Need to protect the third gender from discrimination

Sathyanarayana R[1]

Introduction

The gender discrimination towards transgenders (Hijras) is a clear violation of Article 14 of the Indian Constitution which enforces right to equality. The fact that they are treated as third gender itself can be considered as violative of Article 14 of the Indian Constitution. The state should take serious steps to ensure that they are treated alike in regard to employment, education and access to basic necessities of life. On 15th April, 2014 there was a landmark decision by the Supreme Court of India which declared transgender people to be a ‘third gender’ and held that the fundamental rights granted under the Constitution of India will be equally applicable to the transgender people and gave the right to self identification of their gender as male, female or third gender.

Hijras and transgendered persons were recognized as the third gender by the law in India. India, Nepal, Pakistan and Bangladesh have recognized them as the third gender, and provide an option on all official documents right from the education system and even in the workplace.[2] They have their own lifestyle, livelihoods, origins, customs and traditions, and they have craved a space for theme self in society. Hijras could be born with hermaphrodite genitals, male genitals or female genitals[3], and hijras who are born with male variations because of which they undergo ‘nirwana’[4] which means a ceremony when the penis, scrotum and testicles of hijras who are born with male variations are removed. Hijra Farsi is the secret language developed by them.

It is also called as koti. Nobody besides the Hijra community would understand the language they speak. It was created for the purpose of self-preservation during the British Raj. While literature shows that Hijras occupied a privileged position in ancient India, the British criminalised us and put us behind bars. This language was as a survival mechanism for Hijras.[5]

Definition

A layman’s point of view of a transgender means a person who is a combination of both male and female. Any matter of confusion regarding definition or the meaning of a term which is a subject of legal debate can be sorted out with the help of the apex court’s interpretation of the term in question. This is essentially required in the case of understanding the term ‘transgender’ because there exist various definitions to the term and many more interpretations than the number of definitions it has. One of the most noted meaning of ‘transgender’ is that “transgender people are neither completely female nor wholly male; a combination of female or male and neither female nor male.”[6] Transgender people may identify as heterosexual, homosexual, bisexual, pansexual, poly sexual, or asexual.[7]

According to the Supreme Court of India, “transgender is generally described as an umbrella term for persons whose gender identity, gender expression or behaviour does not conform to their biological sex.”[8] Though at the outset, it was said that any confusion to the term which is a matter of legal debate can be solved by resorting to the Court’s interpretation of the same, it seems like the broader definition of the term ‘transgender’ given by the SC has only resulted in making the term vague and ambiguous.

Synonyms and differences in meaning

The objective of this paper is not to provide with definitions or interpretations of the term ‘transgender’. However, before moving into the details of the legal issues that the third gender face, it is imperative to understand the various groups of persons who come under the broader meaning of transgender. Hijras are group of people in India who constitute a third gender category, considered by themselves and by others to be neither men nor women.[9] It is a South Asian term used for males who have physiological feminine gender identity. Hijras are the males who have physiological feminine gender identity where as in general Hijras are born with male physiology but very few born with inter sex variation.[10] Hijras are neither men nor female by virtue but they are like women with no female reproduction organ and menstruation.

Similarly, Hijras do not have reproductive organs like men or women. Some people are intersex which means they may have both gentilia just like a Hermaphrodite is their sex chromosomes might have an extra chromosome like XXX, XXY, XYX, XYY and numerous other combinations.[11] However the word ‘HIJRA’ in India is used to refer an individual who is transsexual or transgender. Apart from that, they are even called as Aravani, Aruvani,  kinnar, eunuch, kothi, jagappa or chaakka.[12]

Reformative steps

In Karnataka the Government introduced a pension scheme called “mythri” wherein transgenders with annual income less than Rs. 12,000 per annum in rural areas and Rs. 17,000 per annum in urban areas will be eligible for the scheme. They are required to submit relevant documents including a certificate from the Department of Health and Family Welfare to prove their gender. But the applicants are not entitled to any other benefits under the social security scheme.[13]

In Tamil Nadu a pension of RS 1000 is given to the transgender and people who are above 40 years and are living in poverty are eligible for the same. The Government announced yet another scheme for economic empowerment of transgenders wherein bank loans up to 15 lakh with 25% subsidy are provided for income generation activities by transgender self-help groups. Various economic activities such provision stores, rearing of milk animals, canteens, soap production units, napkin, milk products , plying auto rickshaws, and business activities related to cloth, coir, rice have been taken up by these self help groups. Under this scheme, 51 transgender SHGs have benefited with loans for various projects worth 2.20 crore with 25% subsidy of 55 lakh and 1.60 crore as bank loan.[14]

Odisha was the first state to implement and provide food grains, pension, health, education, and housing for transgender community, thus including them in the Below Poverty Line (BPL) category. The step has been taken to empower the transgender community.[15] They will be given a BPL card in which they can access social benefits under various government welfare programs.

Irrespective of the fact that there exist various such schemes as the ones above mentioned, only few transgenders are benefited and these welfare schemes do not address the plight of the rest of them. It is time that the respective governments of every state take up the responsibility to make it a point that these welfare schemes are made applicable to each and every transgender. Few of them are even scared to disclose their identity as a transgender.

Kerala had announced a transgender policy back in 2015, becoming the first state in India to do so. The policy ensures them equal access to social and economic opportunities, resources and services, the right to equal treatment under the law, right to live life without violence and equal right in all decision making bodies.[16] Though there were opportunities given for the transgender people in the Kochi metro, in one week, of the 21 transgenders employed, eight quit their job. This is because of non-availability of adequate lodging and conveyance facilities.[17] Andhra Chief Minister too has announced pension for transgender at an amount of Rs 1000 and a ration card and a house for each member in the community.[18]

NALSA v. Union of India: The reality v. the law

The judgment passed by the Supreme Court ensured that all the transgender people should be considered as a third gender and that they should be provided with all the benefits like the mainstream people. But, irrespective of fact that, they are still facing the same problem as earlier. In reality they are not provided with any jobs and past instances reveal that even though they are offered jobs, they eventually quit the jobs due to social discrimination and lack of social security in various other matters.

Though the welfare schemes are in existence, the reality is that only 4% of the transgender are getting that benefit, that too with the lot of shortcomings. The judgment has not been implemented with full force till date and the objectives behind the ruling of the Supreme Court becomes fulfilled only if transgenders are provided with adequate education facilities and job opportunities. It should be borne in mind that campus bias forces transgenders to drop out[19].

Most of the students who are from the transgenders drop out because they find it difficult and insulting to be amidst the people wherever they go. Not only in educational institutions even in the workplace some are forced to drop out and some they themselves drop out because of the problems they face.

Conclusion: Loopholes that need to be rectified

Right from the education system everything should be provided to them. People who want to undergo SRS (sex reassignment surgeries) should be given free or affordable surgeries and stets should be taken care to ensure that most of the hospitals provide facilities for such surgeries. Being a common law country, India should be at par with recognizing the rights of innocent civilians like the United States. Our country should learn from Oregon’s Transportation Commission which was the first institution to allow residents to identify as “non-binary”, a third gender option behind male or female and the Oregonians can select their gender as M, F or X as their gender on licenses and identification cards.[20]

The future challenges that lie in the case of rights of transgenders are the legal recognition in cases of adoption and marriage. Legal issues  related to transgender becoming surrogates, the legal issues connected with the same, legal recognition of marriages between transgenders etc are the future challenges that our legal system will have to face. As regards legal recognition of marriage between transgenders are concerned, a transgender person may be married to a person of the same sex.

That situation arises, for example, when one of the spouses in a heterosexual marriage comes out as transsexual and transitions within the marriage. If the couple chooses to stay together, as many do, the result is a legal marriage in which both spouses are male or female. Alternatively, in states that do not allow a transgender person to change his or her legal sex, some transgender people have been able to marry a person of the same sex. To all outward appearances and to the couple themselves, the marriage is a same-sex union.

In the eyes of the law, however, it is a different-sex marriage because technically speaking; the law continues to view the transgender spouse as a legal member of his or her birth sex even after sex-reassignment. The only way to overcome these issues is by giving transgenders proper freedom and equal liberties in all fields they deserve and there should be no discrimination between the genders as all of them should be treated equally before the law and the same is with the case of opportunities being provided to them.

[1] 5th semester BBALLB student at School of Legal Studies, REVA University, Bangalore

[2] Nikhil Thorat, 17 Things you should know about hijras, another caste in India, TOPYAPA, Sep 30, 2015, (Sep. 15, 2017, 2:23 P.M.), http://topyaps.com/things-to-know-about-hijras

[3] Sathya Narayana, The Scientific Causes behind the Birth of Hijra or Third Gender, SPEAKINGTREE, Aug 11, 2016, (Dec. 1, 2017, 8:19 P.M.), https://www.speakingtree.in/allslides/the-scientific-causes-behind-the-birth-of-hijra-or-third-gender

[4] Nikhil Thorat, 17 Things you should know about hijras, another caste in India, TOPYAPA, Sep 30, 2015, (Dec. 1, 2017, 1:11 P.M.), http://topyaps.com/things-to-know-about-hijras

[5] Anahita Mukherji, Hijra Farsi: Secret language knits community, THE TIMES OF INDIA, Oct 7, 2013, (Sep. 16, 2017, 10:36 P.M,), http://timesofindia.indiatimes.com/india/Hijra-Farsi-Secret-language-knits-community/articleshow/23618092.cms

[6] Jayshree Bajoria, Making Transgender Rights a Reality in India, HUMAN RIGHTS WATCH, July 25, 2017, (Sep. 14, 2017, 10:03 P.M.), https://www.hrw.org/news/2017/07/25/making-transgender-rights-reality-india

[7] Fatima Nuyab, What is the difference between Hijra and Transgender, QUORA, April 16, 2017, (Sep. 14, 2017, 9:19 P.M.), https://www.quora.com/What-is-the-difference-between-Hijra-and-Transgender#MoreAnswers

[8] Para 11 of NALSA v. UOI (2014) 5 SCC 438

[9] Serena Nanda, Neither Man Nor Woman: the Hijras of India, PRENTISS RIDDLE, Dec 19, 1991, (Sep. 25, 2017, 9:57 P.M.), http://prentissriddle.com/play/hijras.html

[10] Nikhil Thorat, 17 Things you should know about hijras, another caste in India, TOPYAPA, Sep 30, 2015, (Sep. 23, 2017, 9:30 A.M.), http://topyaps.com/things-to-know-about-hijras

[11] Safiya, What sexual organ does a transgender have, QUORA, Feb 18, 2016, (Sep. 25, 2017, 9:37 P.M.), https://www.quora.com/What-sexual-organ-does-a-transgender-have

[12] Nikhil Thorat, 17 Things you should know about hijras, another caste in India, TOPYAPA, Sep 30, 2015, (Sep. 14, 2017, 9:38 P.M.), http://topyaps.com/things-to-know-about-hijras

[13] Karnataka Government Launches Pension Scheme ‘Mythri’ For Transgender People, GAYLAXY EMPOWERING EXORESSION, Feb 22, 2014, (Sep. 27, 2017, 11:30 A.M.), http://www.gaylaxymag.com/latest-news/karnataka-government-launches-pension-scheme-mythri-for-transgender-people/#gs.ZsPcIdQ

[14] Transgenders to get Rs 1,000 monthly pension, THE TIMES OF INDIA, Aug 2, 2012, (Sep. 27, 2017, 8:39 P.M.), http://timesofindia.indiatimes.com/city/chennai/Transgenders-to-get-Rs-1000-monthly-pension/articleshow/15322613.cms

[15] This state is first in India to provide pension and food benefits to the transgender community, INDIA TODAY, June 6, 2016, (Sep. 26, 2017, 9:28 P.M.), http://indiatoday.intoday.in/education/story/bpl-status-to-transgenders/1/685370.html

[16] Nagpur Today, Kochi Metro hires transgender/ hijras, can Nagpur metro follow the example?, NAGPUR TODAY, May 13, 2017, (Sep. 17, 2017, 10:27 P.M.), http://www.nagpurtoday.in/kochi-metro-hires-transgender-hijras-can-nagpur-metro-follow-the-example/05131505

[17] Ramesh Babu, In one week, eight transgender employees quit working for kochi metro, HINDUSTAN TIMES, June 25, 2017,(September. 13, 2017, 10:30 P.M.), http://www.hindustantimes.com/india-news/in-one-week-eight-transgender-employees-quit-working-for-kochi-metro/story-XDp6xgnA2Y6dhaAYcs8abP.html

[18] Chief Minister promises pension, housing for transgenders, THE HANS INDIA, Sep 22, 2017,(Sep. 27, 2017, 8:27 P.M.), http://www.thehansindia.com/posts/index/Andhra-Pradesh/2017-09-22/Chief-Minister-promises-pension-housing-for-transgenders/328280

[19] Ambika Pandit, Campus bias forces transgenders to drop out, TIMES OF INDIA, June 8, 2017, (September. 13, 2017, 10:11 P.M.), http://timesofindia.indiatimes.com/city/delhi/campus-bias-forces-transgenders-to-drop-out/articleshow/59045435.cms

[20]Laurel Wamsley, Oregon Adds A New Gender Option To Its Driver’s Licenses: X, THE TWO-WAY, June 16, 2017, (October. 4, 2017, 7:48 P.M.), http://www.npr.org/sections/thetwo-way/2017/06/16/533207483/oregon-adds-a-new-gender-option-to-its-driver-s-licenses-x

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