Despite the NALSA vs. Union of India judgement, the Union of India and the state governments are in contempt of it. Many state governments have left the duly processed affidavits of many transgender people in the limbo and have insisted on Sex Reassignment Surgery (SRS) certificates from government hospitals despite the Supreme Court terming such insistence on SRS as both immoral and illegal in its NALSA judgement. Many transgender people across India have not been able to get their gender change affidavits published in the gazettes of their state governments, as governments have a very reductionist approach to understanding gender that is dictated only by the anatomy of the transgender person which is quite in contempt of NALSA. Consequently, many transgender people have not been able to have their duly notarised affidavits published in the gazette despite completing their responsibility in terms of filing affidavits, notarising them, publishing their name and gender change in a national and a regional newspaper. In fact, almost all state governments do not have gender change forms yet. They ONLY give name change forms and we manually write and fit in gender change details within the open spaces on the form. This is the level of institutionalised transphobia entrenched in the state and its agencies.
The socio-legal and politico-economic conditions of transgender people in India are at a very strange juncture. India has recriminalized homosexuality through the Kaushal judgement on the one side and upheld the right to choose one’s gender identity vide NALSA vs. Union of India on the other. Soon after the Kaushal judgement in December 2013, many corporations rolled back many of their HR initiatives and practices for LGBT employees. This roll back was not reversed in April 2014 after the NALSA judgement. There are barely any Indian transgender people even in the so-called LGBT friendly corporations. There are many cases where corporations claim to be “LGBT friendly” without a single Indian transgender employee. At best, they show off a face or two of their American, Australian, Canadian, European transgender employees and claim to be LGBT inclusive in India. As transgender people, we are very glad that our brothers and sisters are out there as many open and out cisgender gay, lesbian and bisexual male and female employees. But, where are the Indian transgender employees even in those US, Canada and Europe based MNCs that claim to be LGBT friendly in India? Do employers carefully not hire transgender candidates to tactfully and strategically avoid coming under the ambit of NALSA? Not being gender dysphoric, cisgender gay, lesbian and bisexual brothers and sisters don’t stand out during their hiring stages but transgender people do. Would we agree with any employer who claims to be women’s friendly or inclusive of differently-abled people despite not having a single lady and/or a differently-abled person as an employee? To my mind, the same standards of advertising ethics should apply to those corporations that claim to be LGBT friendly with no ‘T’ representation in India. Unfortunately, the Advertising Standards Council of India (ASCI) is not a very vigilant body in India.
Not all facilities/offices of many Multi-National Companies operating in India have gender neutral rooms for transgender people to use. Many of them harness these legal loopholes to deny us access to rest rooms of our chosen gender, mis-gender us time and again and in some cases. Human Resources folks have gone to the extent of telling some of us that they won’t allow the transgender employee/s access to rest rooms of our chosen gender and won’t address the us by our chosen name and gender till such time we submit a government photo ID card with our chosen name and gender. We cannot get government photo ID cards viz. Aadhar, PAN card, Voter ID card etc. until our notarised affidavits get published in the gazette. This won’t happen pan India unless there is some collectivisation through a contempt petition Public Interest Litigation (PIL) in the Supreme Court for the repeated violations of NALSA by the Union of India and by many state governments. I am reminded of what Justice Ruma Pal, a retired senior Supreme Court judge once said at an National Law School lecture some years ago “The emerging face of some corporations in India seems to be more of that mind continuously and relentlessly innovating (pause)…to find legal ways of doing unethical things”. Some corporations are precisely trying to just do that and that has to change.