A person whose self-identified gender does not correspond to the gender assigned to them at birth. Their gender identity may not conform to conventional binary notions of male and female, but rather as a third gender. The term transgender is not indicative of sexual orientation, hormonal makeup, physical anatomy, or how one is perceived in daily life.
The term ‘transgender’ should be distinguished from terms such as ‘transsexual’ and ‘intersex. ‘It should also be distinguished from sexual orientation, which refers to an individual’s enduring physical, romantic, and/or emotional attraction to another person. Transgender, by contrast, relates to one’s internal identification as a particular gender. Thus, to identify as transgender does not necessarily determine one’s sexual orientation as gay, lesbian or bisexual.
It is also worth highlighting the crucial distinction between sex and gender. Sex refers to the biological anatomy of a person typically categorized as ‘male’, ‘female’ or ‘intersex.’ Indicators of sex include sex chromosomes, gonads, internal reproductive organs, and external genitalia. Gender, however, refers to the cultural and social constructs which typically characterize the sexes. These include taught behaviors, roles, norms, relationships and interactions with the opposite sex. Thus transgender persons’ gender-identity and biological sex can be said to be incongruent.
Transgender terminology in India
A biological male who rejects their ‘masculine’ identity to identify either a woman, or “not-man”, or “in-between man and woman”, or “neither man nor woman”. They have a long standing tradition/culture in Indian society and have strong social ties formalized through a ritual called “reet” (becoming a member of the Hijra community). There are regional variations in the use of terms referred to Hijras, for example, Kinnars (Delhi) and Aravanis (Tamil Nadu).
A person who is born male, but is castrated or emasculated. The term Eunuch is commonly used interchangeably with the term Hijra in India, however many transgender persons consider the term ‘eunuch’ to be derogatory. This was confirmed by the group in Bhubaneswar, who did not care for this term.
Regional variation of Hijra used in Delhi/ the North and other parts of India such as Maharashtra.
Regional variation of Hijra used in Tamil Nadu. Some Aravani activists want the public and media to use the term ‘Thirunangi’ to refer to Aravanis.
A biological male who shows varying degrees of ‘femininity.’ Some proportion of Hijras may also identify themselves as ‘Kothis,’ but not all Kothis identify themselves as transgender or Hijras.
Males who are possessed by or particularly close to a goddess and who have feminine gender expression, typically located in Andhra Pradesh.
While some transgender Indians voluntarily leave home to join transgender communities, many of them are abandoned by their families, who are not accepting of their child’s transgender status. It is for this reason that they form their own close-knit family-like units, led by a ‘guru,’ – an older leader that acts as a mentor to their younger disciples or ‘chela.’
It is often the case in these communities that the guru takes payment from her chela, in exchange for providing her with her material subsistence. This has led to concerns that some chela may be at risk of exploitation by their gurus.
Background and Issues Faced by Transgender Persons in India
Ostracized from mainstream society and victim of widespread discrimination, India’s transgender population remains one of the country’s most marginalized groups. It is estimated that there are between 2-3 million transgender persons living in India, with some calculations even higher.
Transgender persons have been excluded and vilified since the period of the British Raj. Prior to this, they played a prominent role in the Delhi Sultanate and Mughal royal courts, in particular under the Delhi Khiljis in the thirteenth and fourteenth centuries, and the Mughals from the sixteenth to nineteenth centuries.
Transgender persons – Hijras enjoyed influential positions and were accorded much respect. They were trusted to guard and protect women’s palaces, as well as serving as watchmen, guards and messengers throughout the palaces and even advisers to the kin During the era of the British Raj, however, the perception of Hijras was drastically altered. The British considered Hijras as ‘a breach of public decency’ and categorized them as a ‘criminal tribe’ or ‘criminal caste’ under the Criminal Tribes Act 1871. Section 377 of the Indian Penal Code was used as an instrument of harassment and physical abuse against Hijras and transgender persons. These measures lead to the ostracism of the Hijra community, stripping them of their civil rights and status. Due to severe social and economic discrimination, Hijras were cut off from society, unable to work and subject to everyday abuse because of their identities. Indeed, the term ‘Hijra’ came to be used with contempt, as a derogatory term, with such sentiment still present at times even today.
The team identified a number of human rights violations which are commonly committed against transgender persons in India. The team set out to determine whether, following the NALSA judgment, these violations are still occurring:-
Discrimination and social exclusion
Lack of public sensitization of transgender issues including public service providers, discrimination and incidences of physical and verbal abuse on account of being transgender
Education and employment
Low level of education, financial barriers to education, inability to access proper employment leading to engagement in begging and sex work.
Inaccessibility of HIV treatment, unavailability of Sex Reassignment Surgery (SRS) – including counseling and hormone replacement therapy, lack of knowledge and accessibility of contraception and the lack of provision of separate wards and beds for transgender persons.
Inaccessibility of proper housing, lack of inclusion in government housing schemes, inability to purchase land, inability to rent property
Abandonment by family, the pressure to marry, guru/chela relationship.
Lack of access to public toilets, lack of provision of gender neutral/separate transgender toilets, discrimination in accessing public toilets.
No provision of ID cards was stating transgender status, difficulty officially changing name/gender in documents such as educational certificates, lack of awareness of implications of doing so.
The Indian Constitution guarantees fundamental rights to every Indian citizen, irrespective of race, place of birth, religion, caste or gender. Part III of the Constitution identifies a ‘person’ or ‘citizen’ as a rights-holder without reference to sex or gender. Thus, by virtue of the fact that a transgender person is a human being, all constitutional rights guaranteed by the Constitution must necessarily flow to a transgender person. These include equality before the law, freedom of speech and expression and the right to constitutional remedies of article 14, 15, 16, 19, 21: –
- Article 14 of the Constitution guarantees that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” Equality requires the full and equal enjoyment of all fundamental rights contained in the Constitution. Article 14 also carries a positive obligation on the State to ensure equal protection of the law by facilitating social and economic inclusion of marginalized groups. As persons protected by the Constitution, the State has obligations to ensure that transgender persons may enjoy equal protection of laws under Article 14.
- Article 15 explicitly prohibits discrimination against any citizen on grounds of sex, from which one can infer includes gender. Indeed, it has been accepted by the Supreme Court that the term ‘sex’ in the Indian Constitution is not limited to the biological sexes of male or female, but also to include people who consider themselves to be neither male or female. Article 15 also provides that affirmative action is taken for the advancement of ‘socially and educationally backward classes of citizens.’ Thus, it is clear that when transgender persons are discriminated against by state-owned institutions, for example, hospitals or the police, and is not provided with equal opportunities such as access to education or employment, Articles 14 and 15 are violated.
- Article 16 both prohibits discrimination on the ground of sex in public employment and also imposes a duty on the State to ensure that all citizens are treated equally in such matters.
- Article 19 (1) (a) states that all citizens shall have the right to freedom of speech and expression. This includes a person’s right to expression of their self-identified gender. Subject to restrictions in Article 19(2), the right to freedom of speech and expression means that the person is free to dress and project their outward personal appearance in the way that they choose. Expression and presentation of one’s gender-identity, therefore, must be protected under Article 19(1)(a).
- Article 21 provides that ‘no person shall be deprived of his life or personal liberty except according to procedure established by law. ’Article 21 includes the right to dignity. As gender constitutes the core of one’s sense of being and identity, the legal recognition of gender identity is, therefore, part of the right to dignity and freedom guaranteed under Article 21. The Supreme Court recognizes that gender identity lies at the core of one’s personal identity, gender protecting not only males and females but transgender persons too. Furthermore, Article 21 also protects the personal autonomy of an individual, including the negative right to be free from interference by others and the positive right of individuals to make decisions about their own lives, partake in activities of their choosing and express themselves. As the self-identification of one’s gender is integral to their personal autonomy, this falls under the purview of Article 21.
Section 153A IPC
In the instance of discriminatory remarks made against transgender persons, if the person is a Scheduled Caste or Scheduled Tribe, then Scheduled Castes and Scheduled Tribes Prevention of Atrocities Act 1989 will be applicable. Alternatively, the Protection of Civil Rights Act 1955 – prohibiting discrimination on the grounds of ‘untouchability’ and punishing the practice of untouchability- may be applicable. Moreover, Section 153A IPC makes it an offense to promote enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony. This includes by words or any prejudicial act. Thus, verbal abuse or discriminatory behavior towards transgender persons can constitute an offense under sec 153A IPC.
Section 317 IPC
Abandonment of a child is a punishable offense under Section 317 IPC if the child is abandoned under the age of twelve years. As the abandonment of transgender children takes place usually between the age of twelve & eighteen years, it would be beneficial to the transgender community (as well as any child of any gender over the age of twelve years who is abandoned)for the age of the qualifying child for this offence to be raised to at least sixteen years.
Section 375 IPC
Section 375 prohibits rape, however, as the provision currently stands, rape only constitutes an offense if committed against a woman. This means that this provision only provides protection to women, failing to recognize the common occurrences of rape of transgender persons and men. The word ‘rape’ in Section 375 of the Indian Penal Code (IPC) should include all sexual crimes against all persons. The Criminal Law Amendment Act 2013 sec 354A expressly includes offenses of sexual harassment, but again only protects women. This is also true of sec 354B the offense of assault or use of force with intent to disrobe a woman. This section also fails to protect transgender persons.
Section 377 IPC
Sec 377 prohibits the ‘unnatural offenses’ of voluntary carnal intercourse against the order of nature with any man, woman or animal. As noted above, it has been historically invoked as an instrument of abuse against transgender persons in India. However, under the new Indian laws as per the new amendment made this sec. i.e. sec 377 has now been successfully been declared unconstitutional by Indian Judiciary.
As we know, that after the advent of British Rule India till its end we are following many of the old trends and practice which were being followed evolved at their time. In following those customs there was a practice which is being continued of disrespecting transgender and violating their constitutional rights. As it is old practice it will take time, but now by declaring sec. 377 unconstitutional India has proved and also put itself one step forward in ensuring transgender their rights and letting them live their life with dignity and equality. I hope that soon the Indian constitution would make such laws that all can be seen equal in the eye of law.
Edited by Ankita Jha