‘Rainbow Statelessness’
recent updating of the National Register of Citizens. 73 This is largely due to an
inability to present the necessary legacy documents to prove ancestry, since many
transgender persons have lost regular contact with their families because of social
stigma around their identity and lifestyles. 74 Similar challenges of acquiring
documentation from estranged family members have been highlighted in the case
of Gulalai, a transgender refugee from Afghanistan living in Pakistan. 75 These
narratives demonstrate the further vulnerability of citizenship for LGBTIQ+
persons living in contexts of stigma and family rejection.
B
Post-Transition and Intersex Statelessness
In addition to the cases of arbitrary deprivation of citizenship outlined above, gaps
and grey areas in legislation can present particular risks of statelessness for
individuals undergoing transitions in their sex and gender identity/expression. In
many states, the legal gender recognition of the post transition status is restricted
to cases where surgery has taken place. It is often left to medical expert opinion to
recognise whether or not transition has been completed, requiring the submission
of medical and/or psychological/psychiatric evaluations to support the decisions. 76
This may be contrary to the self-identification of trans individuals themselves. In
other countries, there is no legal mechanism to recognise such a transition at all.
Non-recognition of post-transition status may result in statelessness when the
present (chosen) name, gender and physical appearance do not correspond with
those included on the individual’s civil documents. One transsexual activist and
asylum seeker from the Middle East now living in a western country where she
has undergone surgery and received hormone therapy noted that the documents
proving her citizenship from her home country no longer relate to her current
appearance and identity:
I cannot use my passport as valid identification for any purpose because nobody
would believe it is me. I think I am in theory still a citizen but my country doesn’t
know about, and would never accept, my current status. The holder of that
citizenship no longer exists, and I have no passport nor citizenship document in my
current name, and am awaiting my asylum claim to be processed. I guess this makes
me stateless in practice. 77
73
74
75
76
77
Ditilekha Sharma, ‘Determination of Citizenship through Lineage in the Assam NRC Is
Inherently Exclusionary’, Engage: Economic & Political Weekly (online, April 2019)
<https://www.epw.in/engage/article/determination-citizenship-through-lineage-assam-nrcexclusionary>.
Ratnadip Choudhury, ‘Transgenders Find It Hard to Make It to Assam Citizens’ List’, NDTV
(online, 14 August 2018) <https://www.ndtv.com/india-news/assam-nrc-transgenders-findit-hard-to-make-it-to-assam-citizens-list-1900280>; Daman Kaur Sethi, ‘The NRC: Why,
How and What Next?’ (Conference Paper, The State of the Global Protection System for
Refugees and Migrants, Calcutta Research Group, 25–30 November 2018).
Umer Ali, ‘“I Don’t Want to Go Back to Afghanistan to Get Butchered”’, News Deeply:
Refugees
Deeply
(online,
18
January
2017)
<https://www.newsdeeply.com/refugees/articles/2017/01/18/i-dont-want-to-go-back-toafghanistan-to-get-butchered>.
Zhan Chiam, Sandra Duffy and Matilda González Gil, ‘Trans Legal Mapping Report:
Recognition before the Law’ (Report, 2nd Ed, International Lesbian, Gay, Bisexual, Trans and
Intersex Association November 2017).
Interview with Anonymous (Thomas McGee, 8 January 2020), via electronic communication.
Details have been anonymised according to interviewee wishes.
78