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Aug 26, 202216 min read

BEYOND BINARIES - Transgender Inclusivity in Education and Employment

Updated: Nov 24, 2022



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1. Introduction


India’s vision to become an inclusive and equal society started taking root in the constituent assembly debates and continues to date in current legal discussions. To answer if our society is inclusive or not, one of the questions we need to ask ourselves is how many transgender friends/peers do we personally know and what is our perspective towards them?


In the wake of normalising binary gender expressions, the third gender is left missing from the common discourse. Indian society operates on binary gender identities and excludes the ‘others’ from the developmental process. The transgender community lacks inclusivity in our current social and political structures. (Patnaik)


The paper pivots around the contemporary, however, overlooked status of the so-called ‘others’ in our society as a whole. Moreover, the paper touches upon the areas of systemic deterioration of their position in contemporary society vis-à-vis the historical times. The paper primarily evaluates the association between transgender identity and its literacy and employment rate. It traverses from understanding the associated issues and key initiatives taken to empower the community.


1.1. Understanding ‘others’


Gender and sex are different concepts that are sometimes used interchangeably. Gender is a social construct and sex is biologically determined at birth. Gender identity and expression are complex and layered characteristics, it varies for every individual. Similarly, an intersex person is sometimes identified as a transperson, but the two are separate things like gender and sex.


An intersex person is one who is biologically different from their female and male counterparts. They are genetically born with reproductive anatomy that does not match either ‘female’ or ‘male’. Transgenders are people whose gender identity does not pertain to their biological sex. Transgenders include transmen, transwomen, male-to-female (MTF) and female-to-male (FTM). A transman is a man who is assigned the identity of a female at birth and a transwoman is a woman assigned a male identity at birth.


Transgender is not a term limited to persons whose genitals are intermixed but it is a blanket term for people whose gender expression, identity, or behavior differs from the norms expected from their birth sex. In its broadest sense, transgender encompasses anyone whose identity or behaviour falls outside of stereotypical gender norms.


Non-binary is a diverse umbrella term that describes gender identities outside the gender binaries. It includes transgenders, intersex people, agender, gender fluid, demigender, multigender and others. It also includes people who view their identity and experience as fluid or ever-changing. Some non-binary people may identify themselves as transgender, but others may still identify with their sex assigned at birth to a certain degree. Hence, it should be clear that transgender and non-binary are different sets of identities but they can coincide for some people. The nuances in gender variance have always existed in our society and there is enough evidence to prove the same.


1.2. Historical Background


Since the beginning of time and the existence of mankind, transgenders have been very much an integral part of society. In ancient society, transpersons experienced a rich heritage as they were placed on divine pedestals. Also in the Vedic and puranic literature such as Kama Shastra and Manu Smriti, they have been referred to as ‘tritiyaprakriti’ or the third gender (Pandeyar). During medieval times, trans people were assigned famous roles of political advisors, administrators, and generals in the Royal Mughal courts (Michael).


With the advent of the British colonial administration, the transgender community as a whole started to face ostracisation as they began to be considered a separate caste. The Criminal Tribes Act, of 1871 vigorously criminalized the community and denied them civil rights. The Act was repealed post-independence in August 1949 and former ’’criminal tribes’’ were denotified in 1952 (Soutik). Ever since the community has been facing the problem of stigma, harassment, and discrimination throughout their life (Indian Institute of Legal Studies).


2. Contemporary Status


According to the Census Report of India, 2011, the transgender population is 4,87,803 in India with the highest in the state of Uttar Pradesh. Despite issues of exclusion and accuracy, the census provided an estimate of India's transgender population. Inclusivity starts with identity and for the first time ever transgenders were officially identified in the Census exercise of 2011. It’s a major step, as to bring about any major policy shift a reliable data set is required to deploy resources.


Officially, the government undertakes sex surveys only in a binary male/female format while tagging the rest in the ‘other’ category assuming them to be ‘trans’. Those with transgender, intersex, and other non-binary identities in their true forms, therefore, are excluded from the representation. A person, who identifies as neither male nor female (sex associated at birth) and chooses to express as different from the binary set, can choose this option. Hence, the ‘other’ head is mere tokenism.


2.1. Problems Faced


The transgender community all around the globe has dealt with the problem of being different. Trans people are born with particular sex but their gender identities do not conform to the same. They are met with discrimination on their sexual orientation and this is termed transphobia. Most of the time, the number of cases of sexual discrimination met by transgenders goes unreported. The lack of trust in government officials further highlights the need for inclusivity in the process. Transgenders have been a part of popular culture, yet the issues faced by them are unaddressed. (Chatterjee)


2.1.1. Socio-Cultural Barriers

  • Homelessness at birth

  • Lack of access to public infrastructure

  • The problem of valid documentation

  • Lack of legal protection

  • Stigma, Harassment, and Discrimination (National HCH Council)


2.1.2. Financial Barriers

  • Unemployment

  • Lack of education and right skill set

  • Excluded from the formal workforce

  • Difference in wages

  • Excluded from the social security bracket


2.1.3. Health System Barriers (Safer, et.al.)

  • Lack of access to healthcare facilities

  • Exclusion from health insurance coverage

  • Physical and mental violence - high levels of sexual abuse and assault, Depression, alcohol abuse. (Kussin-Shoptaw et al. )


3. Education and Employment


Education provides essential skills and knowledge for carrying out economic activities that produce monetary resources. Education not only provides social recognition but also financial independence through employment generation. Hence, it becomes imperative to study these key metrics as it forms the basis of inclusivity and development for the community.


3.1. Literacy Rate


As per the Census Report of 2011, the literacy rate among transgenders in India is 56.0 percent, compared to 74.04 percent literacy in the general population. These figures are expected to improve after a decade of implementation of various transgender policies. The highest literacy rate of transgenders is found in the state of Mizoram followed by Kerala. The table below illustrates the relationship between transgenders’ education and population distribution. (Census 2011)



States

Transgender population (in nos)

Transgender population

(in %)

Male Literacy

(in %)

Female Literacy

(in %)

Transgender Literacy

(in %)

State Literacy

(in %)

Andhra Pradesh

​43,769

8.97

74.88

59.15

53.33

67.02

Maharashtra

40,891

8.38

88.38

75.87

67.57

82.30

Bihar

40,827

8.37

70.32

53.57

44.35

69.83

Kerala

3,902

0.79

96.11

92.07

84.61

94.00

Mizoram

166

0.03

93.35

89.27

87.14

91.33

Source: Census Report of India, 2011


A correlation can be drawn between outperforming states for general (male and female) and transgender children. States that have better performed in education than the other states are also outperforming in transgenders’ education. Kerala and Mizoram are among the highest literate states in India for both general and transgender education. It can be inferred that inter-state performance in transgender education can be linked to its overall literacy rate. Yet, the intra-state difference remains. After comparing the literacy rate among male, female, and transgenders within a state, it can also be inferred that transgender children are lagging behind in education compared to their peers.


Additionally, among many who attend schools face severe discrimination. According to an NHRC report of 2018, 52 percent of transgenders were harassed by their classmates and teachers, forcing them to discontinue their studies. Inclusion of transgender in schools and colleges remains a big challenge. Till 2004, there was no focus on including transgenders in the mainstream and were denied right towards education. (Outlook India)


RTE policy only encompasses equitable access to education for all but does not ensure imparting quality education with an inclusive environment. (Mankatalia) Due to poor education or lack of skills, government or private jobs remain inaccessible for the transgender community leading to many factors associated with inequality in employment and socioeconomic status. (Mittra)


3.2. Employment Rate


Source: Indian Labour Bureau Report 2015-16


The above graph represents distribution of employed transgenders in different categories of employment. Transgenders are leading in the self-employed category at 44.9% followed by casual labor at 31.5%, wage/salary earners 19.6% and least in contractual workers category. The employment rate is too low because they are not expected to do any government or private jobs. Hence there's a high rate of self employment and casual labor (Naik).


3.3. Employment Issues (PLFS Survey, MoSPI)


Transgenders are generally denied dignified jobs and are forced to take low paying or menial work for livelihood like badhais, dancing, singing and begging. They are compelled into sex work which has high health-related risks. They are deprived of basic health facilities which lead them to be more at risk of living with HIV and other severe health issues compared to the general population.


According to a study conducted by the National Human Rights Commission in 2018, 92 percent of transgenders are deprived of the right to participate in any form of economic activity in the country. Around 89 percent of transgenders have no jobs for even qualified ones. Only 6 percent transgenders were employed in private sectors or NGOs, while the monthly income of only 1 percent transgenders was noted to be above Rs.25,000; the majority-26.35 percent earn between Rs. 10,000-Rs.15,000. (NHRC Annual Report 2018-19)

Once the wage and salary earners are employed, the focus should be on improving the quality of work and the income derived from it, not only on the number of jobs. A research done by Periferry, an organisation involved in creating job opportunities for the Transgender community, estimated that out of the total transgender population only 5 percent are gainfully employed. (Venugopalan &Verma)


Additionally, there are many workplace barriers that they face after being employed. Due to lack of shelter and inadequate support to relocate, trans people quit their jobs. Landlords refuse to give them accommodation to settle in new cities for work. Also the employers have no legal obligation or incentive to step in and fight against any such discrimination. Inadequate non discrimination protections with no limited legal protection makes them less inclusive in the workplace.


3.4. Social Security Access


Gender gap in employment is also seen in hiring bias, inability to update identity documents, wage inequities, etc, which makes access to social security benefits difficult. The table below illustrates the difference in transgenders and males /females pension subscription.


NPS Subscribers - October 2021

Existing Subscribers during the month

Central Govt. - Monthly nee subscribers

State Govt. - Monthly nee subscribers

Non-govt. - Monthly nee subscribers

Total Monthly new subscriber

Males

5,156,944

9,118

28,457

9,906

47,481

Females

1,657,842

2,049

16,285

3042

21,376

Transgender/s

115

1

10

1

12

Source: NPS data as on October 2021, Pension Fund Regulatory and Development Authority


The gap between transgenders and both the cisgenders is wider than the gap between males and females. With merely 12 new subscribers, transgenders are excluded out of the social security bracket and continue living and working in poor conditions. Their social transformation progress is slow and continues to be exposed to various kinds of risks. Need of the hour is to have more people from the community access the pension system for achieving financial inclusion.


3.5. Community within community (SCs and STs)



The Scheduled Caste (SC) and Scheduled Tribe (ST) transgender population is 81,133 and 293 respectively. Uttar Pradesh has the highest SC trans-population while Andhra Pradesh has the highest ST population of the community. (Census Report of India, 2011). There are certain socio-cultural groups of transgender people who are identified as Hijras, jogappas, Sakhi, Aradhis etc. and there are people who do not belong to any of the groups but are referred to as transgender person individually.


A host of socio-cultural groups within the trans community are the most marginalized among them. Caste discrimination exists within the trans community. Many times, trans people from the lower caste are denied acceptance in the trans community. Due to social stigmas and fear of discrimination, there are a number of transgender people in India who have not disclosed their caste identity.


Understanding their diverse caste backgrounds would help in the effective implementation of policies. Different states require different forms of support from the Centre for implementing such policies. (Sampath). Various laws and policies have been passed in the recent past that eliminates the fears and legally empowers the community.


4. Landmark Initiatives


Transgenders are now officially recognized as the third gender. Legal empowerment strengthens their capacity to exercise rights, either as individuals or as members of the community. Legal protection ensures safety against exploitation and helps in governing the behavior of people in accordance with values enshrined in our Constitution.


4.1. Constitutional Provisions


The Constitution of India ensures equality, freedom, justice, and dignity of all individuals and implicitly mandates an inclusive society for all including Transgender persons. Article 14 of the Constitution guarantees equality before the law. Article 15(1), 15(2), and 16(2) in explicit terms prohibit discrimination on the ground of sex. Article 19(1) ensures all citizen's freedom of speech and expression. Article 21 expresses the protection of life and personal liberty for all individuals. Article 41 of the Constitution of India enjoins the States to make effective provisions for securing the right to work, education, and public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want within the limit of its economic capacity and development (Constitution of India).


4.2. NALSA judgement


The transgender community had not been given the status to enjoy their rights until the 2014 judgment of the Supreme Court (SC) of India. The case of National Legal Services Authority v. Union of India established the foundation for the rights of transgender persons in India by recognising ‘transgender’ as the ‘third gender’ and laying down several measures for the prohibition of discrimination against transgender persons and protection of their rights.


The transgender community was given the recognition of the “third gender” having the right to live with human dignity in society. Prior to the judgement, the community was disregarded, not given an equal position in society and neither were any equal opportunities available to the community as a whole. The judgment recognized the term ‘person’ as a gender-neutral term used in the Constitution and therefore, any sort of denial of rights to the transgender community, recognized as the third gender would be violative of Article 14 and 21 of the Constitution of India. This ensured the right of the community to live a dignified life in society lifting up the fear of being sexually abused or harassed.


The decision directed affirmative action on part of the Central and the State Governments to ensure non-infringement of fundamental rights, public health and social welfare of the community. It is only in recent times that they have been given the necessary social security and the ability to integrate into the community. An integration of this marginalized community is the essence of ensuring welfare for all and being inclusive.


4.3. Transgender Persons Act, 2019


4.3.1. Key Features of the Law


  • Definitions of ‘person with intersex variation' and ‘transgender person’ have been provided to include trans men and trans women (whether or not such person has undergone sex reassignment surgery, hormone or other therapy).

  • The Act prohibits the discrimination of transgender persons at educational establishments, in employment or occupational opportunities, healthcare services and access to public facilities and benefits. It further reinforces transgender persons’ right to movement, right to reside, rent, or otherwise occupy property.

  • Act provides for a right to self-perceived gender identity and casts an obligation on the district magistrate to issue a ‘certificate of identity’ as a transgender person, without the requirement of any medical or physical examination. If the transgender person undergoes medical intervention to change sex either as a male or female and requires a revised identity certificate then they would need to apply to the district magistrate along with a certificate issued by the medical superintendent or chief medical officer of the concerned hospital.

  • Every establishment has been mandated to formulate an equal opportunity policy for transgender persons with certain specific information as prescribed under the law. This will help create inclusive establishments like inclusive education, etc. The process of inclusion also requires creation of infrastructure facilities like separate wards in hospitals and washrooms (unisex toilets).

  • Every establishment has been mandated to designate a person as a complaint officer to handle complaints from transgender persons.

  • The government has been mandated to formulate welfare schemes and programs which are transgender sensitive, non-stigmatising and non-discriminatory.

  • The government has been mandated to set up separate Human Immunodeficiency Virus (HIV) sero-surveillance centres to conduct sero-surveillance for transgender persons; provide for medical care facilities including sex reassignment surgery and hormonal therapy; and provide for a coverage of medical expenses by a comprehensive insurance scheme for surgeries and other therapies.

  • Constitution of the National Council for Transgender Persons (NCTP) to advise the government for the formulation and monitoring of policies and redress the grievances of transgender persons.

  • Offences, like indulging transgender persons in forced or bonded labour or denial of access to public places or physical, emotional or sexual abuse. Other offences committed under the provisions of the Transgender Persons Act, are punishable with imprisonment for a term of at least six months, extending up to two years along with fine Department of Social Justice and Empowerment (DOSJE)


4.3.2. Challenges


The Transgender Persons (Protection of Rights) Bill was passed in the Lower House in August 2019. Even though the act does away with some controversial provisions that existed in the 2018 bill, including the criminalization of begging, it faced criticism because it does not give transgender people the right to self-identify their gender without having had sex reassignment surgery.


As per law, the District Magistrate and the screening-committee at the district level will assign a gender certificate to an individual who has undergone a sex reassignment surgery. If one has not undergone sex reassignment surgery, one can only be identified as transgender, not as male or female. Transgender people believe this is coercing them towards surgery whereas the demand for free or low-cost sex reassignment surgery has also not been met.


The Act, 2019 does not comply with Article 15 of the Constitution that prohibits discrimination on grounds of sex. The basic requirement of the certificate of identity under Section 5 of the Act, 2019 for the legal recognition of the particular person as a transgender is a violation of Article 15 of the Indian Constitution. The provision creates a distinction between the other sexes and transgenders as there is no requirement of any certificate of identity by the male or female gender, but only the transgenders have to fulfill the criteria, thus opposing the basic objective of Article 15 and creating sex discrimination (Solanki)


4.4. SMILE


Support for the marginalised Individuals for Livelihood and Enterprise (SMILE) is a Central Sector Scheme (CSS) with a sub-scheme ‘Comprehensive Rehabilitation for Welfare of Transgender Persons’ that aims to create an inclusive society for transgenders to live a life of dignity and respect. The scheme ropes in the support of state governments, urban local bodies, voluntary and community/philanthropic organizations, and others for effective implementation. It focuses extensively on rehabilitation, and covers several targeted welfare measures of medical facilities, counseling, education, skill development, economic linkages etc. (SMILE) The interventions made through the scheme are pictographically explained below:



  • Scholarships are given in the form of financial assistance for school (9th to 12th) and higher education (diploma or graduation)

  • Composite Medical Health includes health insurance for gender reaffirmation or post-operative surgeries with other medical treatments

  • Recognition and appreciation provides incentives and encourages skill training and employment opportunities

  • Garima Greh - shelter homes for destitutes and abandoned transgenders in more than 12 cities in India

  • Skill Development and Training for capacity building and skill enhancement

  • Transgender certificates and identity cards are granted through the national portal for transgenders (DOSJE)


In the recent past, laws were made for overall development of the community. The gap between the process of law-making and its effective implementation is still wide. Ensuring that these benefits reach targeted individuals require representatives from the community in the process of policy formulation with on-ground activism. The goal of achieving transgender inclusivity requires more than legal interventions.


5. Recommendations


5.1. Reservation for Transgenders


The community comes under the category of “disadvantage group” defined by the Right to Education (RTE) Act. This means that they are eligible for reservation under the Economically Weaker Section (EWS) and disadvantaged student’s category for admission in schools. This saw backlash from trans people across sub-castes for horizontal reservations instead of a blanket policy.


The SC, in the NALSA verdict (2014), directed the Union and state governments to treat transgender people as socially and educationally backward classes of citizens. It recognised the constitutional rights of equality, liberty, and dignity for transgenders and suggested that reservation policy be extended to transgenders in cases of admission in educational institutions and for public appointments. The Expert Committee for Transgenders,2013, under the Ministry of Social Justice and Empowerment also recommended granting reservations for transgenders.


Social stigma in almost every sphere of life such as health, schools/colleges, employment, social schemes, and entitlements diminishes their self-esteem. This policy can plug the problem of accessibility and empower the community by including them in the mainstream development program of the country.


5.2. National Commission for Transgenders


The National Council of Transgender Persons (NCT) is statutorily empowered to advise the government on the formulation of policies, programmes, and legislations, to monitor and evaluate the impact of policies and programmes, to coordinate the activities of all the departments of government and non-governmental organisations and redress grievances of transgender persons. A constitutional mandate will make it mandatory to take the concurrence of Parliament.


5.3. Behavioral Change


Awareness drives and sensitization programs can be quintessential in changing the perception of society towards transgenders. This can be done through the medium of social media, traditional and experiential marketing tools like running advertisements, having respectable spokespersons at various events in schools/colleges/offices, etc. Special employment exchange programmes and incentives to employers to hire and retain transgender employees in the private sector can boost their employment rate.


Focusing on trans employment in the workplace is the need of the hour. Interventions by corporates, society, and government functionaries would holistically change the narrative for the community. A positive movement would create and enable an inclusive world for the third gender in a binary structure.


 

Meet the Thought Leaders



Laboni Singh is a mentor at GGI and is currently working at The Bridgespan Group as an Associate Consultant. She takes keen interest in socioeconomic development issues, public policy, and equity across different vectors of gender, caste, class, and ability, which in turn fuelled her transition from working at a global bank to the social sector. She is an Urban Fellow from the Indian Institute for Human Settlements, Bangalore and has a bachelor's degree in Economics from St. Stephen's College, University of Delhi.


 

Meet The Author (GGI Fellow)


Kajol Sitani a policy enthusiast adept at understanding key events in varied domains of socio-economic importance. Following her graduation from IT, she pursued her Masters in Public Policy.

She is currently working at Samhita Social Ventures as a part of their Growth and Innovation team. Drawing inspiration from Gandhiji’s words, “the world has enough for every man's need, but not every man's greed”, she wants to stay committed to the cause of making the world more resourceful and peaceful for all the generations to come.


If you are interested in applying to GGI's Impact Fellowship, you can access our application link here.

 

References


 





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