The Third Gender

10 Dec 2019 12:46:56

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Among LGBTQ, Transgender Rights are the least talked about


Dr. Smitha Shine

Transgender’ is represented by the ‘T’ in the popular acronym LGBTQ (Lesbian, Gay, Bisexual, Transgender, Queer or Questioning) community. ‘Transgender’ can refer to an individual whose gender identity or gender expression that differs from their assigned birth or biological sex. The term transgender was first coined by a psychiatrist of Columbia University named John F. Oliven in his 1965 reference work ‘Sexual Hygiene and Pathology’ where he mentioned that the term which had previously been used ‘transsexualism’ is misleading. Some transgender people who desire medical assistance to transition from one sex to another identify as transexual. Other transgender identities include transgender male, transgender female, male-to-female (MTF) and female to male (FTM), cross-dressers (those who wear clothes of the other), and genderqueer people (they feel they belonged to either both genders or neither gender).
Transgenders have existed in every culture, race and religion since the outset of human life.
In India, there are a wide range of transgender-related identities which includes the Hijras, Aravanis, Kothis, Jogtas/Jogappas, and Shiv Shakthis. This community has a long history in India. Hinduism has always acknowledged and accepted transgender people. Transgenders are mentioned as ‘tritiya prakriti’ or the third sex in ‘Kamasutra’, the ancient Indian Sanskrit text on sexuality, eroticism and emotional fulfilment in life. This indicated that three genders are part of nature. During those days they were treated with great respect. They were neither mistreated nor denied basic rights. The ‘Ardhanarishwara’ form of Lord Shiva and Goddess Parvati represents a transgendered entity. Besides we can see the presence of transgenders in Epics like Ramayana and Mahabharata. In Ramayana, when Shri Ram leaves Ayodhya for his 14 years exile, his subjects follow him into the forest, but he tells them that all the ‘men and women’ should return to their places. After 14 years of adventures, when he returns to Ayodhya, he finds that the Hijras, being neither men or women, haven’t moved the place. Shri Ram who was impressed by their loyalty grants Hijaras the boon to confer blessings on people during auspicious occasions like weddings and childbirth. Mahabharata also depicted transgenders like Shikandi (the great warrior who killed Bhisma), Mohini (the female version of Vishnu), and Brihannala (Arjuna becomes a transgender during the one year exile). This shows that trans-people are always a part of Indian culture and beliefs. During the Mughal rule in medieval India trans-people were given important positions in security and administration. But during the British rule, they were highly discriminated and denied their rights. After Independence also the society saw the transgenders as a category who are doing prostitution, kidnapping and castrating young boys. The harsh reality is that rejection from their own families, mistreatment from society, lack of access to education and job forces them to do begging and prostitution. In India as per the census of 2011, the population of transgender is estimated around 4.88 lakh. Indian census has never recognised the third gender while collecting census data for years. However, in the Census of 2011, data of transgender were collected in the category of ‘Others’ under Gender with details related to their employment, literacy, and caste. Indeed they are an integral part of our society but belongs to the marginalised group which faces legal, social, cultural and economic difficulties. The most important problems faced by transgenders in India is they are forced to leave parental home thereby subjected to rape, physical and verbal abuse, lack of educational facilities, lack of medical facilities (like HIV care &hygiene), no access to bathrooms/toilets, forced to do prostitution, limited access to public places, unwanted attention, downtrodden, depression, tobacco and alcohol abuse. In brief, they are excluded from participating in social, cultural and economic life and may end up their life by engaging themselves as sex workers, beggars and dancers. This is the real story of many trans-people in India. The truth is that we usually ignore or don’t even try to understand them. Hence, we as a society are responsible for their condition.
India is a country where we have a well-established framework of Fundamental Rights embedded in the Constitution which is vital for the development of any human being. Like other citizens, transgenders are entitled to the four important provisions of fundamental rights. The first and the foremost right they are deserving is in Article 14 which states that the state shall not deny any person equality before the law or the equal protection of laws within the territories of the state. Article 15 shows that the state shall not discriminate against any citizen on the grounds of race, caste, religion, sex, place of birth or any of them. Article 19 is about the citizens' rights to
Freedom of speech and expression, freedom of assemble peaceably and without arms, freedom to reside and settle in any part of the territory of India, freedom to practice any profession or to carry on any occupation, trade or business. Article 21 states Right to his life or personal liberty. The Constitution provides for the fundamental right to equality and tolerates no discrimination on the grounds of sex, caste, creed or religion and guarantee political rights and other benefits to every citizen. However, transgenders continue to be excluded from their rights. In 1994, they got voting right but the task of issuing them voter identity cards got caught up in the male or female question. Several of them were denied cards with sexual category of their choice. It was only in April 2014 trans people got recognition when the supreme court stating one's sexual orientation as an integral part of personality, dignity, freedom and identified transgender as a “Third Gender” in the National Legal Services Authority (NLSA) versus Union of India case. Based on the NLSA judgment, the Rajya Sabha passed the Rights of Transgender Bill, 2014. However, the government then passed another Bill, Rights for Transgender Persons Bill, 2015, modifying on the 2014 bill by removing the provisions relating to Transgender Rights Court as well as the National and State Commissions. The bill was passed in the Rajya Sabha and transmitted to the Lok Sabha. But it was never taken up for discussion. In August 2016, the government in Lok Sabha introduced its own bill to protect the transgender community’s rights—the transgender persons (Protection of Rights Bill), which criminalised begging and denied people’s right to self-identify as trans. The bill faced opposition from the community and activists for several reasons and was sent to a parliamentary standing committee. But the report it produced in July 2017 was rejected by the government. In December 2018, the government returned with the bill in Lok Sabha and passed it with 27 amendments that included a different definition of a transgender person. But the bill was not passed by Rajya Sabha. So, the bill was introduced in the Lok Sabha again and passed on August 5, 2019. The Rajya Sabha on November 26, 2019 passed the Transgender Persons (Protection of Rights) Bill, 2019. However, the community is not happy about it at all. Their following major complaints need to be considered:
  1. The bill does not recognise the right to identify one’s gender. It only allows for the certificate to identify a person as ‘transgender’ till they undergo sex reassignment surgery and apply for another certificate
  2. The bill did not provide extensive penalties for crimes such as rape committed against transgender persons in comparison with the seven years of imprisonment for sexual violence against women
  3. The bill does not explicitly define what constitutes discrimination in the context of the transgender community and fails to specify punishment for those who discriminate
  4. The bill does not make any mention of reservation in education and employment for them
  5. The bill does not specify the healthcare services would be free or subsidised by the ­­­government. 
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