By Parmanand Pandey
Advocate
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, Aravanis, Jogappas, Shiv-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 dysphagia, 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.