Shabnam Subhan, like most transgender people in Kashmir, was unable to study beyond high school. Now 44 years old, Subhan has taken up the only jobs Kashmiri society has for transgender people: matchmaking and singing at weddings.

But Subhan is finding it difficult to make ends meet. Increasingly, men are involved in the matchmaking business and as local bands have mushroomed, preferences in wedding music have changed. “Today boys and girls also choose partners themselves,” Subhan said. “And for weddings people now hire women singers or bands. We are left with no options.”

In National Legal Services Authority vs Union of India, 2014, the Supreme Court recognised transgender people as the “third gender” and affirmed that the social, political and cultural rights guaranteed by the Constitution apply to them as well. Yet, transgender people in Kashmir live a lived of penury and social exclusion. Though transgender communities have existed for centuries, they were kept out of historical accounts and ignored by the academia. It was only recently that the first ethnographic study of the community was published. And for perhaps the first time, their plight was registered in the Jammu and Kashmir Assembly this year. Presenting the annual Budget on January 11, Finance Minister Haseeb Drabu announced welfare measures for transgender people as a separate category. Unless they demanded otherwise, he said, transgender people would be treated as being below poverty line. They would all get free life and medical insurance as well as a monthly sustenance pension for those aged 60 and above and registered with the Social Welfare Department. Drabu also suggested the government bear the cost of gender reassignment surgeries for those who wanted them and proposed “an initial provision of Rs one crore for their welfare”.

These budgetary proposals will be supplemented by a transgender welfare policy that the government is currently formulating. It is a policy, however, that has already drawn criticism.

‘Highly insensitive’

One of the more contentious provisions of the policy, drafted by the social welfare ministry, envisages “medical boards” to determine a person’s gender and issue a “transgender certificate”. The boards would consist of the district social welfare officer, a social worker, “two representatives of the transgender community” as well as psychologists and psychiatrists.

The provision was challenged before the Jammu and Kashmir High Court by the gender rights activist Ajaz Ahmad Bund. In a public interest litigation filed in August 2017, Bund termed the proposal to establish medical boards “highly insensitive”. Moreover, he pointed out, there was no provision in the policy to challenge the board’s decision. The petition contended:

“Issuing the transgender certificate and involving medical as well as psychiatric team is highly repressive. It is in a way pathologising the gender and trying to put it again in the biological construct. The draft in its current form, does not uphold the right to self-identity gender, proposes physical and mental screenings by District Screening Committees to be used to certify trans, gender variant and intersex people as transgender.”

Bund also sought the implementation of the 2014 Supreme Court judgement, apart from “more humane” guidelines for evaluation and certification that do not infringe on “the right to dignity and privacy”.

On January 31, the High Court directed the state’s law department to file a response to the petition within two weeks. The state is yet to respond.

‘Lack of understanding’

Activists have also criticised the policy’s biological determination of gender. Kavita Krishnan, secretary of the All India Progressive Women’s Union, said gender identity could not be medicalised for it would undermine the idea of self-determination of gender by transgender people and open the doors for further harassment. “It reflects a fundamental lack of understanding about what it is to be a transperson,” she said.

Gender identity is not “based on a medical checklist”, Krishnan said, and its determination by a medical board is thus a violation of rights. Further, placing psychiatrists and psychologists on the medical board amounted to “making it a mental thing”, which is “extremely problematic and disgusting”. “In the name of a bill for protection of their rights,” she argued, “it is the exact opposite of it.”

Shehla Rashid Shora, former vice president of the Jawaharlal Nehru University Students Union who has been vocal about human rights and gender equality in Kashmir, said the government had been unable to realise its own ignorance when it proposed medical determination of gender. “It is more a question of identity than disability,” she said. “That is what the government needs to get right.”

Rashid asked the government to consult transgender groups, not only in Jammu and Kashmir but elsewhere in the country where transgender movements “are more advanced”. “The process is really important,” she said. “The government needs to take tanspersons on board and hear from them what they want. What is a medical board going to detect?”

Not by policy alone

Bund, who heads the Sonzal Welfare Trust, a non-profit working for the welfare of gender and sexual minorities in Jammu and Kashmir, welcomed the latest budgetary provisions for transgender people but felt that “more needs to be done”.

The trust had sent “comprehensive recommendations” for the policy to the government, Bund said, but “they picked and chose”. He argued that to relieve the plight of transgender people, the state must consider “investments such as reservation in education and government service” as well as skill development training for young transgender people.

Absent such investment, Bund said, the policy could “fail in its implementation like other schemes”. The biggest problem with the implementation, he added, is the government’s failure to reach out to transgender people. “They have to formulate a proper welfare policy with an inclusive approach,” Bund said.

However, an official in the finance ministry, who asked not to be identified, said the new budgetary proposals were only the beginning of a consultative process.

The official argued that hindrances in ensuring the welfare of transgender people came from within the society. “Who has stopped them from going to educational institutions? They are open to all,” he said. “There are acceptability issues because of which transgenders are cocooned in certain circumstances. There is no social system to support them.”

For welfare measures to succeed, he added, it is imperative that transgender people feel they have enough social acceptance to publicly own their identity. Census records show there are over 4,000 transgender people in the state, the official said, but the actual number may be higher since “many do not identify as one fearing social stigma”.

Subhan agreed that government policies alone will not address the plight of his community. “We have hopes from the society as well,” Subhan said. “Without the society’s acceptance, our existence is irrelevant.”