Transgender Community as Third Gender

Recognising the Transgender the Third Sex

There is a significant number of transgender population in India, since ancient times. Indian scriptures have mentioned the role and presence of the transgender community in the Indian society. In times of joy and sorrow, transgender community has been an integral part of the Indian social framework. However, there has been a severe discrimination and neglect towards the Transgender community.

For many decades, the transgender community has lived in darkness and slumber, due to the harsh treatment and stereotypical behavior towards them.

Apart from the socio-cultural discrimination with the transgender community, they have long been subjected to a political discrimination, in the form of non-recognition as a third gender category. This amounts to great confusion and embarrassment to the transgender community, as it amounts to a total exclusion from the social-political life.

For many years, there has been a somewhat passive movement to get the transgender community their political rights and recognition. After years of struggle, the community has finally been able to attain formal recognition as a third gender category.

Main Issues related to Transgender community in India

One of the main reasons, as to why the transgender community has not been able to mobilise and articulate its demands, is that the community is not a cohesive, and well-communicated group, in the sense the caste and religious groups are. The members of the transgender community are not only scattered, but also belong to different ethnic groups, which prevent them from creating a coherent group.

Secondly, the transgender community has always been a subject of ridicule. The majority, not only marks this minority group as deviant and abnormal, but also make it a subject of ridicule. The transgender community has been stereotyped in all the spheres of the society. Not only are the homosexuals considered as incapable and weak, but they are also seen as suffering from some genetic disorders. Being identified as mentally ill meant that they could be stripped off their civil and human rights which the heterosexual population enjoyed. This stereotyped behaviour does not limit itself to behavioural aspects alone, but transcends to the work-space and the public sphere as well.

This stereotyped and biased attitude is also found on the part of the state, and state-laws. Most of laws of the state are made with an assumption of a Male-female division in the society. The existing family laws are an excellent example of this kind of discrimination by the state. A conventional definition of family that covers only the traditional family can also be considered Heterosexist.

The state, by not considering the case of the transgender communities, in the family laws, rule-out the possibility, for such people, of entering into families, by their choice. Thus, such people are often forced, by the societal pressure, to suppress their feelings.

The Beginning of the Struggle

It is not that the transgender community is universally despised. The transgender groups form an important part of the social structure of the various cultures. Traditionally, the transgender community has been involved in various socio-cultural functions of the society. In various forms, the role and functions of the transgender community has always been a passively accepted part of the society.

The Transgender community has been referred to by different stereotyped names like- Hijra, kinnar, koti etc. The community was given a legal voting right, as a third sex, in 1994. However, due to the fear of social embarrassment, many of the transgenders did not show up to vote.

Due to their socio-economic seclusion, Indian transgenders also do not have the access to safe medical facilities and other basic requirements of the life.

While the struggle to attain their rights and entitlements have been going since years, the early breakthroughs were in the form of efforts to break the bondage and coming out in the open.

After the Transgenders were granted the voting right in 1994, Shabnam Mausi, became the first transgender Indian, to be elected to a public office. She was an elected member of the Madhya Pradesh State Legislative Assembly from 1998 to 2003. In 2000, Shabnam Mausi became India’s first eunuch MP. Interestingly, in 2003, the hijra community in Madhya Pradesh announced establishment of their own political party called- Jeeti Jitayi Politics (JJP).

Similarly, Kalki Subramaniam, a transgender rights activist, writer and an actor, announced, in March 2014, her decision to contest the election from Villupuram (Tamil Nadu).

At the Kashish Mumbai Queer International Film Festival, 2010, the theme of the festival- ‘Kashish’- conveyed a deep longing for a space, of equality, of acceptance, of a cinema that reflects their lived experiences faithfully. The intention of the festival was twofold- to build solidarity, through film, between the Indian and global LGBT communities, and for people from outside the community to understand their struggles and joys.

The Election Commission had already allowed the enrollment of transgenders under the ‘others’ category in electoral rolls. However, not much success has been achieved due to socio-cultural stereotypes associated with the transgender identity.

NLSA V. Union of India Case

The National Legal Services Authority (NLSA), under the Supreme Court, filed a Public Interest Litigation (PIL), in 2012, on the problems faced by the transgender community. It argued that the transgender persons were deprived of the fundamental rights available to the other two sexes- male and female. (download the judgement)

The PIL asserted that transgender are all persons whose own sense of gender does not match with the gender assigned to them at birth. Thus, unable to adjust in the society, they are tagged with a variety of stereotypical names, like- kinnars, hijras, aravaniss, jogtas etc.

The litigation argued that the gender identity is one of the most fundamental aspects of life, which refer to a person’s intrinsic sense of being male, female or transsexual.

The National Legal Services Authority (NLSA) vs. Union of India Case was able to make an impact at the macro-level. The NLSA judgement is significant, for it affirmed that there is no place in the Constitution for a hierarchy of super-humans, lesser humans and non-humans. The judgement restored the faith of the masses in the court’s ability to recognize gross injustice in the system.

The Bench hearing the case consisted of- Justices K. S. Radhakrishnan and A. K. Sikri. The decision has added new heights of judicial activism and pro-justice stance.

The Court’s decision has been particularly welcomed after the Supreme Court, in Suresh Kumar Kaushal v. Naz Foundation case, ruled in December 2013, and re-criminalized gays and lesbians, and overruled the 2009 Delhi High Court’s decision relating to the Section 377 of IPC.

In a crucial breakthrough, the judiciary embedded the rights of the transgender community primarily within the right to equality in the Indian Constitution. Many activists have viewed this case as a development to the dynamic decision of the Delhi High Court regarding Section 377, which was largely based on the right to privacy.

In a landmark decision, the Supreme Court held that non-recognition of gender identity violates the rights to equality and life, and that transgender persons should not be compelled to declare themselves as either male or female. It was acknowledged by the Court that the lack of recognition of their gender identity curtails their access to education, health care and public places, and thus results in discrimination in the exercise of their right to vote and secure employment and other documentation, which requires an individual to explicitly declare his/her credentials.

In its judgement the court has also relied on a number of international conventions and protocols, besides the fundamental rights given in the Part-III of the Indian Constitution. The judgement specifically drew from the 2006 Yogyakarta principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity. The Yogyakarta Principles specifically recognize the human rights of the sexual minorities.

During the course of the case, the Court admitted a number of foreign judgements relating to the rights of the transgendered persons.

The Verdict of Supreme Court

The Judgement of the Supreme Court accepted the broad definition of transgender as including persons whose gender identity, gender expression or behavior did not conform to their biological sex, and more importantly, those who did not identify with the sex assigned to them at birth. The judiciary also acknowledged the various dimensions of the transgender persons, and admitted that it is not necessarily related to the biologically determined traits of an individual.

Gender identity is about self-identification. Interestingly, Justice Sikri argued that- ‘even gay, lesbian, bisexual are included in the description ‘transgender’ and that it is an umbrella term’.

The NLSA decision thus recognized the social construction of not only gender but also of sex, as something that is performed rather than biologically determined. The observers have hailed this decision as progressive and feminist.

The Court also admitted that sex discrimination in the Indian Constitutional law includes discrimination on the grounds of gender identity, and rejected the view that it was limited to biological sex. It accepted the fact that a binary understanding of gender denied the hijra and transgendered persons equal protection of law, and constituted the basis for widespread discrimination.

The Court has clearly articulated that the transgendered persons should no longer be treated with cruelty, pity or charity. It emphasized the need for a paradigm shift towards a rights-based approach. Justice Sikri asserted that, it is only with this recognition that many rights attached to sexual recognition as ‘third gender’ would be available to this community more meaningfully.

The Bench admitted that social justice does not mean equality before law on paper, but translating the spirit of the Constitution, enshrined in the Preamble, the Fundamental Rights and the Directive Principles of State Policy, into action.

The Bench gave a series of direction for enforcement. It upheld the right to decide their self-identified gender, while directing the Center and state government to grant legal recognition of their gender identity. The Bench directed the Center and State governments to operate separate HIV Sero-surviellance Centers as transgenders faced several sexual health issues.

The Court directed that the Center and state governments should seriously address the problems being faced by the transgender community such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma and stereotypes. The Court also held that any insistence on Sex Reassignment Surgery (SRS) for declaring one’s gender is immoral and illegal.

The Court has also mentioned that the government has formed an expert committee to make an in-depth study of the problems faced by the transgender community and suggest measures that can be taken by the government to ameliorate their problems and to submit its report with recommendations within three months of its constitution.

What Now!!

The Supreme Court, on April 15, 2014, declared transgender people as a socially and economically backward class entitled to reservations in Education and Job, and also directed the Union and state governments to frame welfare schemes for them.

In a major breakthrough, the National Commission for Backward Classes (NCBC) has also recommended their inclusion in the Central list of the OBCs. The matter is now forwarded to the Union government to approve the recommendations to enable the ‘Third Gender’ to avail itself of the benefits.

The LGBT organizations are welcoming the verdict as a step towards the acceptance of the LGBT community into the mainstream society. A South Asian LGBT group said:

We hope that the Court will use precisely the reasoning it endorsed today to reverse its recent ruling and finally strike down the Indian Penal Code’s Section 377, which criminalizes homosexual sex and has been used to persecute transgender Indians and other sexual minorities for over a century.”

Thus, the verdict has become a silver lightening for the advocates of the sexual minorities. Nevertheless, the judgement of the Supreme Court has opened new channels of participative democracy in India, which is bound to enhance the stature of the world’s largest democracy.

Team Aspirant Forum

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