Libertatem Magazine

Transgender: A Legal Myth

Contents of this Page

‘Gender’ is a term that is often used to refer to ways in which people act, interact, or feel about themselves, which are associated with boys/men and girls/women. The Indian Constitution, under Articles 14, 15, 16, 19 and 21, has stated not to discriminate between people and to treat everyone equally and further for this very reason itself every public office has privileges for both men and women which they can avail. However, there are some people whose minds and bodies disown their biological sex bodies. They are neither men nor women but someone in between them. They refer themselves as a transgender.

The contemporary term “transgender” arose in the mid-1990s from the grassroots community of gender-different people. In contemporary usage, transgender has become an “umbrella” term that is used to describe a wide range of identities and experiences, including but not limited to transsexual people; male and female cross-dressers (sometimes referred to as “transvestites,” “drag queens” or “drag kings”); intersexed individuals; and men and women, regardless of their sexual orientation, whose appearance or characteristics are perceived to be gender atypical. “Transgender” may also take in the persons who do not identify with the sex assigned at birth, which include Hijras/Eunuchs who describe themselves as “third gender” and do not identify themselves as either male or female. Hijras are not men by virtue of anatomy appearance and psychologically, they are also not women, though they appear to be like women with no female reproduction organ and no menstruation.

If we go deep into our history we find that hijras, eunuchs, kothis and the abstract idea of tritiyaprakrti has a prominent impression and find a place in Hindu mythology including the Vedic and Puranic literature. Religious texts also mention about the importance of third gender to offer blessings. However, during the British rule, a law was enacted to supervise the deeds of Hijras/Transgender community, called the Criminal Tribes Act, 1871, which deemed the entire community of Hijra persons as innately ‘criminal’ and ‘addicted to the systematic commission of non-bailable offences’. But the basic problem all over the world lies with the attribution of gender to such people who do not confirm to the natural sex assigned during birth and the rights that should be given to them by law.

These people have often been victim of abuse, both privately and publicly, and have been raising their voices for equal treatment. They are subjected to ridicule and mental agony and are treated as untouchables. They seek a legal declaration of their gender identity than the one assigned to them, male or female, at the time of birth and their prayer is that non-recognition of their gender identity violates Articles 14 and 21 of the Indian Constitution. The Indian Constitution has prohibited to discriminate on the basis of sex and since it has defined gender as only man and women, the eunuchs and hijras cannot effectively avail the benefits of the constitutional rights and other civil and human rights which are otherwise available to all. They have also been shunned away from public employment, educational facilities, proper health care, etc. On one hand, they are devoid of the Constitutional facilities but when it comes to crime they cannot escape the criminal liability since IPC has defined persons as “all human beings”.

Several countries, like Europe, France, Poland, Spain and Romania have given recognition to transgender and have also amended laws which allow a person to change their sex and amend their birth certificates to avail all government facilities. Not only such countries but the United Nations declarations and conventions such as UDHR, ICCPR, United Nations Convention against Torture and Other Cruel Inhuman and Degrading Treatment or Punishment (dated 24th January, 2008), the Yogyakarta principles and the report of UNDP on transsexuals have time and again insisted the need of proper legislation by the State for transgender but India has failed to provide with any legislation which recognizes the rights of transgender community. The Supreme Court itself has vehemently supported and stated in the National Legal Services Authority case that laws are yet to see light of the day.  And because these transgender communities do not find any medium of subsistence for their living they lead themselves in prostitution and other illegal work making them vulnerable to sexually transmitted diseases like HIV AIDS.  Needless to say that J. Sikri has specifically emphasized that recognition of transgender need not be restricted to hormonal treatment or surgical reassignment surgery. Non recognition of the identity of Hijras/Transgender in the various legislations denies them equal protection of laws and they face wide-spread discrimination.

In April 2014, the Supreme Court of India recognized transgender people as third gender in a landmark ruling. The Supreme Court while granting well deserved rights to those who state themselves as neither male nor female stated that “It is the right of every human being to choose their gender”. Orders were also given to the Government to provide the estimated two million transgender people in India with key amenities, education in line with other minorities and quotas in job. The Apex court also took the view that it is highly concerning that the transgender people are ostracized because of their gender identity. Even basic amenities such as treatment in hospitals are also denied to them and it is because of such predicaments that they were hitherto forced to choose either male or female gender in public spheres. The Supreme Court also stated that the transgendered are citizens of India and they must be provided with equal opportunity to grow. Justice KS Radhakrishnan said, “Recognition of transgender as third gender is not a social or medical issue but a human rights issue”.

It is interesting to note that after the above judgment of the Supreme Court, transgender community got their right to be recognized in society but a previous judgment by the Supreme Court itself prohibited gay sex and marriage and stated that it is illegal (Section 377, IPC), which puts the transgender people in a strange situation.

The life of a transgender is, therefore, still a legal myth. The ambiguity has not been cleared. Even legal rulings have contributed to give confusion and happiness at the same time. Hopefully in the future, to end all this ambiguity, a law that recognizes and lays down the rights and special amenities to be enjoyed by the transgender communities shall be passed. Until then the transgender people are left on their own to figure out how to deal with their lives.

About the Author