A frustration that persists when discussing queer rights in India is that “nothing gets implemented,” whether in conversations with transgender people, civil society organisations, or even the Supreme Court in its recent judgment in Jane Kaushik v Union of India. The court highlighted the failure of the state to implement provisions of the law and the implications that non-obligation has on a transgender person’s basic rights. This week, the Lok Sabha has joined in, arguing that the broad legal definition of “transgender persons” in the Transgender Persons (Protection of Rights) Act, 2019 – which rests on the principle of self-determination – is to blame for making laws unenforceable and proposed to amend it to make benefits reach “those who are in actual need of such protection” by doing away with self-determination.It is worth looking into where and how this un-enforceability happens. Is it truly the definition of transgender persons that makes the law unenforceable? We proceed with Jane Kaushik’s context of educational institutions. In this article we identify and examine the gaps between statutory obligations under the law and ground reality in National Law Universities across India, which are meant to be the zeniths of legal education in India. National Law Universities fall within the ambit of the State by virtue of being established through various state legislations and thus are required to fulfil responsibilities under the 2019 Act, Transgender Persons (Protection of Rights) Rules, 2020, several landmark court cases and various notifications and circulars by State departments.Our research has identified key areas requiring implementation based on RTI queries sent to 27 NLUs, out of which 16 universities have responded, and telephonic interviews conducted with queer students studying at various NLUs across the country. This exercise allowed us to deeply understand their lived experience and assess how and to what extent NLUs comply with the law.Accessibility in washrooms and living spacesWashrooms and living accommodations are basic necessities from which the exclusion of any person who does not fit in the gender binary (such as those who are non-binary or transitioning) due to their gender-specific nature as assigned by the authorities. The government is required to provide the prescribed facilities under the 2019 Act, which includes separate washrooms and accommodation. Furthermore, the right to sanitation – which includes accessible and separate toilets for men, women, and transgender people has been upheld as a fundamental right under Article 21(right to life) by the Supreme Court in the Rajib Kalitha v. Union of India. RTI responses from 16 national law universities or NLUs shows only four NLUs stating that they have washrooms accessible to transgender persons. National Law School of India University, Bengaluru, is stated to have seven gender-neutral washrooms while Gujarat National Law University, Gandhinagar, and Rajiv Gandhi National University of Law, Patiala, have a gender-neutral washroom on each floor. GNLU Gandhinagar’s response is ambiguous on the exact number of gender-neutral washrooms. Inaccessible and arbitrary constructions of washrooms takes place in the absence of any specifications in the law of what a gender-neutral washroom ought to look like, including the Harmonized Guidelines for Accessibility, 2021. For instance, in GNLU, washrooms accessible for disabled persons have been converted to being accessible for transgender persons. However, in the absence of guidelines, this has resulted in situations such as washrooms lacking water supply, remaining under construction, being situated far away from classrooms or only for the use of admin. In NALSAR, we found that mere renaming of men’s washrooms without any infrastructural modifications, has resulted in continued usage by men, causing transgender persons to not use it due to lack of safety and accessibility. Only 2 out of 16 of the NLUs have gender neutral accommodations in some capacity, as per the RTI replies, with GNLU having 2 and NLU Tripura having 1. NALSAR Hyderabad had also famously introduced a gender neutral floor for accommodation accessible to queer and trans people located in the girls’ hostel in 2022. The experiences collected from our interviews show that such spaces lack signage required under the Harmonised Guidelines 2021, which creates confusion and backlash from other students living in that space, parents, and has led to students feeling discriminated against. Such spaces are also often ad hoc: their access based on the discretion of the administration, as opposed to either fixed or rule-based allotment of gender-neutral spaces. Governments have an obligation to create welfare schemes for accommodations for transgender students in government-supported universities as per Rule 10 of the 2020 Rules. Absence of guidelines, schemes or regulations on the same becomes an obstacle to effective implementation, not the definition of transgender persons. Sensitisation, curriculum and grievance redressalEducational institutions are required to provide “inclusive education” towards transgender persons in all areas, including sports, recreation and leisure activities. Section 13 of the 2019 Act defines inclusive education as “a system of education wherein transgender students learn together with other students without fear of discrimination, neglect, harassment or intimidation and the system of teaching and learning is suitably adapted to meet the learning needs of such students.” The 2019 Act requires measures to prohibit discrimination in educational institutions under Section 3 of the Act and Rule 10(4) of the Transgender Rule. How this translates into concrete legal obligations is unclear, which enables the lack of inclusivity outlined below. Sensitisation programmes and curriculum Rule 10(7)(a) requires the government to conduct sensitisations of faculty and to review and change the educational curricula to foster respect for equality and gender diversity. Nine NLUs provided no information on any such faculty sensitisation being undertaken. The remaining seven universities’ responses are colourfully diverse; a varied range of answers have been provided, consisting of any university event, however remotely connected to transgender persons, none of which clearly point to any sensitisation. This includes scholarly conferences/panel discussions, student-led activities like Pride marches, work by legal aid clinics, and sensitisation of students. Events discussing queerness were said to be conducted by students, for students, but that, too, infrequently. Student responses indicated clubbing together of gender sensitisation with sexual harassment sensitisation with sparing to no mentions of queerness. Queerness has been discussed in the curriculum of some courses, such as Family Law, Sociology and Constitutional Law. But these are often limited to ancillary mentions of landmark cases like NALSA v Union of India or Navtej Johar v Union of India, provided to specific streams only, or modules referring to queerness got skipped entirely from the final syllabus. Only 2 universities were found to have courses which specifically discuss queerness, both being electives. Queerphobia in the classroom was stated to be not institutionally addressed in a few universities. This points towards the need for guidelines which specify how such ‘sensitization’ is to take place and lay out an adequate framework for inclusion in the curriculum. Again, this has nothing to do with how transgender persons are to be identified. Equal opportunity policy The 2019 Act further requires an “Equal Opportunity Policy” to be published at every establishment under Rule 12 to ensure non-discrimination of transgender employees, which should include details of “infrastructure adjustments, recruitment, employment benefits, promotion and other related issues.” Obligations under this include unisex toilets, security measures, confidentiality of gender identities of employees and amenities such as hygiene products.Out of the 16 universities that responded, 14 either have no such policy or do not have any information about it. RGNUL Patiala and NUJS Kolkata are the only two universities with a policy available, with the former’s policy not being made available publicly on the university’s website or sent as a part of the RTI response.The Equal Opportunity Policy, however, legally applies only to employees, which allows for possibilities where a unisex washroom exists only in the administrative block and is not easily accessible by students, but the institution is still technically compliant with the law. There is no similar mechanism for students to avail of equal opportunity in line with the ‘inclusive education’ mandate with their peers. The present mechanism for them is restricted to grievance redressal measures. A flaw exists here in the legal obligation itself. Grievance redressal mechanismsA complaint officer is required to be designated for grievance redressal under Section 11 of the 2019 Act and Rule 13 of the 2020 Rules for inquiring into complaints within fifteen days. Rule 10(8) of the 2020 Rules further requires the constitution of a committee which can be accessed by transgender persons in case of harassment or discrimination, with powers to ensure that transgender students are not affected by the presence of the person bullying them, including teachers. Only two out of 16 responding NLUs were found to have a Compliance Officer. Most universities listed any remotely related mechanism concerning equal opportunity, such as cells under other Acts. NLS Bangalore has designated an Equal Opportunity Cell functionally similar to a grievance redressal mechanism that addresses discrimination based on both gender and sexual orientation, with clear timelines and procedures. NUJS Kolkata is the only NLU with measures to create a committee to address harassment of transgender students, in Clause 14 of its policy, but it does not grant powers to the committee to prevent the bullying student/faculty from affecting the complainant. Change in personal detailsThere is no specified process in NLUs on how changes in names, honorifics or pronouns in institutional records can be carried out. Responding NLUs either have no mechanism for this, or have discretionary processes for this, such as ad-hoc processes to make a case before committees or a State document stating the changed legal identity. Beoncy Laishram v State of Manipur held that an establishment has an obligation to make corrections to the name and gender in the identity certificate, and a transgender person is entitled to change their name in all official documents. However, this is still subject to the availability of the transgender certificate. Here, a clear statutory design for implementation of the obligation is missing, which would exist irrespective of how transgender persons are defined. Inclusivity in PoSH PoliciesWe reviewed the PoSH policy of all NLUs that were publicly available, which is legally required the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013. Several NLUs have created Internal Complaints Committees, but do not have a policy publicly available. A legal obligation here towards queer people is itself absent. The 2013 Act, defines the complainant as an “aggrieved woman,” ignoring the harassment that can be faced by gay and trans men, non-binary people, heterosexual men and often excludes trans-women as well from filing complaints. Many NLUs have relied directly on the 2015 University Grants Commission (UGC) Regulations on PoSH, which cannot be said to include queer people as aggrieved persons.However, out of the 11 PoSH policies that were available on the internet, 9 had policies that include sexual harassment of queer people as a valid cause of action by defining “complainant” as an “aggrieved person” and removing any gender-identity markers from this. NUJS Kolkata goes so far as to specify that an “eminent woman” may be a trans-woman. This exemplifies institutions voluntarily creating inclusivity despite lack of legal obligations.The circular no-transgender rhetoricThe RTI responses reveal a common line of reasoning: that, due to the lack of any transgender persons in the university, no measures have been taken for their welfare. Universities have stated that they would be carried out upon the admission/recruitment of any transgender persons. The universities have thus shifted the onus on the person to face institutional obstacles and demand the enforcement of legal obligations from the institution. This rhetoric creates a classic exclusion catch-22 for queer people: no welfare measures will be created till transgender students attend the university, but it is unlikely that a transgender student will attend the university if no welfare measures guaranteeing safety and dignity are present. Assuming an objective criterion for the administration to identify transgender persons contradicts the very subjective nature that the right to self-identification guarantees. To say that no transgender students are enrolled, and thus the lack of facilities, requires an ability to identify transgender students on some objective criteria. This objective criterion is exactly what the proposed bill supplies. The singular requirement for a person to be transgender under the existing law is a mismatch between the gender assigned at birth and the gender one identifies with, under Section 2(k) of the 2019 Act. A transgender person, upon realization of this mismatch, does not automatically undergo a cinderellaesque transformation where their appearance makes their queerness apparent to observing people. Many choose to not transition immediately to navigate the extreme social backlash that transpires; many choose to remain hidden their entire life. The lack of institutional facilities only exacerbates the hindrance to socially or medically transitioning.Certificates, further, are not a requirement under the 2019 Act for a person to qualify as a transgender person. Explicitly, it rules out any medical procedure to qualify as transgender under the law, in consonance with the right to self-identification of gender in NALSA v. Union of India. Certificates are only required for availing specific entitlements. Nowhere in the law have these certificates been linked with the legal obligation of institutions. This is notwithstanding the many critiques of the Certificates and its procurement process. Universities, thus fail to take these understandings into account. The proposed law supports this strategy of identification. It contradicts NALSA v. Union of India as well as most of its own provisions to shift from gender self-identification to an objective biological identification, framing trans-ness as almost a bodily dysfunction or external coercion. Is this shift necessary? Based on how most of the non-implementation seen above is happening either through lack of concrete details in the law, or through a lack of measures to address deviation by a stakeholder of the law, it is difficult to say yes to that question. Other laws have also been harmoniously read with the 2019 Act by Courts, such as “bride” in the Hindu Marriage Act including trans-women and birth certificates saying “parent” instead of mother/father. This makes one question whether the enforceability lies inherently in the definition. Given that this wide degree of non-implementation exists, it is difficult to support the logic that the bill uses to justify itself, that is, to minimise misuse. If no use is happening, however can misuse happen? And so…The 2019 Act makes the rights of queer people in NLUs contingent on the inaction of stakeholders like university administration, legislators and the State department. Two patterns emerge: first, deviation by institutions from the letter of the law, and second, unclarity in the law for willing stakeholders to give effect to measures for queer people on their campuses. Neither of these provide a basis for narrowing down the definition of transgender persons. Rather than creating concreteness and detailing existing laws to enable implementation of obligations, the bill seeks to reduce its scope of beneficiaries. The authors hope is that this article provides key points that students and administration in NLUs and other universities can work together and lobby for the creation of mechanisms that guarantee legal rights and that legislators can collaborate with queer people to improve existing laws rather than to take away from them. Prashansa Naik and Farhan Zia are Legal Researchers at the Centre for Social Justice.