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The Position of India's Transgender - Third Gender

Some people feel that the sex they were assigned at birth doesn’t match their gender identity, or the gender that they feel they are inside. These people are often called transgender. Transgender is a term that includes the many ways that people’s gender identities can be different from the sex they were assigned at birth. There are a lot of different terms transgender people use to describe themselves.

For example, sometimes the word transgender is shortened to just trans, trans, or trans male/trans female. It’s always best to use the language and labels that the person prefers. Transgender people express their gender identities in many different ways. Some people use their dress, behavior, and mannerisms to live as the gender that feels right for them. Some people take hormones and may have surgery to change their body so it matches their gender identity.

Some transgender people reject the traditional understanding of gender as divided between just male and female, so they identify just as transgender, or gender queer, gender fluid, or something else. Transgender people are diverse in their gender identities (the way you feel on the inside), gender expressions (the way you dress and act), and sexual orientations (the people you’re attracted to). When people’s assigned sex and gender identity are the same, they're called cisgender.

Gender Dysphoria:

Gender dysphoria is a term that psychologists and doctors use to describe the distress, unhappiness, and anxiety that transgender people may feel about the mismatch between their bodies and their gender identity. A person may be formally diagnosed with gender dysphoria in order to receive medical treatment to help them transition. Psychologists used to call this gender identity disorder. However, the mismatch between a person’s body and gender identity isn’t in itself a mental illness (but it can cause emotional distress), so the term was changed to reflect that.

Transgender Identity Different From Sexual Orientation:

People often confuse gender identity with sexual orientation. But being transgender isn’t the same thing as being lesbian, gay, or bisexual. Gender identity, whether transgender or cisgender, is about who you are inside as male, female, both, or none of these. Being lesbian, gay, bisexual, or straight describes who you’re attracted to and who you feel yourself drawn to romantically, emotionally, and sexually. A transgender person can be gay, lesbian, straight, or bisexual, just like someone who’s cisgender. A simple way to think about it is: Sexual orientation is about who you want to be with.

Gender identity is about who you are?

Concept of Passing:

Passing describes the experience of a transgender person being seen by others as the gender they want to be seen as. An example would be a trans woman using the women’s bathroom and being seen as female by those around her. Passing is extremely important for many transgender people. Passing can be emotionally important because it affirms your gender identity. Passing can also provide safety from harassment and violence.

Because of transphobia, a transgender person who passes may experience an easier time moving through the world than a person who is known to be transgender or looks more androgynous. But not all transgender people feel the same way about passing. While passing is important to some people, others feel the word suggests that some people’s gender presentation isn’t as real as others. They may feel that passing implies that being seen by others as cisgender is more important than being known as transgender. Some transgender people are comfortable with and proud to be out as trans and don’t feel the need to pass as a cisgender person.

The hijra community is scattered all over India and majority of them are found in the Western and North Indian states though some live in few south Indian states also. Large number of hijra population lives in Western-and North Indian states as compared to southern India due to availability of livelihood sources. Livelihood is one of the main reasons for migration from southern India to other Indian states. Hijras migrate from smaller towns to larger metropolis in search of their identity and to escape from their families. They are forced to leave the house resulting in expulsion from property rights and other family entitlements.

In the absence of family support many hijras join the hijra community for security. Hijras perform at rituals like child birth and marriages. People believe that hijras have the power to bless or curse because of their religious-cultural background. This is the primary reason for people to become hijra-phobic (transphobia) and the ambiguous sex/ gender of a hijra is another confusion that leads to stigma, discrimination and denial of rights at various levels. Sometime hijras/ transgenders are booked under Section 268 IPC (causing public nuisance) or under Section 294 (Obscene Acts and songs).

The complaint is also registered under Section 269 and 270 Act (likely to spread infection), or under the Bombay Police Act, 1951. Kinnars are booked under the public nuisance (Sections 268 and 290 IPC) and Sections 7 and 8 of the Immoral Traffic (Prevention) Act of 1956 and these criminalizes hijras soliciting having sex in public places and not under Section 377. There is no stringent action taken against rape on a transgenders and many of these sexual assaults goes unreported and unaccounted.

The HIV/ AIDS intervention programmes have opened spaces for hijras, aravanis, and transgenders to work in NGOs and CBOs on HIV/ AIDS and transgender rights issues. The UNDP (2010) report highlights that skilled transgenders are denied employment opportunities because of their transgender status. However there are examples of few transgenders who have had created an impact through media activism. Not only socio-economic problems, hijras also face problems in exercising their citizenshiprights.

Though hijras have contested and have had won local, state and national elections and were Mayors and MLAs, in the absence of a national policy, they do not enjoy basic fundamental rights. Moreover those contested in elections in the woman category were turned down on the basis that they were not biological females. Kamla Jaan was elected as the first mayor of Katni, Madhya Pradesh. She resumed her position in the year 2000 but gave up in the year 2003. The reason was that the political opposition filed a petition at a lower court, and then later at the Jabalpur High Court stating that Kamla Jaan had lied about her gender.

The opposition won the case stating that the election had been illegal. Here the binary position of the body was brought into question and it was set as a parameter for eligibility to contest and take part in election. The body became problematic because of its gender non-conformity, and it was excluded from a political process which is one of the political rights of an Indian citizen.

Some basic rights denied to hijras include ration (family) card, Right to vote, right to marriage, child adoption, opening a bank account and many other fundamental (transgender) rights. Some of the legal issues faced by transgenders in India such as legal recognition of their gender identity (difficulty in getting legal recognition as a woman or a transgender woman), inheritance, wills and trusts, immigration status, employment discrimination, and access to public and private health benefits. The change of name and gender on the credentials is also an issue.

The sex assigned at birth mentioned on their birth certificate and other school/ college documents do not match with the gender identity and hence transgenders are denied admission in colleges for higher education. However child adoption procedure for hijras is not clear. The adopted children address them as mother or aunt or by any other. Hijras also face physical and sexual violence from police and local hoodlums/ extortionists due to the nature of their work.

Hijras are harassed by police in many ways and many of these go unreported as they fear that their complaint will be seen as a false story. There are incidents of gang rape and domestic violence, clients force aravani sex workers for unprotected sex and some physically assault them after the sex act. Many of these violent episodes and violation of transgender rights go unreported and right to maintenance also.

Transgender Rights In India:

Preamble to the Constitution mandates Justice - social, economic, and political equality of status. Thus the first and foremost right that they are deserving of is the right to equality under Article 14 and Article 15 speaks about the prohibition of discrimination on the ground of religion, race, caste, sex or place of birth. Article 21 ensures right to privacy and personal dignity to all the citizens.

Article 23 prohibits trafficking in human beings as beggars and other similar forms of forced labour and any contravention of these provisions shall be an offence punishable in accordance with law. The Constitution provides for the fundamental right to equality, and tolerates no discrimination on the grounds of sex, caste, creed or religion. The Constitution also guarantees political rights and other benefits to every citizen. But the third community (transgenders) continues to be ostracized.

The Constitution affirms equality in all spheres but the moot question is whether it is being applied. As per the Constitution most of the protections under the Fundamental Rights Chapter are available to all persons with some rights being restricted to only citizens.

Beyond this categorization the Constitution makes no further distinction among rights holders. But official identity papers provide civil personhood. Among the instruments by which the Indian state defines civil personhood, sexual (gender) identity is a crucial and unavoidable category. Identification on the basis of sex within male and female is a crucial component of civil identity as required by-the Indian state.

The Indian state's policy of recognizing only two sexes and refusing to recognize hijras as women, or as a third sex (if a hijra wants it), has deprived them at a stroke of several rights that Indian citizens take for granted. These rights include the right to vote, the right to own property, the right to marry, the right to claim a formal identity through a passport and a ration card, a driver's license, the right to education, employment, health so on. Such deprivation secludes hijras from the very fabric of Indian civil society.

Problems Faced By Transgender:

The main problems that are being faced by the transgender community are of discrimination, unemployment, lack of educational facilities, homelessness, and lack of medical facilities: like HIV care and hygiene, depression, hormone pill abuse, tobacco and alcohol abuse, penectomy, and problems related to marriage and adoption.

In 1994, transgender persons got the voting right but the task of issuing them voter identity cards got caught up in the male or female question. Several of them were denied cards with sexual category of their choice. The other fields where this community feels neglected are inheritance of property or adoption of a child. They are often pushed to the periphery as a social outcaste and many may end up begging and dancing. This is by all means human trafficking.

Transgenders have very limited employment opportunities. Transgenders have no access to bathrooms/toilets and public spaces. The lack of access to bathrooms and public spaces access is illustrative of discrimination faced by transgenders in availing each facilities and amenities.

They face similar problems in prisons, hospitals and schools. Most families do not accept if their male child starts behaving in ways that are considered feminine or inappropriate to the expected gender role. Consequently, family members may threaten, scold or even assault their son/sibling from behaving or dressing-up like a girl or woman. Some parents may outright disown and evict their own child for crossing the prescribed gender norms of the society and for not fulfilling the roles expected from a male child.

Parents may provide several reasons for doing so:

bringing disgrace and shame to the family; diminished chances of their child getting married to a woman in the future and thus end of their generation (if they have only one male child); and perceived inability on the part of their child to take care of the family. Thus, later transgender women may find it difficult even to claim their share of the property or inherit what would be lawfully theirs. Sometimes, the child or teenager may decide to run away from the family not able to tolerate the discrimination or not wanting to bring shame to one's family. Some of them may eventually find their way to Hijra communities.

This means many Hijras are not educated or uneducated and consequently find it difficult to get jobs. Moreover, it is hard to find people who employ Hijras/TG people. Some members of the society ridicule gender-variant people for being 'different' and they may even be hostile. Even from police, they face physical and verbal abuse, forced sex, extortion of money and materials; and arrests on false allegations.

Absence of protection from police means ruffians find Hijras/TG people as easy targets for extorting money and as sexual objects.
Indian courts have long held that trans people deserve the government’s recognition on their own terms, without mandatory intervention or discrimination.

In 2014, the Indian Supreme Court in NALSA v. India ruled that transgender people should be recognized as a third gender and enjoy all fundamental rights, while also being entitled to specific benefits in education and employment. Justice K.S. Radhakrishnan, writing for the bench, ordered that Transgender persons’ right to decide their self-identified gender should be recognized by state and federal authorities. The court made clear that any insistence for [sex reassignment surgery] for declaring one’s gender is immoral and illegal.

A Delhi High Court ruling in October 2015 laid out the intrinsic link between the right to legal gender recognition and other rights. Affirming a 19-year-old transgender man’s right to recourse against harassment by his parents and the police, Justice Siddharth Mridul wrote:
A transgender [person’s] sense or experience of gender is integral to their core personality and sense of being. Insofar as I understand the law, everyone has a fundamental right to be recognized in their chosen gender.

Section 377: Navtej Singh Johar vs. Union of India: The judgment contradicts the findings of the Supreme Court in Suresh Kumar Koushal case in various ways.

The main points include:
  1. The judgement notes that Section 377, though associated with specific sexual acts, highlighted certain identities, including Hijras.
    It also recognises that sec 377 has been used as an instrument of harassment and physical abuse against Hijras and transgender persons. The judgment only says that this amounts to a misuse of the Section as opposed to what it actually dictates, thus refusing to meaningfully apply a fundamental rights analysis to it. Now we have a clearly contradictory finding.
  2. It argues against Koushal's infamous ‘miniscule minority’ argument noting that Transgenders, even though insignificant in numbers, are still human beings and therefore they have every right to enjoy their human rights.
  3. The Court finds that discrimination on grounds of sexual orientation and gender identity violates Article 14, and that transgenders are extremely vulnerable to harassment, violence and sexual assault in public spaces, at home and in jail, also by the police. If we are to read this with their finding that 377 is used to harass and physically abuse transgender persons, we can clearly make the link that 377 fails the test of equality under the Constitution.

The recommended inputs given by Supreme Court in Navtej Singh Johar vs. Union of India are aimed to strengthen the Indian State’s provisions and commitments and ensure through special measures and safeguards these rights and universal entitlements for the most marginalized and vulnerable people residing within the jurisdiction of the Indian State especially Transgender.

  1. Tapasya, What Does India’s Transgender Community Want? A new law presents challenges for India’s transgender communities. January 09, 2020.
  2. Kyle Knight, India’s Transgender Rights Law Isn’t Worth Celebrating.
  3. S.N.Mishra, Indian Penal Code, (Central LawPublications,.19thEdition,2007).
  4. Prof. Narender Kumar, Constitution of India , (Allahabad Law Agency, Haryana,11th Edn., 2011).

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