"...this Court is not breaking any new ground. It is merely stating the
obvious. Sometimes to see the obvious, one needs not only physical vision in the
eye but also love in the heart..."
The Sociological Difference Between Sex And Gender
After 3 months of discussions, the Ministry of Social Justice and Empowerment
presented a Report of the Expert Committee on the Issues relating to Transgender
Persons. This report oscillates between a broad definition of transgender
as an ‘umbrella term’ for a variety of gender non-conforming identities and
practices, as well as a more restricted definition based largely on hijra and
trans women identities.
Trans men and trans masculine identities have not been sufficiently represented
in this MSJE report.
However what even they agreed upon was this - that the terms sex and gender
cannot and should not be confused. They are separate and while sex refers to the
biology, gender refers to the person’s own understanding of themselves innately.
Now this understanding
, put very simplistically, can vary from person to
person and even change within a person over time.
Sociologists everywhere will agree that on the following differences between sex
- Although related, "sex" and "gender" are best understood as distinct
- There are more than two sexes and more than two genders;
- How people identify in terms of sex or gender may not "match" how other
people perceive them and lastly,
- Both identities and classifications can change over a person's life
Many contemporary gender scholars see sex and gender as distinct, though the
concepts are often conflated in both academic and non-academic contexts.
refers to the classification as male/female/intersex based on
genitals, chromosomes, and/or hormone levels. Although this schema draws on
biological criteria, research demonstrates that the specific distinctions are
neither natural nor stable; our beliefs about sex have varied widely over time,
differ between cultures, and tend to erase naturally occurring differences in
physical development such as "intersex" people.
"Gender" typically refers to behaviors associated with membership in a sex
category. However, gender is not determined by sex. The gender roles associated
with each gender may or may not coincide with the sex they were labelled at
birth. Thus, there is significant gender diversity within both cisgender and
transgender categories. Therefore, gender determinations made by others may not
align with how people see themselves.
From this definition it is clear that the importance of ‘self-identification’ is
paramount and this understanding that a person has of themselves should be
The Indian View
The MSJE Report agrees with the above view but here makes a distinction in the
terms gender identity and gender expression. Gender expression is external and
socially perceived. Gender expression refers to all of the external
characteristics and behaviors that are socially defined as either masculine or
feminine, such as dress, mannerisms, speech patterns and social interactions.
Whereas Identity is how the person feels about themselves.
Thus, irrespective of how their gender is perceived, their identity may not
necessarily be congruent with this perception. This sounds like an unnecessary
distinction but it is made with the intention of protecting those who may not
necessarily be ‘identifying’ as a transgender person but face harassment because
of the perception of people around them. The term ‘transgender’ gives an idea
about the degree to which someone identifies with the sex they were assigned at
For example: Transgender male, transgender female, transgender nonbinary (again
an umbrella term for anything between male/female or something completely
different). Thus, it is clear that the word that follows transgender is what
communicates information about the way someone experiences and understands
gender, as well as how they might want to be referred to.
Let us look at how the Constitution guarantees a life of dignity to a
April 15th, 2014. This is the day the historic NALSA judgment was decided: By
recognizing such Transgenders as third gender, they would be able to enjoy their
human rights, to which they are largely deprived of for want of this
recognition. The issue of transgender is not merely a social or medical issue
but there is a need to adopt human right approach towards transgenders which may
focus on functioning as an interaction between a person and their environment
highlighting the role of society and changing the stigma attached to them.
On this day it was held that all the Fundamental Rights guaranteed to a person
would be guaranteed to Transgender persons as well. Many want to hail this day
as National Transgenders Day.
The concept of right to equality in the Constitution is prescribed under the
provisions of Article 14, 15 and 16. Freedom and equality are further
strengthened by the Court's observations on dignity, privacy, personhood and the
free spirit of the human being, which are necessary for the human personality
to flower to its fullest. Our Constitution grants us various fundamental
freedoms. In theory. That’s all these freedoms have become.
When this freedom is not seen entrenched in the way we speak - in our language,
this raises questions about the degree of acceptance of transgendered people in
denotes gender, whereas female
While the judgment is one that has been lauded (see previous mention of
celebrating National Transgenders Day on the day of the judgment), the Court has
committed an error by confusing the basic conceptual difference between the two
terms gender and sex.
An understanding of these terms is all the more important as the Court’s primary
duty is dealing in the semantics of laws, rules and interpreting them in a way
that is devoid of inconsistency. However, in the NALSA judgment, the court has
employed the terms interchangeably.
Further, the judgment has neglected the grammatical aspect of the word
‘transgender’ by employing it at various places as noun instead of adjective.
What this means is that the transgender must always be used as a descriptive
word, that is a word preceding a noun (man/woman etc.) The term is similar to
‘female’ and ‘male’ and its usage as a noun is considered offensive to the
people belonging to the trans-community. It reduces them to their reproductive
parts and abilities which is dehumanizing and exclusionary.
We cannot leave out the recent case of Arun Kumar v. Inspector General of
This is the first judgment in India where the right to marry under Article 21 of
the constitution has been affirmed for transgender persons. It was held that
‘bride’ under the Hindu Marriage Act would cover transgender persons who
identify as women. Thus, the Court recognized the right to self-identify one’s
The Trans Bill 2020
The revised Trans Bill 2020 has caused quite an uproar on account of it being
labelled regressive, although subdued since voices quite literally are unable to
be heard in light of the pandemic that hit the world in 2020. Besides the
laughable sentence that an abuser of a trans person would suffer (i.e. 2 years,
whereas the same abuse perpetrated on a woman would result in 7 years minimum),
the main issue that activists and the trans community will face is the loss of
the right to self determination which had been guaranteed under the NALSA
The Bill mentions the right to self identification but a district magistrate and
a government doctor must determine if they medically qualify
The Bill fails to stand the test of affirmative action as well. There is no
mention of helping the trans community in the early stages of life and the
reservations are simple under the OBC category. It completely fails to realize
the intersectionality that a trans person may face.
For example, Someone who is a Dalit, an Adivasi, a Muslim and a transgender
person would only be treated the same as a person in any one of those
minorities. The term ‘intersectionality’ emerged from a study of violence
against black women in the United States. It was found that combatting racism
was a black man’s problem and similarly, sexism, a white woman’s problem. Thus,
black women had been rendered invisible.
It is in this scenario that the formulation of an intersectionalist approach for
understanding the inequalities in the power system of India is highly
significant. Caste, class, gender and language all need to be addressed
separately as well as in conjunction. An understanding of the linkages between
these factors is therefore imperative in the application of Article 14, 15, 19
and 21 in practice.
How can language change to help bring about an inclusivist society?
When something as fundamental to human existence - the art of communication
through language itself changes to become non-binary, we will be able to see
change in the mindsets of people. Of course this will be a slow process but one
that needs to begin now. This rather ‘radical’ change, that is the power of
Language in changing mindsets at the root of the issue.
To illustrate, pay close attention to the next sentence and you will find that
something subtle yet very apparent stands out. The women and men were seated at
the President’s table as she held out her hands as a sign of welcome.
On reading this, the first thing that jumps out at you is the order of the words
women and men. It is not common that in such a context you would be likely to
see it phrased in that way and secondly, one probably would assume that the
President is not the one whose hands were held out as a sign of welcome. There
is a simple reason for this - a woman could not possibly be the President. This
is called an unconscious bias and every one of us faces this.
This example was to simply illustrate the power of language in the changing of
our mindsets. When institutions like the legislature and the judiciary
themselves do not correctly use the terms that will propagate an inclusive
mindset, then we must ask ourselves how we expect the Fundamental freedoms and
right to live with dignity that is enshrined in our Constitution to find a place
in the lives of transgendered persons. Trans linguistics is committed to social
and linguistic justice for gender non-normative communities.
- Simone De Beauvoir, The Second Sex, (Vintage Books, Print 1989).
- Daniel Miller, Gender, How The World Changed Social Media 114–127 (Ucl
Press, London, 2016).
- Kimberlé Crenshaw Williams, Mapping The Margins: Intersectionality,
Identity Politics, And Violence Against Women Of Color, The Public Nature of
Private Violence, 93-118 (Routledge, 1994).
- Anne Hammarström & Klara Annandale (2014). Central Gender Theoretical
Concepts in Health Research, JECH 10.1136/jech-2013-202572 185-190
- Laurel Westbrook & Kristen Schilt, Doing Gender, Determining Gender:
Transgender People, Gender Panics, and the Maintenance of the
Sex/Gender/Sexuality System, 28 Gender and Society, 32–57 (2014).
- Lal Zimman, Transgender Language, Transgender Moment: Toward a Trans
Linguistics, The Oxford Handbook of Language and Sexuality, (2020).
- Ministry of Social Justice and Empowerment, Report of the Expert
Committee on the Issues relating to Transgender Persons, 27-1-2014
- Indian Supreme Court Recognises Right to Self-Identify as Third Gender,
THE EQUAL RIGHTS TRUST, (Feb 14th 8:43AM)
- Gender Definitions, World health Organisation, Regional Office for
(last visited on April 16t, 202l).
- Mikkola, Mari, Feminist Perspectives on Sex and Gender, The Stanford
Encyclopedia of Philosophy (Fall 2019 Edition), Edward N. Zalta (ed.),
visited on April 16th, 2021)
- Human Law Rights Network, People’s Inquiry into the status of the
implementation of the NALSA judgment (November 2016), http://reproductiverights.hrln.org/wp-content/uploads/2017/04/nalsa-ipt-report.pdf
(Last visited on April 16th, 2021).
- International Society for Sexual Medicine, Sexual Health Q & A - What is
the difference between transsexual and transgender?, https://www.issm.info/sexual-health-qa/what-is-the-difference-between-transsexual-and-transgender/
(last visited 16th April, 2021).