It is a brave and honest person who can stand apart from the masses and openly challenge its most treasured beliefs. ~ Donna Evans
Every citizen has a right to life, the right to self-expression, under the Constitution. The right of gender expression is inherent in it, as much as the right of expression of sexuality. This is a facet of the right to life. The space of the third gender is not a space that is easy to inhabit for the ones who are there, and not easy to imagine for the ones who are not there.
Parents and siblings do not understand why this child cannot be like the others. Nor does the child know why, when he looks like his brothers, he wants to be like his sisters or the other way round. Acceptance is denied and the child faces exclusion even at home.
In Sunil Babu Pant vs Nepal Govt and others, the Supreme Court of Nepal used the Yogyakarta Principles and held that sexual orientation is not “mental perversion” or “emotional and psychological disorder” and that the people of different gender identities are entitled to enjoy their rights without discrimination.
The discrimination against the third gender is embedded in our consciousness and is aggravated by ignorance and insensitivity. Even well-meaning persons are uncomfortable if they face someone who does not fit in the Procrustean beds of “the normal”.
Hijras, who can be eunuchs, intersex or transgender, have been part of South Asia’s culture for thousands of years. Eunuchs are celebrated in sacred Hindu texts such as the Mahabharata and the Kama Sutra. They also enjoyed influential positions in the Mughal courts.
When the British came to power in India, the community’s fortunes changed, with the disgusted colonists passing a law in 1897 classing all eunuchs as criminals. Since then many have been ostracised – either for cross dressing or being intersex – and have gone on to form their own communities, around a guru or mother figure to provide emotional and financial security. Many even took to using a secret code language known as Hijra Farsi for protection.
More recently, hijras have been seen as auspicious and are often asked to bless celebrations such as marriages and births. In India’s larger cities this has waned, forcing many to rely on begging or prostitution. The effect of this dangerous work and the community’s limited access to health and welfare services can be seen in the staggering fact that HIV rates among hijras stand at 18% in Mumbai, while the rate among the wider population is only 0.3%.
“Avina [a transgender] in the public hearing for “Access to Justice and Social Inclusion” asked the audience, “Do you see me?” and when they said yes, she said that though you ‘see’ me you don’t ‘see’ me. I am invisible, I am nowhere, we are the third gender.” Our country must be having the highest percentage of “invisible” people, people who do not matter, the disabled, the third gender, the old, the oppressed, the pavement dwellers, the list goes on. Perhaps that is why the forgotten ones vote in large numbers while for the others, it is a matter of option. For the invisible groups, it is important that they vote, because an election is the only time they count. That is why this community fought for the right to indicate their gender as “O” for ‘others’ in the electoral rolls, and got it in 2009.
Recently, the fight for equality of transgenders scored a remarkable victory. The Argentine Senate unanimously passed the Gender Identity Act, which has been described as the most progressive and liberal in the world. It recognises that a person’s subjectively felt and self-defined gender may or may not correspond with the gender assigned at birth. This is the right that the participants at the public hearing claimed, which is acknowledgment of their “humanness”. If their gender identity is not accepted then even if they are elected, their election may be nullified. This has happened in our country.
The State of Tamil Nadu has a fair record of recognising the rights of the transgender community. But let us remember that this is not state largesse, this is the state performing its duty under the Constitution.
One participant said in poignantly poetic words that we have day and night and the beauty of dusk and dawn too, the in-betweens, and asked why their worth cannot be recognised. Transgender persons walking alone are subjected to harassment, and so, in defence, they adopt a loud and aggressive behaviour. There are highly qualified, educated and articulate persons who cannot secure employment because of the difference. They pleaded, “Please do not drive us to sex-work. If we have no other option, what do we do?” They argue that if there can be reservation for the differently-abled, there must be for the differently-gendered too. One speaker said, “I too want to nurture my child.” There are no answers in a climate of non-acceptance.
The experience of the transgender community with the police is dignity-destroying. If the face of law which should protect the citizen turns brutal, to whom will the weak and vulnerable turn?
The young transgender drops out of school because of exclusion and one participant argued, “Provisions should be made that in whatever attire a child comes to school the right to education cannot be denied.” A safe childhood and access to education is their right. When state and society have no space for the different ones, they are doomed to be excluded. So wherever there is a form to be filled or there is a definition of “person” as male or female, this group goes invisible.
The community wanted to know how the domestic violence against them can be addressed if the law recognises protection of women alone.
They wanted an Indian protocol put in place for the sex change process.
All they want is to be recognised as persons and treated with dignity. I will end with their own words: “Today … we want to earn a decent livelihood, live with dignity.” In short, they assert their right under Article 21 of the Constitution.
- The supreme court of India ruled that transgender people would be recognised on official documents under a separate “third gender” category.
- The SC asked the Centre to treat transgender as socially and economically backward. This means that now, for the first time, there are quotas of government jobs and college places for hijras.
- The apex court also said states and the Centre will devise social welfare schemes for third gender community and run a public awareness campaign to erase social stigma.
- The SC said the states must construct special public toilets and departments to look into their special medical issues.
- The SC also added that if a person surgically changes his/her sex, then he or she is entitled to her changed sex and cannot be discriminated.
- The apex court expressed concern over transgenders being harassed and discriminated in the society and passed a slew of directions for their social welfare.
- It said that section 377 of IPC is being misused by police and other authorities against them and their social and economic condition is far from satisfactory.
- The bench clarified that its verdict pertains only to eunuchs and not other sections of society like gay, lesbian and bisexuals who are also considered under the umbrella term ‘transgender’.
- The bench said they are part and parcel of the society and the government must take steps to bring them in the main stream of society.
The change follows similar legislation in Nepal, Pakistan and Bangladesh.
The exclusion faced by the community has been acute – from doctors refusing to examine or treat hijras, to police harassment and discrimination keeping them locked out of mainstream employment. This week’s change in the law is a “big step”, she says, ensuring that discrimination can now be challenged.
Most of the Transgender community is either beggar or sex worker. It was to change this reality that a year ago the Supreme Court recognised transsexuals and transgenders as the ‘third gender’ in what was hailed as a historic judgment. Nothing historic, however, has happened since; even though we are well past the six-month deadline the court gave the government to implement the recommendations of its Nalsa judgment.
On April 24,2015 , the Rajya Sabha passed a private member’s Rights of Transgender Persons Bill 2014, which will head to the Lok Sabha for the final debate and vote.
How have States fared?
What it will mean on ground for the community is less certain. After the Nalsa ruling, the Centre sent out notices to the States to implement five steps:
- a Central grant of Rs.1,000 a month to parents of transgender children;
- a Class VII-X scholarship;
- a scholarship for higher studies;
- skills training schemes,
- a monthly pension scheme.
With the Centre-State contribution set at 75:25, none of these seem particularly challenging, but most States have not implemented even one.
Tamil Nadu has possibly done the most:
- a monthly pension of Rs. 1,000 and subsidised bank loans.
- set up a Transgender Welfare Board, followed by Maharashtra and West Bengal.
Karnataka recently announced a monthly pension of Rs. 500, and Bihar and West Bengal reservations in government jobs. A few universities have opened up seats for transgenders.
But this is too little and too vague to have any real impact. For instance, the Supreme Court, apart from making ‘third gender’ a legal option, also made it clear that ‘transgender’ included people who had no surgery. But the Ministry of External Affairs still asks for proof of sex reassignment surgery(SRS) before it allows a gender change on the passport.
In fact, one of the most significant breakthroughs of the Nalsa ruling was the right of ‘self-identification’, with verifications allowed only through psychological assessment and not physical tests. “It’s a huge win because horror stories abound of how they are groped as part of ‘medical’ exams.”
And what happens once identity is finally established?
“People get name and gender officially changed and published. When they return, prospective employers still reject them.”
“They hear my voice on the phone and say, ‘but you sound like a man, we cannot rent you a flat.’”
And that is really where all the reform efforts falter. How do you change mindsets? One of the saddest realities is that most families throw their children out when any doubts about gender identity surface. Says Dr. Ramakrishnan, “That is why the Rs. 1,000 per month grant to parents is vital; it’s motivation to at least not kick the child out.”
“How do you protect these children? They are mocked, bullied, beaten up; most of them drop out.”
- State governments must initiate sensitivity training for teachers so that they stop the bullying and, in turn, sensitise students.
- Counsellors must visit schools regularly so that gender-confused children have someone to talk to. It is at the age of 12 or 13 that gender dysphoria first surfaces — where a person experiences distress because there is a mismatch between the biological sex and the gender they identity with mentally. It’s now that the children are most vulnerable and need assurance that it is fine to be gender different.
When families and governments fail to provide these security nets, they drive their children into conventional hijra (aravani) communities that adopt them, but also perpetuate begging and sex work as a way of life.
It is estimated that there are about 4.9 lakh transgenders in India today, a number that is likely wildly off the mark, because Census workers are just not qualified to ask the right questions. For instance, there is practically no recognition of female-to-male transgenders — “they are dismissed as “modern girls with short hair,” says Dr. Ramakrishnan.
But are transgenders willing to take on ordinary jobs, given that they need to fund expensive hormone injections at Rs. 3,000 a month, and genital realignment surgery, vaginoplasty or breast augmentations at Rs. 2-3 lakh each? There are no facilities for these procedures in India; those who can, fly to Thailand, others resort to quacks and often die or are maimed during surgery.
In fact, the need for quick and big money is a big reason why sex work is so tempting. “It’s not that simple,” refutes Ms. Aher, “Our vulnerability is high, our client list is limited; we face more risks of violence or HIV than female sex workers.” So, given a shot at a good job, most transgenders will take it up, she says. Which brings us right back to the start — education. “Give them the choice. Let them get skilled, then let them decide whether they want regular jobs or sex work,” says Ms. Aher.
It’s a vicious cycle, and no amount of ‘welfare’ will help without a sea change in attitude. The Bill just passed in the Rajya Sabha cannot do much unless fear, shame, and social stigma are removed and the community is mainstreamed. A transgender version of the ‘My Choice’ video on YouTube says, “If you want to help us, just stop treating us like outcastes.”
LGBT RIGHTS IN INDIA : LEGAL STATUS
Same-sex sexual activity legal?
Illegal under section 377 of the Indian penal code. Penalty: Up to life imprisonment
Legal gender change allowed on SRS. Right to change legal gender to Male/Female/Other without SRS proposed April 15, 2014 and under discussion
Military service N.A
Legal recognition of third gender
AdoptionTrans* adoptions allowed
Not all transgender people feel comfortable being referred to as “third sex”. Many prefer to be classed simply by the gender they have chosen, as women or men. Campaigners point out that more needs to be done to stop transgender people, and hijra communities in particular, from being criminalised – such as overturning the controversial section 377 law that makes homosexual acts a crime.