Legal Recognition of the Non-Binary Gender

Riya Raman is an LLB(H) student at Bennett University and has done her bachelors in English Honours. Her area of interest in law is Intellectual Property law, Criminal law and Media law and writing and research, literature, novels.

INTRODUCTION

It is imperative to comprehend the concept of 'gender' to fully understand gender research. Gender, according to the World Development Report 2012, is defined as “socially generated standards and ideologies that determine men's and women's behaviour.”[i] This includes the ideologies and behaviours associated with being a woman or male, a girl or a boy, as well as their connections. Gender, as a societal construct, varies from culture to culture and can also change with time.

Gender is related to, but distinct from, sex, which refers to the biological and physiological differences between females, males, and intersex people, such as chromosomes, hormones, and reproductive organs.[ii] Gender and sex are intertwined, but gender identity is distinct. Gender identity refers to a person's strongly felt, internal, and unique gender experience, which may or may not correlate to the person's physiology or birth sex.

Gender is one of the most complex aspects of human life. While many people identify with their birth gender, this is not the case for everyone. Some people don't easily fall into the categories of "man" or "woman," "male" or even "male" or "female." Some people, for example, have a gender that combines aspects of being either a man or a woman, or a gender that is neither male nor female, others don't identify with any gender, and some people's gender shifts through time.

Non-binary individuals use a variety of labels to define themselves, with non-binary being one of the most popular. In certain communities, such as ours, there are just two genders: male and female. Because binary means "having two components," the belief that there are only two genders is frequently referred to as a "gender binary." As a result, "non-binary" is a phrase used to describe genders that don't fit neatly into either male or female classifications. Genderqueer, agender, bigender, and other terminologies are also used. None of these names represents the same thing, yet they all refer to a gender experience that isn't solely male or female.

Non-binary folks isn't a new concept. Non-binary identities have been accepted by nations and societies around the world for millennia, therefore they aren't confused about their gender identity or following a new fad.[iii] Non-binary persons undergo medical operations to make their bodies more gender-congruent, but not all of them do. While not all of them require medical care to live a happy life, for many, it is crucial, if not life-saving.

DIFFERENCE BETWEEN TRANSGENDER AND NON-BINARY

The majority of transgender people do not identify as non-binary. While some transgender persons are non-binary, the majority of transgender people have a gender identity that is either male or female and should be treated as such. Being intersex is not the same as being non-binary. Intersex people have anatomy that does not conform to traditional male and female categories. The majority of intersex people identify as men or women.[iv] Non-binary persons aren't frequently intersex: they're born with bodies that suit traditional male and female classifications, but their innate gender identification isn't male or female.[v]

Cisgender people may presume that everyone with a certain type of genitalia is familiar with a specific set of pronouns, anatomy words, and sexual behaviours. Non-binary people, on the other hand, frequently have preferences for their genitals or looks that differ from cisgender standards. If two cisgender women want to have sex, for example, they might presume that breast stimulation is desired. A non-binary person with breasts, on the other hand, may prefer that their partner does not touch them since they create dysphoria.

Because non-binary persons are a subgroup of transgender people, there are numerous similarities between non-binary and transgender sex. The most recognised distinction is that non-binary people are less likely than transgender binary people to experience certain forms of dysphoria. Because everyone has their unique preferences, communication is essential whenever a transgender person has sex.

Unfortunately, the idea that non-binary people are "confused" or "passing through a phase" is widely held. This is not the case, however. Transgender persons establish their gender identity similarly to cisgender people, according to studies, and many transgender people become aware of their gender nonconformance as early as childhood. Non-binary people have likely felt this way about their gender for a long time before coming out as non-binary; it's not a phase. They may be genderfluid, which is another non-binary gender identification, even if their gender identity changes.

The inconsistency arises from the fact that the world does not see them as they see themselves. One start toward overcoming this gap is for them to list the pronouns they are comfortable with on their social media usernames. Shelja Sen tells The Hindu Weekend, "I don't see it as a craze, something fashionable or cool." “I believe it is because young people have found the language to communicate what they are going through,” says the child and adolescent psychologist, who works at Delhi's Children First with her husband, psychiatrist Dr Amit Sen. Children First provides clinical and counselling services to children and their families.

ACCEPTANCE OF SUCH GENDER

Coming out as non-binary is difficult anywhere in the world, but in India, in particular, the process can be laden with traumas and triggers that can cause long-term mental health damage. "60-70% of people who come to us thinking they might be non-binary are still figuring out their gender identity," says Vanishree B.N., a consultant psychiatrist at DrSafeHands, a digital platform for sexual and reproductive health and wellness as well as mental health. "The majority of these folks are between the ages of 25 and 35, while some persons in their 40s have also found themselves in similar situations."[vi]

Gender recognition or the questioning of "who am I?" begins at a young age. Children become aware of the physical distinctions between boys and girls by the age of two, according to the American Academy of Pediatrics, and by the age of four, they have a pretty solid sense of their gender identity. Acceptance from parents is essential for a child's emotional and psychological well-being. Parents, on the other hand, frequently struggle to come to terms with their situation, blaming themselves and their upbringing. Several parents call Hemangi Vyawahare, a queer affirmative psychotherapist in Mumbai and Bengaluru, concerned about if society would accept their child, whether their child would be bullied, sexually molested, and so forth. “What engulfs them is the realisation that the future they had envisioned for their child is no longer going to be the same,” she says.

PROVISIONS RELATING TO NON-BINARY GENDER

The Indian government is taking several steps to improve the acceptability of non-binary genders in society. The Transgender Persons (Protection of Rights) Bill, 2019, has been signed into law by Parliament. It was drafted with the welfare of transgender people in mind. The Lok Sabha passed the Bill on August 5, 2019, one month after it was introduced in the House, and the Rajya Sabha approved it on November 26. Although this bill was a start in the right direction, it did not achieve its goal. The Transgender Persons (Protection of Rights) Act bans discrimination against transgender people in areas like as education, employment, and the ability to rent or buy a home It also grants transgender people the "freedom to self-perceived identity," but it also compels them to register with the government if they want to be labelled "transgender." If a transgender person wishes to be legally recognised as a trans man or trans woman, they must provide documentation of gender confirmation surgery to the government. This is contrary to the idea of self-determination, and there is no recourse if an appeal for such a certificate is denied.

The Supreme Court stopped short of making an affirmative declaration to end discrimination against lesbians, gays, bisexuals, and transsexuals (LGBTs), but insisted that once Section 377 of the Indian Penal Code, which makes all homosexual behaviour a criminal offence, was struck down, all discrimination against them would end.[vii] The court maintained its stance that it would only consider the constitutionality of Section 377. It stated that ensuring that the community takes the lead will suffice. Some of them have come out to know themselves as a result of the Section 377 decision, or rather, they are no longer afraid. However, the mass of society continues to reject them. Even though they cannot be imprisoned, society, their family, and friends do not accept them. There is still a long way to go.

CONCLUSION

We now comprehend non-binary genders' struggle; but, simply understanding their struggle will not help them. Being polite and supportive of them is the very least we can do for them. Even if you've only recently learned about non-binary persons, being supportive and respectful of them isn't as difficult as you might imagine.

To respect someone who is non-binary, you don't need to grasp what it means. It's understandable if some individuals haven't heard much about non-binary genders or have difficulty understanding them. However, even if some people don't comprehend your identity, you should respect it. Use the name that a person has requested.[viii] Because your name may not reflect their gender identification, this is one of the most important components of being courteous of a non-binary individual. Don't inquire about a person's previous name. Make no assumptions about other people's gender. You can't tell whether someone is non-binary by looking at them, just as you can't tell if they are transgender by looking at them. If you're unsure about someone's pronouns, inquire. Non-binary people may use a variety of pronouns. Many non-binary people refer to themselves as "they," while others refer to themselves as "he" or "she," and still others refer to themselves in different ways. It may seem strange at first to inquire about whether someone should be addressed as "he," "she," "them," or another pronoun, but it is one of the easiest and most important ways to show respect for someone's identity. Advocate for policies that are non-binary friendly. Non-binary people need to be able to live, dress, and be respected for their gender at work, school, and in public areas. Understand that deciding which bathroom to use might be difficult for many non-binary persons. Many non-binary people may feel unsafe using either the women's or men's restrooms since they may be verbally harassed or physically attacked. Non-binary folks should be supported with the ability to use the restroom where they feel most safe. Learn more about non-binary persons by conversing with them. There is no one-size-fits-all approach to being non-binary. Talking with non-binary people and listening to their stories is the greatest approach to grasp what it's like to be non-binary.

REFERENCES

[i] Social Justice in the Jewish Tradition. https://rac.org/sites/default/files/Shabbat%20Tzedek%20%20Social%20Justice%20%26%20Jewish%20Tradition.pdf

[ii] From Gender to Eidos - The Spiritual Anthropologist. http://spiritualanthropologist.info/religion/from-gender-to-eidos/

[iii] Understanding Non-Binary People: How to Be Respectful and .... https://transequality.org/issues/resources/understanding-non-binary-people-how-to-be-respectful-and-supportive

[iv] INTERSEX 101 Everything you want to know! “Intersex .... https://interactadvocates.org/wp-content/uploads/2017/01/Intersex101-interACT.pdf

[v] ACT Government Publication template purple. https://www.cmtedd.act.gov.au/__data/assets/pdf_file/0019/781120/Resource-4-LGBTIQ-Glossary.pdf

[vi] Being non-binary and genderfluid in 21st-century India. https://lifestyle.livemint.com/news/big-story/being-non-binary-and-genderfluid-in-21st-century-india-111612960541533.html

[vii] Removal of section 377 enough to end discrimination .... https://m.economictimes.com/news/politics-and-nation/removal-of-section-377-enough-to-end-discrimination-supreme-court/amp_articleshow/64969181.cms

[viii] Non-Binary: What does it mean? — Merdeka Direct. https://www.merdekadirect.com/read/non-binary-what-does-it-mean

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