court’s doors for life-supporting amenities during COVID-19.
Kantaro Kondagiri had to petition the Odisha High Court in 2022 to seek a trans woman's right to inherit the pension of a parent, which in law is made available to the unmarried daughters of any deceased pensioner. Zena Sagar, a Dalit transgender student of the Satyajit Ray Film and Television Institute, had to move to the Calcutta High Court in 2023 after being denied hostel accommodation because of her gender identity.
Transgender persons struggling for livelihood and resources are still viewed as a public nuisance by the state.
Earlier this year, Pune's Police Commissioner Amitesh Kumar imposed a begging ban against transgender persons in the city – with absolute disregard to the 2021 advisory circular issued by the Union Ministry of Home Affairs which said that obstructing a transgender person’s access to public space would be a violation of section 18 of the TG Act.
Contrary to PM Modi’s resounding claim – “We have given transgender persons an identity” – the latest data from the Ministry of Social Justice and Empowerment confirm only 5.6 percent of the enumerated transgender persons in 2011 have applied for a transgender identity card. Why would trans and gender non-conforming persons enlist themselves on the state’s registers without the Indian government proactively working on various dimensions of citizenship like equal and dignified access to family, property, housing, healthcare, social security, education, and employment?
A cursory look at the Union government’s budget allocations and actual expenditure on trans welfare explains why transgender persons continue to exist on the margins in a welfare-centric polity like India. In 2021-22, the government allocated Rs 20 crore for the Comprehensive Rehabilitation for Welfare of Transgender Persons – however, only Rs 1.91 crore was spent. In 2022-23, the allocation increased to Rs 30 crore, but the actual amount spent was only 0.4% of this allocation – a paltry Rs 12 lakh.
During the last Interim Budget presentation, Finance Minister Nirmala Sitharaman claimed that providing more people access to existing government welfare schemes is the welfare story of PM Modi’s 10 years of governance. However, the exclusion of transgender persons from the Gender Budget Statement and the systematic refusal to mainstream their access to government programmes and schemes beyond the Ministry of Social Justice and Empowerment shred these high claims.
Raghavi, a lawyer and trans rights activist from Delhi, says,
“The insufficient investment in gender-inclusive infrastructure across public institutions and scattered sensitisation programmes for various in-line departments discredits the government’s much-touted saturation-approach.”
Reform or Reimagine?
The reform sought by trans activists we spoke to has three urgent demands – power redistribution, inclusive representation, and decentralisation.
Grace Banu, a Dalit trans rights activist from Tamil Nadu, points out a fundamental flaw in the design of transgender welfare boards. “The majority of decision-makers on the boards are cisgender men or women, the staff aiding the functioning of these boards are cisgender. Transgender persons are a nominated minority in the composition of a board constituted in their name.”
Vyjayanti adds, “The design of the transgender welfare board does not meaningfully redistribute power to transgender persons, who hold representation on these boards. The power to convene a meeting rest with a bureaucrat, the power to publish the deliberations of these meetings remains with the nodal ministry/department, and the implementation of actionable points remains dependent on the goodwill of various department officials.”
The nominal representation of trans persons on the board without any power makes them a rubber duck to face pushback from trans-queer communities on the government’s inaction. “We get a seat, not say,” remarks Vyjayanti.
Rituparna Neog, associate vice chairperson of the Assam transgender welfare board, explains the material limitations of these boards. “The lack of annual allocation of funds for the functioning of the welfare board impairs the ability of its transgender members to intervene in any emergency situations related to the community.”
The notion that social work is a self-financed undertaking restricts the participation of working-class and unemployed community organisers in these nominated roles. No welfare board in India offers its members a nominal salary to carry out the board's work. Except for Tamil Nadu, various welfare boards in India do not even provide travel allowance to their transgender members to attend board meetings.
Grace, Vyjayanti, and Rituparna agree on the fact that most welfare boards do not have prescribed policy guidelines for their nominated members to push for an actionable agenda, nor are these bodies accorded quasi-judicial authority like various human or women's rights commissions to enforce compliance. These boards need to be converted into statutory independent commissions with legal permits to oversee compliance with the government agenda and take cognisance of human rights violations being committed against trans and gender non-conforming persons within their administrative jurisdiction.
Regarding inclusive representation, Arun Karthik (he/him), a member of the Tamil Nadu transgender welfare board and trans man, explains the structural inequality within these representative boards. “Currently in Tamil Nadu, whenever a trans man wants to report an incident in the welfare board meetings, other members (bureaucrats and trans women) do not provide them equal space or attention,” he says.
He adds, “The schemes and benefits being provided by the Tamil Nadu government are disproportionately offered to trans women. Till 2023, the government orders released by the Social Welfare Department of Tamil Nadu (the nodal body for the transgender welfare board) used to only mention the term Thirunangai (the Tamil word for transgender women) as beneficiaries. It was a term popularised by the late ex-chief minister K Karunanidhi for trans women in the state. The government officials repeatedly reject the applications of trans men under these schemes as these circulars do not mention the term trans man or Thirunambi (nambi denotes man).”
It is a telling reality of the popular imagination that remains hinged on the idea that transgender means trans women.
Further, there is a need for decentralisation. Tashi Choedup, a trans-feminine Buddhist monastic (nunk) and nominated member of the Telangana transgender welfare board, suggests, “The government needs to decentralise its work of actualising trans rights. Local transgender persons, with a more situated awareness of local politics and conditions, need to be involved and employed at a district level to enable the transfer of welfare schemes and opportunities to transgender constituents.”
Don Hasar, a trans/queer rights activist and community organiser from Himachal Pradesh, says, “I live in a mountainous terrain, where even to beg the government to enact the provisions of the Transgender Act or access the ID card, is a time-consuming and expensive ordeal. One has to travel eight hours from the mountains to the valley to furnish a representation to the designated department and further wait for a bureaucrat to entertain our query. For a lot of unemployed and working-class trans persons, it is not feasible in terms of time, money and access.”
Disha Pinki Sheikh, the state spokesperson of Vanchit Bahujan Aghadi and trans woman, says problems need to be seen within their context. “Transgender persons living in Mumbai have different issues from the ones in Pune or Vidarbha. Our capacity to collectivise as a bargaining group also differs. For a community which has been historically discriminated against, there is a greater need for local participation than nominal representation. The government needs to involve transgender persons in different regions of the state to make and implement a policy in a participatory sense,” she says.
“For instance, when the government announces an entrepreneurial or start-up scheme at a state level and does not notify its eligibility rules and application process to its various districts, a transgender person from a rural area in Nagpur would not have the capacity to follow up on the opportunity like a person who has the support of CBOs/NGOs concentrated in cities,” Disha explains.
“In urban localities, there is greater collaboration between different civil society actors – human rights groups, lawyer networks, and media professionals. Hence, the work of holding the government accountable is shared. In less affluent regions, it is a lonely battle. The transgender applicant has to carry the burden of informing the local government offices of such a scheme, and then await its implementation at a district level. If it does not come through, they must again carry the burden of summoning the appropriate government to a court of law or give up opportunities in silence.”
There is a constitutional urgency to these demands. However, the entire framework of transgender welfare boards carries one caveat with no easy answers. The welfare boards – which presently act in an advisory capacity – have transgender persons as members who are appointed by the government, rather than elected through any democratic means or communitarian consensus. Thus, it becomes difficult to ascertain whether one privileges the government's will which appoints them, or the community with which they share their identity.
Moreover, the consensus across the political aisle on restricting transgender and gender non-conforming persons’ direct access to the power of law-making and limiting it to welfare boards is symptomatic of India’s pervasive transphobia and the reluctance of various governments and political parties to invest in changing prevailing social attitudes among its population.
(Vaivab Das is a PhD student at the Indian Institute of Technology Delhi and a Fulbright Fellow at the University of California Berkeley. They research at intersections of gender, sexuality and law.)
(This story was produced as part of the InQlusive Newsrooms Media Fellowship 2023. InQlusive Newsrooms is a collaborative project by The News Minute and Queer Chennai Chronicles, supported by Google News Initiative, and is working on making the Indian media more LGBTQIA+ sensitive.)
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)