ABSTRACT
After years of debates, the Indian society has recognized the difference between “Sex” and “Gender” but the identity of “The third sex” is still in question. Many NGOs at National and International level during the 20th century raised the question on the condition of the transgender person in the society and worked for the rights of the transgender person and the strong voice raised by the National Legal Service Authority reached to the Supreme court in the year 2014 and made a landmark change in the life of the transgender persons. While fighting for the rights of women, we forget that the rights should be asked for humans.
Some of the ancient literature and incidents which helps us to trace the presence of the transgender in the ancient Indian culture.The third-sex were given respect in the royal courts of Mughals and Ottoman empire but in the 19th century (Medieval India) and were awarded the high positions of responsibility as were considered to be clever, trustworthy and fiercely loyal but the situation changed drastically when the British Colonial administration vigorously sought to criminalize the Hijra community and refused to grant their human and natural rights, the hijras were believed to belong from the separate caste/tribe. The Criminal Tribes Act, 1871 included Hizra as the kidnapper and castrating children and they were punished for being dressed as women and dance with the two-year imprisonment or a fine or both.
In August 2013 The Ministry of Social Justice and Empowerment formed the committee to deal with the issues related to the transgender community. The committee of experts held various meetings including opinions from various committees and states and studying the practices in other common law countries. After all such efforts of Judiciary and Legislature the “Third Gender” achieved their identity by The Transgender Persons (Protection of Rights) Bill, 2019 which provides the extended definition of the third sex by including every individual whose gender is not similar to the gender assigned at the birth. The bill recognizes the identity transgender person and provides a provision of certification of identity by the District Magistrate and extends to the liberty to change the gender and other such rights which the researcher shall discuss in my paper.
TRANSGENDER PERSON IN INDIA
- INTRODUCTION
After years of debates, the Indian society hasrecognized the difference between “Sex” and “Gender” but in the Contemporary times the new question arises is of “The third sex” which is known by multiple names in various regions like Transgender, Hijra, Eunuchs, intersex, aravani, chakka, kinnar, Khawaja sira, etc. In India, Many NGOs during the 20th century raised the question on the condition of the transgender person in the society and worked for the rights of the transgender person and the strong voice raised by the National Legal Service Authority reached to the Supreme court in the year 2014 and made a landmark change in the life of the transgender persons. While fighting for the rights of women, we forget that the rights should be asked for humans. The feminist fighting against the patriarchal society made it man versus woman but they failed to recognize that the whole idea of struggle is to attain human rights for all the humans.
- HISTORICAL ASPECT
Some of the ancient literature and incidents which helps us to trace the presence of the transgender in the ancient Indian culture are The Kamasutra,sangham literature, Vedas, Mahabharata, Ramayana, Puranas, regional folklore. Temple of Bahuchara Mata, situated in Becharaji town in Mehsana district of Gujarat is known as the pilgrimage of hijras. Also, goddess Ardhanariknown to be a god that is half Shiva and half Parvati, Ardhnari has a special significance as a patron of hijras, who identify with the gender ambiguity. Vedas (1500 BC – 500 BC) describe individuals asbelonging to one of three separate categories, according toone’s nature or Prakriti.
The third-sex were given respect in the royal courts of Mughals and Ottoman empire but in the 19th century (Medieval India)and were awarded the high positions of responsibility as were considered to be clever, trustworthy and fiercely loyal but the situation changed drastically when the British Colonial administration vigorously sought to criminalize the Hijra community and refused to grant their human and natural rights, the hijras were believed to belong from the separate caste/tribe. The Criminal Tribes Act, 1871 included Hizra as the kidnappers and castrating children and they were punished for being dressed as women and dance with the two-year imprisonment or a fine or both.
- THE SOCIAL ASPECT
The condition of the transgender person was distressing as they were never to be treated as normal human beings, in some places they were treated as untouchables and they were considered to be some other community not as the part of the society. Their own family disowned them and they are brought up in a community of such other transgender only and sometimes by few NGOs working for them. It was held in a survey that transgenders worked as sex workers which lead them in distasteful health issues like AIDS etc. and they were not able to avail proper health facilities. A book by Rajesh Talwar named The Third sex and human rightsare one of the amazing work done on this issue.The author explained the virtue of the third sex from the scientific point of view and challenged society’s virtue for the third sex.
- THE LEGAL VIEW
The Constitution of India, 1950 did not recognize the third gender as separate sex or gender. The constitution does not distinguish between any sex or gender.The other laws in India like The India Penal Code defines Gender as “The pronoun “he” and its derivatives are used of any person, whether male or female.”[1]. The definition of a person under the General Clauses Act, 1897 is couched in even wider terms. Section 3(42) of the Act of 1897 defines a person to ‘include any company or association or body of individuals, whether incorporated or not’. Though The act stipulates that words importing the masculine gender shall be taken to include females, this stipulation is itself conditioned by the statutory direction that this is so unless there is anything repugnant in the subject or context.[2]On the other hand, Transgender cannot escape punishment when they are accused of committing crimes. The word ‘Person’ in the Indian Penal Code and General Clauses Act means all human beings as it says “any person” but further it restricts the term by adding “whether male or female”. The recognition of third-sex is not present in the Penal code.The Indian Law did not explicitly talk about the Transgender persons before The Transgender Persons (Protection of Rights) Bill, 2019[3].
- LEGISLATURE’S ACTION
The Transgender Persons (Protection of Rights) Bill, 2019 which provides the extended definition of the third sex by including every individual whose gender is not similar to the gender assigned at the birth. It includes all the trans-men and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar and hijra. Intersex variations are defined to mean a person who at birth shows the variation in his or her primary sexual characteristics, external genitalia, chromosomes, or hormones from the normative standard of a male or female body.[4] Further, the bill strictly prohibits discrimination against the transgender person on any ground mentioned[5]. It provides the right of residence, employment, education, health care and other welfare provisions by the government[6] by establishing the National Council for Transgender persons (NCT).[7]
The bill recognizes the identity transgender person and provides a provision of certification of identity by the District Magistrate[8] and extends to the liberty to change the gender[9]by the way of surgery with the permission in the form of a certificate from the Medical Superintendent or Chief Medical Officer of that Medical institution. In India, the sex-change surgery is possible with the help of various medical practitioners and laws, the major reasons for this surgery are the gender identity disorder in an individual. It includes both, male to female and female to male after attaining the requirements of the medical science, it is claimed that he practically the risk is zero if the patient follows the procedure right and truthfully deal with the doctor. This process can take up to 1 year depending upon the biological situation of the person. Few states of India provide some financial aid to undergo the procedure of sex change.
In the recent past, the Government has realized the need of improving the condition of the transgender person in India. This happened after the various NGOs started working on it for the betterment of the community. The NGOs like Sahodari Foundation has fought for the rights and legal recognition of the transgender person, it provides counseling and other necessary services to the deserving transgender community. The foundation aims to promote social, political and economic equity and campaign for civil and legal rights of transgender people. The foundation is aiming to achieve an equal and just society.
- INTERNATIONAL SCENARIO
At the International level, the World Professional Association for Transgender Health (WPATH)is an organization dealing with gender dysphoria. The organization includes the professional from different fields and non-professionals can also be part of it but they do not get the right to vote. WPATH publishes the Standard of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People from the year 1979. It aims to promote evidence-based care, education, research, advocacy, public policy, and respect in transgender health.
International Foundation for Gender Education is another Non-Profit organization working for the rights of transgender by the way of advocacy. This is an American based NGO from the year 1987 working against the exploitation made to the transgender person in the American states. It publishes the magazine named “Transgender Tapestry” which includes all the necessary aspects of crossdressing, transsexualism, intersexuality, FTM, MTF, butch, femme, drag kings and drag queens, androgyny, female and male impersonation and many more. The idea is to aware people of the natural aspects of the third sex and makes them realize they are as equally humans as the male or female.
Another international level organization for transgender and intersex rights, education and peer support is the GATE which is also a think tank on the gender identity for the third sex. The GATE was founded in the year 2009 with the agenda of earning the same amount of respect for the transgender person and empower them by providing basic education and health facilities to be self-determent and independent enough to earn for the livelihood and live with dignity. The organizations fight for Human Rights. It focuses on the medical condition of the transgender and working for their welfare and betterment.
- THE JUDICIAL VIEW
In India, the two Public interest litigation was filled in the interest of the transgender people. One in the Hon’ble Supreme Court of India and the other in the High Court of Mumbai. The judicial interference became necessary to secure the rights of the transgender person which extended to legislature and legislature was made to protect their Human Rights.
In August 2013 The Ministry of Social Justice and Empowerment held a meeting regarding the issues related to the transgender community including the representatives from state governments, transgender community, university professors, etc. based on the discussions of the said meeting government decided to constitute a committee of experts to deal with the situation, problem and their solution for the transgender community.
The committee of experts under The Ministry of Social Justice and Empowerment held various meetings including opinions from various committees and states and studying the practices in other common law countries. submitted the report including the definition in its wide sense and ensured the constitutional protection under Article 14, 15 and 16[10] provides equality before the law and prohibits discrimination based on sex, etc. Article 19 gives the freedom of speech and expression and Article 21 gives the right to live with dignity along with these Fundamental rights enshrined in Chapter III of the Constitution there are other provisions like Article 5 grants citizenship to a person irrespective of sex or anything else. The Citizenship Act, 1955[11] which provides for the acquisition and determination of Indian Citizenship also does not, expressly or impliedly require determinate sex or gender identity as a pre-condition for acquiring citizenship. For a person to be a voter (elector), he/she has to be a citizen of India. The Election Commission of India has taken special measures to enroll the transgender persons as electors.
The committee also referred to some international practices across the globe and the biological and scientific aspects of the transgender suggested adding them as the third sex, including all persons who are neither male nor female. Committee did not make any distinction among them. The committee also suggested to establish National Council for Transgender Persons (NCT) and also recommended to grant certification for the transgender by the competent authority so that they can avail the benefits of the government scheme. The committee compared the transgender with the SC/ST and suggested to make reservations based on social backwardness since ages. The committee suggested various ways to make sure the facilities like education, health, employment, improve the standard of living, etc.
The Supreme Court of India in the case of National Legal Service Authority V. Union of India[12] held that the Hijras or Eunuchs are to be recognized as the third gender and every individual has the right to self-identify themselves as withering male or female or as the third gender. The Supreme Court also directed the Centre and State Government to treat them as socially and educationally backward class and extend all kind of reservations to them for their betterment. Also, directed to operate separate H.I.V Sero-surveillance centers to resolve their health issue. The central government is directed to take necessary steps for their betterment for health, education, social status, welfare schemes, separate pubic toilets, and other facilities, etc. the court held that the Gender identification becomes very essential component which is required for enjoying civil rights by this community. It is only with this recognition that many rights attached to the sexual recognition as ‘third gender’ would be available to this community more meaningfully viz., 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.
The issue of Section 377 was first raised by the NGO Naaz Foundation, which had in 2001 approached the Delhi High Court which had decriminalized sex between consenting adults of the same gender by holding the penal provision as “illegal”. This 2009 judgment of the high court was overturned in 2013 by the apex court which had also dismissed the review plea against which the curative petitions were filed which are pending. Section 377 also included consensual sexual acts of adults such as oral and anal sex in private which were treated as unnatural and punishable. Coming from different parts of the country with diverse religion, age, sex and other backgrounds, the petitioners said that section 377 legitimizes the stigma associated with sexual orientation and its expression something essential. The Supreme Court has scrapped Section 377 of the IPC, decriminalizing the 158-year-old colonial law which criminalizes consensual gay sex.
In the year 2018, the Court ruled unanimously in Navtej Singh Johar v. Union of India[13] that Section 377 was unconstitutional “in so far as it criminalizes consensual sexual conduct between adults of the same sex”. The Court in its judgment analyses the Constitutional morality about human dignity and based on the doctrine of progressive realization of rights for transgender persons. The court also held a comparative analysis of 375 and 377 held that “A cursory reading of Section 375 Indian Penal Code divulges that it is a gender-specific provision for the protection of women as only a man can commit the offense of rape. The Section has been divided into two parts. The former part, comprising of Clauses (a) to (d), simply describes what acts committed by a man with a woman would amount to rape provided that the said acts are committed in the circumstances falling under any of the seven descriptions as stipulated by the latter part of the Section. Section 377 Indian Penal Code, unlike Section 375, is a gender-neutral provision as it uses the word ‘whoever’. “Another expression which has been employed in Section 377 is ‘against the order of nature’. The phrase ‘against the order of nature’ has neither been defined in Section 377 Indian Penal Code nor any other provision of the Indian Penal Code. The foundation on which Section 377 Indian Penal Code makes carnal intercourse an offense is a precept that such carnal intercourse is against the order of nature. This brings us to the important question as to what is ‘against the order of nature’?” while deciding this question the court observed that “At the very least, it can be said that criminalization of consensual carnal intercourse, be it amongst homosexuals, heterosexuals, bi-sexual or transgender, hardly serves any legitimate public purpose or interest. Per contra, we are inclined to believe that if Section 377 remains in its present form in the statute book, it will allow the harassment and exploitation of the LGBT community to prevail. We must make it clear that freedom of choice cannot be scuttled or abridged on the threat of criminal prosecution and made paraplegic on the mercurial stance of majoritarian perception.”
The Gender identity refers to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body which may involve a freely chosen, modification of bodily appearance or functions by medical, surgical or other means and other expressions of gender, including dress, speech, and mannerisms. Gender identity, therefore, refers to an individual’s self-identification as a man, woman, transgender or other identified category.
- CONCLUSION
It is observed in the Indian society that the third-gender are not accepted by their family as part of it. Over time these abandoned persons make their own social family and decided one of them to the leader and others live as brother and sister among themselves. They mutually live together and celebrates their festival though they also face several problems due to their sex-determination. Sometimes the whole family works in the business of prostitution to earn bread and butter.
The solution lies in the awareness through various medium like Television, Radio, Social Media that impacts the mind and thoughts of the society. The recent example being the big star movie called “ShubhMangalJyadaSavdhaan” of Bollywood which expressed the love of a gay couple who fought for their love even after the laws made for the acceptance of the gay or third gender. As quoted by the S.J.D. Peterson “Marriage is not about finding a person you can live with, it’s about finding the person you can’t live without.” The movie tried to change to impact the ideology of the person and it was achieved in away. Where few people criticized but most of them appreciated and accepted the presence of the third gender. This movie is one of the steps taken to normalize the existence of the third gender and breaking the stereotype where people felt awkward in the presence of a person belonging from the third gender.
Summing up, the presence of the third gender is as natural as the presence of male and female but it is not normal because of the various stereotypes in the culture and stories. Various organizations, NGOs, etc. are working for their rights and they succeeded to put forward this issue in the eye of legislature and judiciary. The Indian legislature and judiciary are accepting the third gender and placing their special value in various institutions. It is well said that the changes take time, it cannot happen overnight, breaking of such stereotypes will take time as any other social revolution happened but it started with various level and in the world of globalization where the things are moving fast, information is running from one end to another end of the earth, the message of equality will also reach the maximum people in minimum time.
[1]The Indian Penal Code, 1860 (Act 45 of 860), S.8.
[2]The General Clause Act, 1897(May, 1974), S. 13.
[3] Act 169 of 2019.
[4]Section 2(k) of the act 169 of 2019.
[5]Chapter II of the act of 169 of 2019.
[6]Chapter IV of the act of 169 of 2019.
[7]Section 16 of the act of 169 of 2019.
[8]Section 5 of the act of 169 of 2019.
[9]Section 7 of the act of 169 of 2019.
[10]The Constitution of India.
[11]Act 57 of 1955.
[12]AIR2014SC1863.
[13]AIR2018SC4321.
