Transgenders’ Are ‘Third Gender’ And Have The Right To Live With Dignity!

By: Parmanand Pandey (Advocate, Supreme Court & General Secretary, IPC)

Transgenders or Hijras or Eunuchs have generally been discriminated ridiculed, humiliated and insulted and jeered in the society. They are often subjected to inhuman treatments. Thanks to the Supreme Court of India, now they have the constitutional guarantee to live with full human dignity. In the acclaimed case of ‘Legal Services Authority vs. Union of India’, the Supreme Court has directed to the Union and State Governments to make all efforts to create an atmosphere so that transgenders could live with their heads high. Transgenders have now been made a ‘Third Gender’, who will no longer be bracketed with ‘male’ and ‘female’. On 30th of June the Supreme Court severely reprimanded the Central Government for seeking clarification whether transgenders can be put along with bisexuals or gays or not. The court said why, the government has wasted two years’ time for seeking clarity where there was no ambiguity at all? This clarification of Supreme Court has come in respect of 2014 judgment, which was mainly authored by Justice K.S. Radhakrishnan who had said;

‘Seldom, our society realizes or cares to  realize  the  trauma,  agony and  pain  which  the  members  of  transgender   community   undergo,   nor appreciates  the  innate  feelings  of  the  members  of   the   transgender community, especially of those whose mind and body disown  their  biological sex.  Our society often ridicules and abuses the Transgender  community  and in public places like railway stations,  bus  stands,  schools,  workplaces, malls, theatres, hospitals, they are sidelined and treated as  untouchables, forgetting  the  fact  that  the  moral  failure  lies  in   the   society’s unwillingness  to  contain  or  embrace  different  gender  identities   and expressions, a mindset which we have to change.’

‘Non-recognition of the identity of Hijras, a transgender community, as  a  third gender,  denies them  the  right  of  equality  before  the  law  and  equal protection of law guaranteed  under  Article  14  of  the  Constitution  and violates the rights guaranteed to them under Article 21 of the  Constitution of India.’

‘Transgenders have till now been neither treated as  male or female, not given the status of a third gender, they are  being  deprived of many of the rights and privileges which other persons enjoy  as  citizens of this country. They are deprived of social and cultural participation and hence have restricted access to education, health care and public places. It amounts to denial of the Constitutional guarantee of equality before law and equal protection of laws. The community also faces discrimination to contest election, right to vote, employment, to get licenses etc. and, in effect, treated as an outcast and untouchable.   In fact, the State cannot discriminate them on the ground of gender, violating Articles 14 to 16 and 21 of the Constitution of India.

Laxmi Narayan Tripathy, a Hijra, who was an intervener in the case, highlighted the trauma undergone by him by telling “that he was born as a male.  Growing up as a child, she felt different from the boys of her age and was feminine in her ways. On account of her femininity, from an early age,  she  faced  repeated sexual harassment, molestation  and  sexual  abuse,  both  within  and outside the family. Due to her being different, she was isolated and had no one to talk to or express her feelings while she was coming to terms with her identity.  She was constantly abused by everyone as a ‘chhakka’ and ‘hijra’.  Though she felt that there was no place for her in society, she did not succumb to the prejudice.  She started to dress and appear in public in women’s clothing in her late teens but she did not identify as a woman.    Later, she joined theHijra community in Mumbai as she identified with the other hijras and for the first time in her life, she felt at home.That being a hijra, he has faced serious discrimination      throughout her life because of her gender identity.  It has been clear to the her that the complete non-recognition of the identity  of hijras/transgender persons by the State has resulted in the  violation of most of  the  fundamental  rights  guaranteed  to  them  under  the Constitution of India.

Transgender is an  umbrella  term  for persons whose gender identity,  gender  expression  or  behaviour  does  not conform to their biological sex. Transgender may also take in persons who do not identify with their sex assigned at birth, which include Hijras/Eunuchs who describe themselves as “third gender” and they do not identify as either male or female.  Hijras are not men by virtue of anatomy appearance and psychologically, they are also not women, though they are like women with no female reproduction organ and no menstruation.  Since Hijras do not have reproduction capacities as either men or women, they are neither men nor women and claim to be an institutional “third gender”.  Among Hijras, there are emasculated (castrated, nirvana) men, non-emasculated men, not   castrated(akva/akka)   and   inter-sexed   persons (hermaphrodites).  Transgender also includes persons who intend to undergo Sex Re-Assignment Surgery (SRS) or have undergone SRS to align their biological sex with their gender identity in order to become male or female.  They are generally called transsexual persons. Further, there are persons who like to cross-dress in clothing of opposite gender,   i.e   transvestites. Transgender Community  comprises  Hijras, eunuchs, Kothis,   AravanisJogappasShiv-Shakthis etc. and they,  as  a  group,  have  got  a  strong historical presence in  our  country  in  the  Hindu  mythology  and  other religious texts.   The Concept of tritiya prakrti  or  napunsaka  has  also been  an  integral  part  of  Vedic  and  Puranic  literatures.   The word ‘napunsaka’ has been used to denote absence of procreative capability.

With the onset of the colonial rule the situation had changed drastically.    During the British rule, legislation was enacted to supervise the deeds of Hijras/Transgender community, called the Criminal Tribes Act, 1871, which deemed the entire community of Hijras persons as innately ‘criminal’ and ‘addicted to the systematic commission of non-bailable offences’.    The  Act  provided  for the registration, surveillance and control of certain criminal  tribes  and eunuchs and had penalized eunuchs, who were registered, and appeared to  be dressed or ornamented like a woman, in a public street or place, as well as those who danced or played music in a  public  place.   Such persons also could be arrested without warrant and sentenced to imprisonment up to two years or fine or both.    Under  the  Act,  the  local  government  had  to register the names and residence of all eunuchs residing in  that  area  as well as of their properties, who were reasonably suspected of kidnapping or castrating children, or of committing offences under  Section  377  of  the IPC, or of abetting the commission of any of the said offences. Under the Act, keeping a boy of less than 16 years in the charge of a registered eunuch was made an offence punishable with imprisonment up to two years or fine. The Act also denuded the registered eunuchs of their civil rights by prohibiting them from acting as guardians to minors, from making a gift deed or a will, or from adopting a son.  The Act has, however, been repealed in August 1949.

Section 377 of the IPC found a place in the Indian Penal Code, 1860, prior to the enactment of Criminal Tribes Act that criminalised all penile-non-vaginal sexual acts between persons, including anal sex and oral sex, at a time when transgender persons were also typically associated with the prescribed sexual practices.  Reference may be made to the judgment of  the Allahabad High Court in Queen Empress v. Khairati (1884)  ILR  6  All  204, wherein a transgender person was arrested and prosecuted under Section  377 on the suspicion that he was a ‘habitual sodomite’. 

GENDER IDENTITY AND SEXUAL ORIENTATION

Gender identity is one of the most-fundamental aspects of life which refers to a person’s intrinsic sense of being male, female or transgender or transsexual person.  A person’s sex is usually assigned at birth, but  a relatively small group of persons may born with  bodies  which  incorporate both or certain aspects of both male  and  female  physiology.   At  times, genital anatomy  problems  may  arise  in  certain  persons,  their  innate perception of themselves, is not in conformity with  the  sex  assigned  to them at birth and may include pre and  post-operative  transsexual  persons and also persons who do not choose to undergo or  do  not  have  access  to operation and also include persons who cannot undergo successful operation.  Countries, all over the world, including India, are grappled with the question of attribution of gender to persons who believe that they belong to the opposite sex.

A case decided by House of Lords tells in Bellinger v. Bellinger (2003) 2 All ER 593 dealt with the question of a transsexual.  In the case, Mrs.  Bellinger was born on 7th September, 1946.  At birth, she was correctly classified and registered as male.  However, she felt more inclined to be a female. Despite her inclinations, and under some pressure, in 1967 she married a woman and at that time she was 21 years old.   Marriage broke down and parties separated in 1971 and got divorce in the year 1975.  Mrs.  Bellinger dressed and lived like a woman and when she married Mr.  Bellinger, he was fully aware of her background and throughout had been supportive to her. Mr. and Mrs. Bellinger since marriage lived happily as husband and wife and presented themselves in that fashion to the   outside   world.    Mrs. Bellinger’s primary claim was for a declaration under Section 55 of the Family Law Act, 1986 that her marriage to Mr. Bellinger in 1981 was void ab initio. The House of Lords rejected the claim and dismissed the appeal. Certainly, the “psychological factor” was not given much prominence in determination of the claim of Mrs. Bellinger.

ARTICLES 15 & 16 AND TRANSGENDERS

In India, the constitution prohibits discrimination against any citizen on certain enumerated grounds, including the ground of ‘sex’. In fact, Article 15 and 16 prohibit all forms of gender bias and   gender   based discrimination.

Article 15 states that the State shall not discriminate against any citizen, inter alia, on the ground of sex, with regard to:

(a)   access to shops, public  restaurants,  hotels  and  places  of  public entertainment; or

(b)   use of wells, tanks, bathing ghats, roads and places of public  resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

The requirement of taking affirmative action for the  advancement  of any socially  and  educationally  backward  classes  of  citizens  is  also provided in this Article.

Article 16 states that there shall be equality of opportunities for all the citizens in matters relating to employment or appointment to any office under the State. Article 16 (2) of the Constitution of India reads “No citizen shall, on grounds only of  religion,  race,  caste,       sex, descent, place of birth, residence or any of them, be  ineligible for, or discriminated against in respect or, any employment or  office under the State.” Article 16 not only prohibits discrimination on the ground of sex  in public employment, but also imposes a duty on the State to ensure that  all citizens  are  treated  equally  in  matters  relating  to  employment  and appointment by the State.

Articles 15 and 16 sought to prohibit discrimination on the basis of sex, recognising that sex discrimination is a historical fact and needs to be addressed.  Constitution makers, it can be gathered,  gave  emphasis  to the fundamental right against sex  discrimination  so  as  to  prevent  the direct or indirect attitude to treat people differently, for the reason  of not being  in  conformity  with  stereotypical  generalisation  of  binary genders.    Both gender and biological attributes constitute distinct components of sex.   Biological characteristics, of   course,   include genitals, chromosomes and secondary sexual features, but gender attributes include one’s self image, the deep psychological or emotional sense of sexual identity and character.

The Supreme Court has enhanced the scope of the Article 21 of the Constitution through its decisions like;a) Right to pollution-free water and air (Subhash Kumar Vs. State of Bihar, AIR 1991 SC 420),(b)Right to a reasonable residence and right to every child to a full development (Shantistar Builders Vs. Narayan Khimalal Totame AIR 1990 SC 630),(c)Right to  food, clothing,  decent  environment and  even  protection  of  cultural  heritage  (Ram  Sharan Autyanuprasi Vs. UOI, AIR 1989 SC 549), (d)Right of residents of hilly-areas  to  access  to  roads(State  of H.P. Vs. Umed Ram Sharma, AIR 1986 SC 847). (e)     Right to education (Mohini Jain Vs. State of Karnataka, AIR 1992 SC 1858), but not for a professional degree (Unni Krishnan J.P.  Vs.  State of A.P., AIR 1993 SC 2178).

The common golden   thread   which   passes   through   all   these pronouncements is that Art.21 guarantees enjoyment of life by all citizens of this country with dignity, viewing these human rights in terms of human development. Thus, the emphasis is on the development of an individual in all respects. The basic principle of the dignity and freedom of the individual is common to all nations, particularly those having democratic set up. Democracy requires us to respect and develop the free spirit of human being which is responsible for all progress in human history. In fact, there is a growing recognition that the true measure of development of a nation is not economic growth; it is human dignity.

The recognition that every individual has fundamental right to achieve the fullest potential is founded on the principle that all round growth of an individual leads to common public good. After all, human beings are also valuable asset of any country who contribute to the growth and welfare of their nation and the society. A person who  is  born  with  a particular sex and is forced to grow up identifying with that sex, and  not a  sex  that  his/her  psychological   behaviour   identifies   with,   faces innumerable obstacles in growing up. Such a person, carrying dual entity simultaneously, would encounter mental and psychological difficulties which would hinder his/her normal mental and even physical growth. It is not even easy for such a person to take a decision to undergo SRS procedure which requires strong mental state of affairs. However, once that is decided and the sex is changed in tune with psychological behaviour, it facilitates spending the life smoothly.

Justice A.K. Sikri concurring with Justice Radhakrishnan further said that, ‘the TGs are also citizens of this country. They also have equal right to achieve their full potential as human beings.  For  this       purpose, not only  they  are  entitled  to  proper  education,  social       assimilation,  access  to  public  and  other  places  but  employment       opportunities as well.’

The Apex Court then said; ‘we are of the firm opinion that by recognising such TGs as third gender, they would be able to enjoy their human rights, to which they are largely deprived of for want of this recognition. The issue of transgender is not merely a social or medical issue but there is  a need to adopt human right approach towards transgenders which may  focus  on functioning as  an  interaction  between  a  person  and  their  environment highlighting the role of society and changing the stigma attached  to  them. TGs face many disadvantages due to various reasons, particularly for gender abnormality which in certain level needs to physical and mental disability. Up  till  recently  they  were  subjected  to  cruelty,  pity  or   charity. Fortunately, there is a paradigm shift in thinking from the aforesaid approach to a rights based approach. Though, this may be the thinking of human rights activist, the society has not kept pace with this shift. Therefore, 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 court said that, by recognising TGs as third gender, it  is  not  only upholding the rule of law but also advancing justice to the  class,  so  far deprived of their legitimate  natural  and  constitutional  rights.  It is, therefore, the only just solution which ensures justice not only to TGs but also justice to the society as well. Social justice does not  mean  equality before law in papers but  to  translate  the  spirit  of  the  Constitution, enshrined  in  the  Preamble,  the  Fundamental  Rights  and  the  Directive Principles of State Policy into action, whose arms are long enough to bring within its reach and embrace this right of  recognition  to  the  TGs  which legitimately belongs to them’.

The Court declared, ‘that Hijras, Eunuchs, apart from binary gender, be treated as “third gender” for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature. Transgender persons’ right to decide their self-identified gender is upheld and therefore, the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender. Centre and the State Governments  have been directed  to  take  steps  to  treat them  as  socially  and  educationally  backward  classes  of citizens and extend all kinds of reservation in cases of  admission in educational institutions and for public appointments. Governments should seriously address the problems being faced by Hijras/Transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence for SRS for declaring one’s gender is immoral and illegal. Proper measures should be taken to provide medical care to TGs in the hospitals and also provide them separate public toilets and other facilities and steps for framing various social welfare schemes for their betterment should be adopted.’

Hopefully, this verdict of the Supreme Court would completely transform the lives of Transgenders and they would be able to enjoy the life with honour and dignity, which has long been denied to them because of deep social prejudices.

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