From the very inception of the human race, the human body has been classified into two- just two categories—Men and women, Male and female, masculine and feminine. And it took us around seven decades since we secured our independence and gave ourselves a Constitution, to realize and acknowledge that there is a third gender which is very much present amongst us and which doesn’t confine itself within our preconceived binary of genders—the transgender/hijra/kinnar, as they identify themselves, has been side-lined, tormented and discriminated against for so long now. Mostly seen as untouchables, they are often shunned and defamed by society.
Many voices were raised but couldn’t make it to the great change until 2012, when the National Legal Services Authority (NALSA), an Indian statutory body constituted to give legal representation to marginalized sections of the society, filed a writ petition with the Supreme Court of India.
The Supreme Court in the said petition gave a historical decision and upheld the rights of the transgender community. The court recognized that gender identity is one of the most fundamental aspects of life which refers to a person’s intrinsic sense of being a male, female, or transgender or transsexual person. They opined that the guarantee to equality and non-discrimination on the ground of gender identity is increasing and gaining acceptance worldwide and that it can and should also be applied in India.
FACTS OF THE CASE:
In 2012, the National Legal Services Authority, an Indian statutory authority, filed a writ petition in the Apex Court seeking legal status for people who fall outside the gender binary system. Poojya Mata Nasib Kaur Ji Welfare Society, an NGO working for the upliftment of the Kinnar/transgender community, and Laxmi Narayan Tripathi, a very well-known transgender activist were the other petitioners in this case. The petitioners claimed that non-acknowledgment of their gender identity contravenes the provisions provided under Article 14 and Article 21 of the Indian Constitution. The transgender community appealed that their inability to conform to the binary system of sex and gender results in them not getting equal opportunities, protection of rights, and social welfare schemes and programs. They also prayed for the inclusion of their community within the spectrum of the backward community, as well as the right to be able to exhibit their true-self in various government institutions.
Various counsels from various states and UTs were heard who had explained the steps that were taken to improve the conditions of the transgender community in their respective states and Union Territories. Laxmi Narayan, being one of the petitioners, explains that she was born like a male but on account of her unconventional identity; she was always subjected to repeated sexual harassment and mental & physical trauma, both within and outside the family. She was ostracized from society like she doesn’t belong in there along with getting abused with names like Chhakka, Hijra, etc. Another eunuch named Siddharth Narain told the court that she was in her 10th std. when she realized that she doesn’t fit in the preconceived gender binary of our society and how she felt that joining the hijra community was the only way to make herself feel comfortable; at home. Various other people belonging to the transgender community who faced similar problems on account of their identity were heard by the court and then the divisional bench of Justice K.S. Panicker Radhakrishnan and Justice Arjan Kumar Sikri gave the historical judgment which changed the outlook of the gender discourse in India.
DEFINING ‘TRANSGENDER’ //A HISTORICAL OVERVIEW:
The word transgender, in India, refers to hijras, eunuchs, kothis, Shiv-Shaktis, etc, and have existed around us since 9th century BC. In the contemporary sense, *‘transgender’ is a category evolved in the activism of the United States and western Europe as an ‘umbrella term’ to encompass a spectrum of people who transgress gender norms, widening the scope of the older and more medicalized term ‘transsexual’, which specifically connoted those who sought physical transformation through surgical procedures to affirm their gender identity.
The word ‘Eunuch’ has its roots in Greek and means “keeper of the bed”. Eunuchs were basically ‘castrated men’ and were in popular demand to guard women quarters of royal households. They are officially recognized as the third gender in countries of the Indian subcontinent, being considered neither completely male nor female. Hijras have a recorded history in the Indian subcontinent from antiquity onwards as suggested by Kama Sutra. Many hijras live in well-organized all-hijra communities led by a Guru. These communities mostly consist of those who are in abject poverty, have been rejected by their families and societies, or have fled from their places of origin. Many work as sex workers for survival.
Hijra, being a Hindustani word, has been translated into English as “Eunuch” or “Hermaphrodite” where the irregularity of the male genitalia is central to the definition. However, in general, hijras are born male, only a few having been born with intersex variations. Some Hijras undergo an initiation rite into the Hijra community called Nirvaan, which involves the removal of the penis, scrotum, and testicles.
The foundational work of Hindu law, the Manu Smriti (200 BC-200 AD) explains the biological origins of the three sexes: **“A male child is produced by a greater quantity of male seed, a female child by the prevalence of the female; if both are equal, a third-sex child or boy and girl twins are produced; if either is weak or deficient in quantity, a failure of conception results.” Indian linguist Patanjali’s work on Sanskrit grammar, the Mahabhaya (200 BC), states that Sanskrit’s three grammatical genders are derived from three natural genders. The earliest Tamil grammar, the Tolkappiyam (3rd century BC) also refers to hermaphrodites as a third “neuter” gender (in addition to a feminine category of unmasculine males). In Vedic astrology, the nine planets are each assigned to one of the three genders; the third gender, Tritiya-Prakriti, is associated with Mercury, Saturn, and (in particular) Ketu. In the Puranas, there are also references to three kinds of devas of music and dance: Apsaras (female), Gandharvas (male), and Kinnars (neuter).
The concept of ***“Tritiya-Prakriti” or “napumsaka” had been an integral part of the Hindu mythology, folklore, epic and early Vedic and Puranic literature. The term “napumsaka” had been used to denote the absence of procreative ability, presented by signifying difference from masculine and female markers. Thus, some of the early texts extensively dealt with issues of sexuality and the idea of the third gender which was an established thought therein. The epic Ramayana, too, speaks of a very interesting tale, that when Lord Rama was leaving for exile upon being banished from the kingdom for 14 years, he turned around to his followers, and asks all ‘men and women’ to return to the city. Among his followers, the hijras alone felt bound by this direction and decided to stay with him. Impressed with their loyalty, Rama sanctioned them the power to confer blessings on people on auspicious occasions like childbirth and marriage, and also at inaugural functions which, it was supposed to set the stage for the custom of ‘badhai’ in which hijras sing, dance and confer blessings.
Speaking of the medieval times, Hijras played a famous role in the royal courts of the Islamic world, particularly in the Ottoman empires and the Mughal rule in Medieval India. They rose to well-known positions as political advisors, administrators, generals as well as guardians of the harems. They were considered clever, trustworthy, and fiercely loyal and had free access to all spaces and sections of the population, thereby playing a crucial role in the politics of empire-building in the Mughal era. BUT, situations changed drastically, as accounts of early European travelers show, the colonial rule (18th century) was repulsed by the sight of Hijras and could not comprehend why they were given so much respect in the royal courts and other institutions. By the second half of the 19th century, the British colonial regime vigorously sought to criminalize the hijra community and to deny them any civil rights. A legislation named The Criminal Tribes Act, 1871 included all hijras who were allegedly concerned in the kidnapping and castrating children and dressed like women to dance in public places. The punishment for such activities was up to two years imprisonment and a fine or both. Although, this act was repealed in 1952, yet its legacy continues and many local laws still reflected prejudicial attitudes against certain tribes, including against hijras. This pre-partition history influences the vulnerable circumstances of hijras in this contemporary world. Later, The Supreme Court declared transgender as “third gender” paving a way for them to bring themselves to the mainstream and forsake their ostracized identity. And third genders emerged as a strong faction in the LGBT rights in India. The Government of India has introduced many welfare policies and schemes such as census, documentation, issuing of the citizenship ID Cards, issuing passports, social-economical development, and constitutional safeguards for the transgender people. They are also brought basic employment opportunities through MGNREGA in the 11th Five-year plan.
A divisional bench of Justice Sikri and Justice Radhakrishnan gave the judgment. However, Justice Sikri gave a separate opinion with some additional comments. He added that the idea of psychological sex should be emphasized over the idea of biological sex; which means that this judgment provided for the test of transgender based on ‘psychology’ of an individual rather than their biology.
The Court also gave following directions to State and the Central Governments:
1. Hijras, Eunuchs are to be treated as “third gender” to safeguard their rights under Part III of the Constitution of India, 1950.
2. The transgender persons have the right to decide their self-identified gender and the central and State Governments are directed to grant legal recognition of gender as male, female or third gender;
3. Transgender should be treated as socially and educationally backward classes and reservations should be extended to them in cases of admission in educational institutions and for public appointments.
4. Any insistence on SRS for declaring a person’s gender is illegal and immoral;
5. The Centre and State should frame various social welfare measures for the betterment of transgender including proper medical care to transgender in hospitals, operation of separate HIV Sero-surveillance Centre, creating public awareness to assimilate in the society, and address various psychological problems faced by the transgender.
Adding to the judgment, Justice Radhakrishnan attempted to distinguish the Gender identity from the sexual orientation of a person. He notes—****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 be born with bodies that incorporate both or certain aspects of both male and female physiology. Gender identity refers to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body. It refers to an individual’s self-identification as a man, woman, transgender, or other identified category.
On the other hand, Sexual orientation refers to an individual’s enduring physical, romantic, and/or emotional attraction to another person. Sexual orientation includes transgender and gender-variant people with heavy sexual orientation and their sexual orientation may or may not change during or after gender transmission, which also includes homo-sexuals, bisexuals, heterosexuals, asexuals, etc.
Gender identity and sexual orientation, as already indicated, are different concepts. Each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom and no one shall be forced to undergo medical procedures, including SRS, sterilization or hormonal therapy, as a requirement for legal recognition of their gender identity.
CRITICAL ANALYSIS OF THE JUDGMENT:
The Supreme Court of India, in this landmark judgment delivered on 15th April 2014 held that transgender people will be recognized as the third gender. The court upheld the constitutional rights of the transgender community by giving them the benefit of various social welfare schemes as well as reservation in public employment and educational sectors. Everyone has hailed the judgment for providing equal rights to transgender people who had been at the margins of society for centuries. But that’s not all. It has been six years and the judgment still isn’t free from the ambiguities and contradictions.
This judgment specifically declares the hijras as the third sex and gives trans-persons the right to choose and identify with whatever gender they want. This approach seems very reductive as the judgment tries to fit the hijra community in a particular category of gender; restricting them to not be able to identify with a gender of their choice. It is all quite contradictory as on one hand, it gives them the right to exercise and follow a self-identifiable gender identity but on the other hand, it limits who all can exercise that right.
The judgment does not take into account the various diverse groups that come under the umbrella term “transgender” and almost treats “transgender” as a homogenous category making the entire judgment redundant. It makes very little mention of Trans-men and doesn’t address their plight. The judges’ understanding of the term “transgender” only involves the male-to-female people, thus ostracizing a large number of trans-men and not taking into account their marginalized status. The judgment also goes as far as giving a rigid definition of what it means to be a transgender and uses problematic and transphobic language. It uses derogatory words such as “eunuch” and reeks of contempt for the transgender people.
This judgment sort of achieves the opposite of what it was supposed to; it imposes boundaries on a group of people whose identities can’t be defined through one restricted homogenized definition. The judges certainly failed to address the concerns raised by various activists. “As a result, this decision by SC will violate the rights of trans-people rather than respect and uplift long-persecuted communities.”
The Supreme Court particularly cites Articles 15(4) and 16(4), which permit the state to make special arrangements for the upliftment of socially and educationally backward classes. The judgment, however, doesn’t make it clear how this special provision can surmise that the state is obligated to take some concrete action for their upliftment and development so that the injustice meted out to them since time immemorial could be rectified.
On the other hand, the judgment consists of orders that are so exhaustive and unclear that it becomes almost impossible to hold anyone accountable “for failing to implement them.” The Supreme Court must take cognizance of the fact that its excessively broad order to take initiatives to help the transgender community is not capable of implementation. However, the Court doesn’t care much about whether its hazy orders are implemented; it only cares about taking an active part in and fashioning the political discourse; building a ‘strong narrative’ on various issues through the lens of limitations and boundaries.
Various people from within the community have also spoken against this judgment. The Supreme Court judgment should be told as a warning tale wherein relying excessively on the legal apparatus to receive a sense of belonging and citizenship rights should be advised against. One can only hope that transgender, hijra, and kothi communities will carry on with their fight, not settle for the breadcrumbs thrown at them and rise against the state apparatus.
- K.S. Radhakrishnan, J. In the Supreme Court of India Civil jurisdiction W/P (Civil) 400 of 2012 National Legal Services Authority, j u d g m e n t 2013.
- M. Michelraj, Historical Evolution of Transgender Community in India, Asian Review of Social Sciences, Vol. 4 No. 1, 2015
- CJ Briefing Paper, Implementation of the NALSA Decision, 2016
- Aniruddha Dutta, Contradictory Tendencies: The Supreme Court’s NALSA Judgment on Transgender Recognition and Rights, 2014
- Gayatri Reddy, with respect to Sex: Negotiating Hijra Identity in South India, 2005
- https://indiankanoon.org/doc/193543132/ (Body of original ruling)
*see DAVID VALENTINE, Imagining Transgender: Ethnography of a Category (2007)
**see M. Michelraj, Historical Evolution of Transgender Community in India, Asian Review of Social Sciences
(Vol. 4 No. 1, 2015)
****NALSA vs. Union of India (2014) through http://indiankanoon.org/doc/193543132/