New Delhi: The controversial Citizenship Amendment Act (CAA), finally enforced on the evening of March 11 after four years of debate, has sparked varied reactions. One crucial aspect that hasn’t received adequate attention is the potential impact of the legislation on the already vulnerable queer, particularly the transgender community.

According to the national census data of 2011, the recorded number of transgender persons in India is 4,87,803. However, activists have highlighted this as a significant misrepresentation.

Rohin Bhatt, a lawyer practicing at the Supreme Court who identifies as non-binary, explained India is a signatory to United Nation’s International Covenant on Civil and Political Rights (ICCPR). Under Article 26 of the ICCPR, discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status is prohibited and this act goes against it.

A transgender person might have access to a Transgender ID Card but not all of his documents might have their corrected name. Adding on to it, the lawyer said, “In India, when an individual identifies as transgender and undergoes the official process, they typically receive a certificate and a Transgender ID card. These documents solely indicate their gender identity and do not provide any information regarding citizenship status.”

But even having transgender ID card is an ideal scenario which not many from the community have had the access to. In December 2023, statistics provided by the Ministry of Social Justice and Empowerment in response to a query by Lok Sabha MP Jayadev Galla said more than 3,200 applications were pending for over 30 days to obtain a transgender certificate and ID card.

Additionally, the data revealed that the government had received a total of 24,115 applications in late 2023, out of which 15,800 certificates were issued.

A very visible instance of this was highlighted during the pandemic. In 2020, amid the Covid-19 pandemic lockdown in India, the government announced financial assistance of Rs 1,500 and ration supplies for each transgender individual. Despite an estimated population of 488,000, only 5,711 transgender individuals received the bank transfer, and 1,229 received ration supplies.

Tinesh Chopade, advocacy manager at the Humsafar Trust, an organization dedicated to advancing health, advocacy, capacity building and research for the LGBTQIA+ community, stated, “When we requested community members to provide their bank account details for forwarding to the government, approximately 80% informed us that they do not possess bank accounts. This situation primarily arises from a lack of documentation.”

A trans person from Assam who wishes to remain anonymous pointed out that during the draft of NRC, which came out in 2017, over 2,000 trans persons did not find their names.

In Assam, nearly two million individuals failed to feature in the final NRC list in 2019. There were 2,000 transgender individuals among those who were excluded from the final NRC list.

One of the key criticisms voiced by queer and trans activists against CAA-NRC-NPR is the considerable challenge of obtaining the required documents. Many of those excluded either possessed birth documents using their former names or faced difficulties in obtaining original copies of documents from their families.

“Facing government-appointed bodies and authorities already makes us vulnerable to different forms of harassment and discrimination,” said the trans person, adding that the whole process will open up a plethora of problems in their already complex life.

They are also worried that the process might force out some of the trans persons who were not open about their identity because of the conservative society.

Ritwik, an activist who uses They/Them pronouns, asserted that the whole LGBTQIA+ spectrum should be taken under consideration. “The CAA is being portrayed as a humanitarian act by saying the government is providing aid to ostracised communities. Why is this act then based on religion, while there are various examples to show how gender and sexual minorities are being persecuted around us?”

They further raised the point of discrimination of the LGBTQIA+ community in Pakistan and Afghanistan.

As per the Human Dignity Trust, in both Pakistan and Afghanistan, laws criminalizing same-sex sexual activity exist, with penalties ranging from imprisonment to death under the Sharia law. These laws, inherited from colonial periods or implemented under Islamic codes, disproportionately affect LGBT individuals, particularly transgender women who face heightened vulnerability to violence.

Despite some contested interpretations and occasional enforcement, discrimination and violence against LGBT people persist, including murder, assault and denial of basic rights and services. The situation has worsened in Afghanistan following the Taliban’s resurgence in 2021, leading to an increase in violent hate crimes and murders targeting LGBT individuals.

Ritwik also highlighted the logistical difficulties a trans person might face due to the CAA. 

“Transgender community faces documentation issues in India. They face everyday hurdles in accessing even basic amenities. When the NRC was implemented in Assam, we got to see that even a minute mistake in the name caused many people to be left out of the draft. Many trans people have had names changed in their documents, but there is no clarity about how one will navigate through that,” the activist added.

They highlighted another concern regarding the CAA, pointing out that while the act sets December 31, 2014, as the cutoff date to determine migrant status, the Transgender Protection Act, which allows individuals to self-identify their gender, was enacted in 2019. This might lead to confusion when it comes to assessment.

The National Register of Citizens tracks legacy data to determine who is a natural citizen, which can act as a demoralizing function.

“Transgender individuals, particularly those belonging to communities like Hijra and Kinnar, may have migrated and lack connections to their paternal and maternal families. Consequently, they might not possess the necessary documents to prove their legacy data, despite no fault of their own. Returning to their families to request such documents is often not an option, as many face rejection or disownment,” they said.

Digital Divide — A Fact Overlooked

A very interesting step by the government has been in making the application process for CAA online, disregarding the concept of the digital divide’. The digital divide refers to the gap between demographics and regions that have access to modern information and communications technology and those who don’t have the access.

According to scholar Brindaalakshmi, “The majority of the transgender population in India lacks access to mobile devices and regular internet connectivity. In a study conducted by the Centre for Internet and Society, it was estimated that not more than 10–15 percent of transgender persons use a digital device. Additionally, the transgender population also carries the burden of low digital literacy along with low literacy.”

‘India Inequality Report 2022: Digital Divide’ further states that only 31 percent of the rural population uses the Internet compared to 67 percent of their urban counterparts.

Also Read-