(Trans)gender and the Question of Constitutional Membership

Gender appears to be a hackneyed topic in our country. If not, it is a ghost that necessitates fighting when it comes in conflict with our so-called social and religious values. Recent anti-trans protests to cancel the transgender quota from the admission programme of the University of Dhaka manifest the same impulse to safeguard religious and social mores which, the protesters believe, would be infringed if the trans-quota remains in place. The exclusion of trans woman Hochemin Islam from the North South University's event "Women's Career Carnival" is yet another recent example in this regard. The transgender community certainly threatens our conventional gender norms and both the exclusion of Hochemin and the protests suggest a resistance towards that while attempting to frame the "gender conversation" only between cis men and cis women. However, the idea of gender indeed goes beyond such rigid binary.  Asking the gender question involves the ideas of self-governance, choice, and autonomy, thus allowing us to adopt gender norms that we "feel" regardless of our biological sexes. However, in our patriarchal society that commands to maintain and in fact thrives on a rigid gender binary, any person claiming to be any gender other than the one corresponding to biological sex, becomes a social pariah.

Our Constitution however has, since beginning, been an ardent advocate of equality and non-discrimination and accords rights and benefits to its members (e.g., free expression and affirmative measures for marginalised communities). To be a member of the constitution is not however about simply "being" but  also about "belonging" (Marcus Llanque). The fact that Hochemin was stripped of her right to freedom of expression simply because of her transgender identity or the demand for withdrawing transgender quota thus gives rise to a broader question: can a transgender person ever get to be a member of the Constitution and thereby enjoy its (core) rights and benefits against the "gendered politics of belonging" (Suruchi Thapar-Björkert)?

Although the Constitution does not embody the term "gender" explicitly, Article 27 of our Constitution speaks of equal protection of laws for every citizen. This is clearly inclusive of people of transgender identities. Our constitutional territory however is marked by a crude gender binary: men and women (as Article 28(2) mandates). As a result, a legal impasse might arise when an attempt is made to include "trans women" within that territory. This rigid gender essentialist identity, on its face, might suggest that transgender persons lack access to our Constitutional membership as rights holders since they do not fit within the constitutionally sanctioned gender binary. This, in turn, perhaps, one could argue, furthers the justification of the exclusion that Hochemin faced for being a trans woman. However, the term "woman" is nowhere defined: neither in the Constitution nor in international laws. Dealing with the same issue, but with regards to "woman" in the Convention on the Elimination of all forms of Discrimination against Women, Elise Meyer suggests that the term "woman" should be expansive to span across sex, gender, sexual orientation or other (intersecting) identities in light of the Convention's broader object and purpose to eliminate discrimination and gender equality. This same identity-inclusive approach could be taken to interpret "woman" in Article 28(2) because our Constitution too aspires to achieve, among others, equality and non-discrimination.

To belong to the Constitution, however, also means that one gets to enjoy all the benefits that the Constitution provides— such as affirmative measures. Affirmative measures which often take the form of quotas is a telling constitutional feature to help the disadvantaged communities, advance. Article 28(4) which requires the State to adopt such special measures is wider in its scope. Although women and children are distinctively recognised as the beneficiaries, the provision asks the State to take actions for the advancement of "any backward section of citizens" thus possibly encompassing all marginalised groups in the society. In so doing, it arguably considers all women a ("timeless") vulnerable category irrespective of the changing socio-economic conditions and privileges within the group. Regardless of this problematic feature, in any case, transgender persons are entitled to benefit from the provision. Trans women, for instance, come within the purview of the provision not only because trans women are women and therefore equally eligible for special measures but also for the fact that trans women are more susceptible to discrimination and disadvantages because of their intersectional vulnerability as trans women. For this very reason, trans women could also be considered a "backward class" requiring special measures for their advancement independent of/along with their deserving position as women. As a result, the objection that transgender quota runs counter to the ideals of Article 28(4), i.e., the advancement of (cis) women, does not sustain. Pertinent to note, such an objection in reality arises more from the concern of protecting entrenched gender binary from non-normative gender ideas regarded as "profane" rather than the concern for the cis women.

Freedom of expression is another core right enshrined in our Constitution. In the question of gender identity, freedom of expression comes into play in a twofold manner. First, gender identity itself could be a form of expression starting from dress, and manner of speaking to gender transition more broadly. Second, the discussion or conversation on gender identity itself, e.g., transgenderism. Now, freedom of expression is a guaranteed right in our Constitution. However, it is a right with some "reasonable restrictions" meaning it could be limited on grounds like public morality or order. In turn, such limitations accord States some flexibility to restrict the right since there is no clear-cut answer to define these grounds which are often context specific. That does not mean that such restrictions could be arbitrary, rather should be imposed by law. The law restricting any form of expression must pass constitutional muster by demonstrating that the means taken to curb the right are proportionate to the goals sought to be achieved. In so doing, we should be reminded of the value of freedom of expression including dissent, disagreement as well as opinion often challenging our usual conceptions. Indeed, not allowing one to speak on transgenderism (this is hypothetical; Hochemin in our case, was not about to speak on transgenderism) or simply because she is a trans woman runs afoul of the goals of reasonable restrictions because it undermines her equal standing as a moral person by directly restricting what is so fundamental to herself.

What is important to bear in mind is that our Constitution should not be a home for homogenous identity or gender orthodoxy. As much as it is for cis men and cis women, it is also for trans men and trans women. Our Constitution should take up difference in the same way it embraces sameness. A constitution like ours that has been founded upon the values of our Liberation War, in no way should give a nod to the idea that its benefits are only available to those who could assimilate and thus maintain a heteronormative culture with a gender diktat. Turning a blind eye to diversity is anathema to both constitutional as well as democratic values.

The writer is reading for the LLM in Human Rights at NYU School of Law as Arthur T. Vanderbilt Scholar.