Forced rehabilitation, low-paying jobs (if any at all), an inaccessible justice system, and no meaningful integration with a developing economy remain hard truths for a community systematically sized down by the Indian State.
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UNION Finance Minister Nirmala Sitharaman introduced the Union Budget 2023–24 as a prelude to the onset of ‘Amrit Kaal’ for India. Not surprisingly, the budget only hands down ‘kaal’ for transgender persons, who have been left out of the scope of human development and public opportunities even before the idea of ‘India’ entered our political vocabulary and history.
The Transgender Persons (Protection of Rights) Act enacted by the Parliament in 2019 set in motion a formative phase for imagining a transgender citizenship in India, where policymakers arrogated to themselves the power to ascertain what recognition, representation and rights should look like for a historically marginalised community comprising hijras, kinnars, transgender and gender non-conforming persons.
The 2019 Act does not even consider the broad discussions documented in the ‘expert committee meeting on the issues related to transgender persons‘ organised by the Union Ministry of Social Justice and Empowerment on November 6, 2013. This confidence to pretend to know all about the relatively unknown comes from our collective apathy and what I term as the ‘politics of the bare minimum’.
The 2019 Act, brought in without proper consultation with the transgender community, invariably envisions empowerment for the transgender communities on the scripts of a second-class citizenship. It brings transgender persons from the abyss of our social imagination to the distant peripheries of our economic, social, and political sphere.
The 2019 Act, brought in without proper consultation with the transgender community, invariably envisions empowerment for the transgender communities on the script of a second-class citizenship. It brings transgender persons from the abyss of our social imagination to the distant peripheries of our economic, social and political sphere, only to compel us to celebrate this marginal movement as a Mahotsav. This forced visibility and political containment seen in India’s bare-minimum policy efforts prefaces the precarious situation in which transgender persons live in the country today.
Also read: Reclaiming Rights: Transgender Persons Bill and beyond
Therefore, the State celebration of Amrit Kaal marks an important occasion for us to ask whether one can belong to a celebratory party while standing in the State’s queue for equal and substantive recognition.
Political and bureaucratic haze
The Union Budget allows us to understand the political and bureaucratic haze created around the rights of transgender persons.
India, like most other countries, has a gender problem. Public spending effectively does not reach the constituents that have historically been at the receiving end of gender norms in the country. Numerous development practitioners and economists have talked about the multiple and insidious ways through which structural barriers and social institutions like class, caste, region and religion impede both the creation of policies and the last-mile delivery of various schemes for (cisgender) women. But the extension of this conversation to the plight of transgender communities remains a calculated miss for lawmakers and policy analysts alike.
In 2005, the Gender Budget Statement was introduced in the Union Budget as an indicator of the Union Government’s commitment to promoting gender equality in all sectors and at all levels of governance. The Gender Budget is drafted from a gender perspective based on budget provisions for schemes substantially benefiting women.
In 2014, the Supreme Court, through its judgment in NALSA versus Union of India expanded the contours of gender and recognised the rights of transgender persons within the Constitutional folds. It has been nine years since the court directed the Union government to approach gender equality beyond its binary limits. Yet, the government, led by the Bharatiya Janata Party has failed year after year to include transgender persons in its ‘Sabka Saath, Sabka Vikas’ magnum opus.
There are two major parts to this predicament — the political reluctance to constitutionally administer, and the fissures in our public infrastructure to deliver.
Such a system fails to acknowledge the vulnerable conditions of a lot of transgender persons, who exist in a perennial state of ‘Statelessness’, rescuing themselves from social and legal persecution on an everyday basis. The transgender community shares a discriminatory legacy of existing.
The reluctance to mainstream the rights and welfare of transgender persons is not just ingrained in the political ideology of the present government. Fundamentally, it can be located in how the technocratic modes of governance organise a population into a democracy. Simply put, you matter, only if you exist as data. The purpose of data in contemporary times has critically shifted from subjectively knowing to erasing objectively. Rather than becoming a tool to empower, data has become a weapon to invisibilise humans whose needs and social locations cast doubt on the efficacy of our knowledge infrastructure.
In our scientific culture of human development, a problem cannot be addressed if decision-makers cannot deduce the economics and statistics of a collective good. The gender binary of a cisgender man and a cisgender woman provides an easy base for the State to discharge its duties based on simple correlations and proportionalities. If we dig deeper, we will find how the hegemonic social realities of India leave a strong imprint on objective data. Large-scale audit exercises are operationalised based on certain social assumptions, like the population is a static community, and their households a fundamental point of reference for the administration to know the public and deliver public services.
Such a system fails to acknowledge the vulnerable conditions of a lot of transgender persons, who exist in a perennial state of ‘Statelessness’, rescuing themselves from social and legal persecution on an everyday basis. The transgender community shares a discriminatory legacy of existing. For centuries, gender non-conforming persons were criminalised under the Criminal Tribes Act, 1871, the Telangana Eunuchs Act, 1329 F., the Bombay Prevention of Begging Act, 1959, the Immoral Traffic (Prevention) Act, 1956, and the various state-level Habitual Offenders Acts, among others. For the Indian State, transgender persons only existed on criminal registries.
Also read: Protection against cruelty under IPC should be extended to transgender community
In 2011, the transgender communities were enumerated for the first time during the 15th Census of India. However, the data of this audit needs to be socially contextualised. The transgender population was estimated to be 487,803 when homosexuality was still criminalised, and ‘transgender’ was not constitutionally recognised as a gender identity in India.
The logics of governmentality have systematically ignored these social facts. Various public institutions have time and again taken cognisance of this number to dilute the urgency of equal rights and empowerment for the transgender communities on the rationale of ‘not big enough to matter’. Various transgender rights activists, community-based organisations, civil society stakeholders and state-level surveys carried out by appropriate governments (such as the Samagra Kutumba Survey in 2014 by the Government of Telangana) have contested the said figures.
A trans-exclusionary budget
The Union government presented an expenditure commitment of 2.23 lakh crore rupees in its 2023 Gender Budget Statement with an operational sum of 6 crore rupees (0.002 per cent of the Gender Budget) allocated to the SMILE (Support for Marginalised Individuals for Livelihood and Enterprise) programme under the Ministry of Social Justice and Empowerment. The proportion of allocation and the degree of socio-economic depravity festering within transgender communities defy any principle of economic proportionality.
The transgender population was estimated to be 487,803 in 2011, when homosexuality was still criminalised, and ‘transgender’ was not constitutionally recognised as a gender identity in India. Yet, various public institutions have time and again taken cognisance of this number to dilute the urgency of equal rights and empowerment for the transgender communities on the rationale of ‘not big enough to matter’.
The SMILE scheme has a sub-scheme focusing on the rehabilitation and welfare of transgender persons, which inadvertently imagines a transgender person only as a charity cause within a larger colonial framework of stopgap welfare. Forced rehabilitation, low-paying jobs (if any at all), an inaccessible justice system and no meaningful integration with a developing economy remain hard truths for a community systematically sized down by the Indian State.
Table 1: Gender budget allocation for the SMILE scheme (2021–24) (in crore rupees)
This image of ‘abject destitution’ comes in handy in justifying the State’s inaction of not investing in more robust mechanisms for integrating transgender persons within mainstream society through the tools of affirmative action, like reservations in public education and employment opportunities. It constructs a monolithic ‘street dwelling’ image of transgender persons, who have been uncritically left out of an equal claim to constitutional aspirations for a more substantive form of freedom. It privileges welfare over rights.
Despite being left out of the State’s programme for development, transgender persons have thrived and struggled to build capacities to aspire beyond the bare minimum. The Gender Budget provides various instances of policy paradoxes, where budgetary allocations have been made for implementing other Acts like the Persons with Disabilities Act, 1995, but none for transgender persons.
Table 2: Tabulation of various Act-based allocations in the present Union Budget (in crore rupees)
One could argue that the Union government has already allocated INR 365 crore to the Ministry of Social Justice and Empowerment to launch the SMILE scheme on February 12, 2022, for a five-year period (2021–22 to 2025–26). The scheme covers identification, rehabilitation, provision of medical facilities, counselling, education and skill development for a decent job, and self-employment or entrepreneurship.
However, this allocation needs a systematic dissection. First, the SMILE programme does not just deal with the issues of transgender persons. Transgender persons are only one of the interest groups covered under the programme. This one programme approach also downplays real mainstreaming, evident from the peculiar absence of transgender persons in other schemes pertaining to education, healthcare, employment, housing, violence and discrimination mitigation, and political representation.
Any form of targeted budgeting is envisioned as an ancillary tool developed to additionally work on bringing extremely vulnerable and otherised communities towards various mainstream development avenues. It is not a substitute for excluding marginalised stakeholders in the general budget and its schemes.
For instance, higher education programmes like the National Eligibility Test and the National Eligibility cum Entrance Test (Undergraduate) (NEET) have included the transgender category in their application form. But these examinations have continued to commit injustice to the community by not articulating any reservation for the community. It does not close the loop of identification –> representation –> capacity building. The buck stops at the first stage. For example, the national and state-level counselling for NEET does not have a transgender category in its roster system for reservation.
Transgender persons are invariably imagined as male or female candidates in the selection list, which is in contravention of the NALSA judgement and the 2019 Act. This reinforces hermeneutic forms of injustice, where a claimant of rights is forced to articulate and understand their oppression in the oppressor’s language.
Also read: International Transgender Day of Visibility and its significance for India
Further, any form of targeted budgeting is envisioned as an ancillary tool developed to additionally work on bringing extremely vulnerable and otherised communities towards various mainstream development avenues. It is not a substitute for excluding marginalised stakeholders in the general budget and its schemes. The present government has turned this understanding on its head.
Targeted financing of gender-sensitive legislation, policies, schemes and programmes to mitigate gender inequalities used a central strategy to address India’s gender problem. This approach holds three fundamental policy components — financing, monitoring and service delivery. However, the Ministry of Social Justice and Empowerment has not effectively implemented monitoring and service delivery.
In 2020, the Ministry of Social Justice and Empowerment proposed a National Action Plan for marginalised persons from Scheduled Castes, Other Backward Classes, Extremely Backward Classes, Denotified Tribes, sanitation workers (including waste pickers and manual scavengers), transgenders and other similar categories, named ‘Pradhan Mantri Dakshta Aur Kushalta Sampann Hitgrahi’ (DAKSH) Yojana. It was a multi-pronged strategy to enhance the competencies of ten lakh persons from the above-mentioned categories over the next four years.
The government has undertaken no public exercise or study to understand why transgender persons are missing from our education system.
However, in response to an application filed by me under the Right to Information Act, 2005 (MOSJE/R/E/21/00450), the Ministry had no data on how many transgender persons had enrolled under the DAKSH Yojana till 2022. Consequently, the ministry responded that transgender persons were not included under the programme — a digression from its original policy plan and submission.
Similarly, under the SMILE scheme, the ministry had created 12 garima grehs across India for transgender persons, but has time and again failed to take cognisance of the multiple complaints coming from various shelter homes concerning the non-disbursal of funds. The recurring operational cost of every garima greh is approximately INR 31 lakh per annum. With numerous garima grehs complaining of fund crunch, the economics fail human relief in light of bureaucratic red taping, and the failure to build a robust monitoring and evaluation system. The ministry has also not presented any plans to increase the coverage of these garima grehs across the states and Union territories in India for the current year.
Table 3: Relative cost share in the Gender Budget
The cost estimate of any other services for transgender persons under the SMILE scheme could not be tallied due to the lack of dedicated expenditure information. However, it still warns us of the systematic failure of our public infrastructure, in which financing and implementation of welfare programmes remain shrouded in bureaucratic haze.
Scholarships alone do not save transgender persons from indignation and discrimination in various learning avenues. Transgender persons continue to drop out of educational institutions because schools, colleges and universities remain ignorant of the unique needs and distress that transgender and gender non-conforming students face in disciplinary educational institutes.
Another example of incomplete policy loops is the education sector. The Ministry of Social Justice and Empowerment announced education scholarships for transgender persons without developing a comprehensive plan for identifying and mitigating the extreme levels of homophobia and transphobia embedded in our education system and its culture. Oversight and regulatory bodies like the National Council of Educational Research and Training, the Central Board of Secondary Education (CBSE), the University Grants Commission and All India Council for Technical Education remain complicit in their inaction.
The 2011 Census had identified 54,854 transgender children in the age group of 0–6 years (most likely an underestimation). During the period of 2020–23, most of these children should be between the ages of 10 to 16 years and availing education. In 2020, the CBSE reported that only 19 transgender students in Class 12 and six transgender students in Class 10 appeared for the board examinations. The government has undertaken no public exercise or study to understand why transgender persons are missing from our education system.
Scholarships alone do not save transgender persons from indignation and discrimination in various learning avenues. Transgender persons continue to drop out of educational institutions because schools, colleges and universities remain ignorant of the unique needs and distress that transgender and gender non-conforming students face in disciplinary educational institutes. Here, discipline is not used as a tool to inculcate basic social morals, but to expand one’s capacity to conform to passive forms of discrimination. All these instances foreground one sad reality: Transgender persons remain an afterthought in the policy-making of and for India.
Also read: Transgender students and faculty missing from Central Universities
Since the 1990s, transgender persons have been in a never-ending loop of seeking rights and recognition through judicial corrections rendered by various state high courts and the Supreme Court. The flooded corridors of the judiciary by transgender petitions do not indicate the benevolence of the justice system of India, but rather narrate the structural failure of all the three branches of the Indian State (legislature, judiciary and executive) in treating transgender persons as lesser political actors and second-class citizens in a plural democracy.
In our present discourse, we have witnessed how human rights are no longer fundamental entitlements that people are born with, but State concessions demanded in various houses of appeal. This story of exclusion should make everyone think and reflect on one important question: Is it possible to envision any form of liberation without meaningful political representation and capital redistribution?
