A analysis on thirds gender rights
This article was written by Pranav Mundra a student of Tamil Nadu National law school
Introduction
Third gender a word less used, less respected and less acceptable to the society at large. It describes neither individuals who do not fall in neither of the two more known categories i.e. man nor women. The members of this world has deep rooted history and in the Indian culture and the most shocking part that they were treated with respected. In the ancient text and write from the beginning of the human civilisation we find evidences and proof of third gender. In the most famous epics of the Mahabharata and the Ramayana we find its existence. A good example to site is when lord ram was leaving to his 14 years existence he asked all the men and women to return to the city because they also want to go with lord ram. Among them there were few people who were eunuchs who did not follow lord ram order to go back and started crying .Lord Ram was impressed by their devotion and sanctioned them with powers to bless powers on auspicious occasions. This continues to the present day context. In the era of mughals and the Afghans in the 16th and the 17th century, eunuch were used and considered as servants and guards.[1]
Lets define some terms to better understand them in a better way:
Eunuch: A person who is born male but is emasculated or castrated. If castration takes place at an early age, as is often the case, it can have major hormonal consequences. Eunuch can also refer to an intersex person whose genitals are ambiguously male-like at birth.
Hijra: The Persian word is loosely translated as eunuch in English, but unlike eunuchs, not all hijras are necessarily castrated. According to the apex court judgement, hijras are biological males who reject their masculine identity and identify either as women, or “not-men”, or “in-between man and woman” or “neither man nor woman”.
Kinnar: The term for hijras in north India. In other parts of India, such as Maharashtra, the term kinnar is being used more recently by the better-educated hijras to refer to them
Aravani: The term for hijras in Tamil Nadu. They identify themselves as women trapped in male bodies, although many aravanis would prefer to be called Thirunangi.
Their main fall or their miserable fall started from the 18th century era when British come into India. They find those people as Obscene and Offensive and created them with cruelty. The extend of discrimination was of that nature that they passed a law, criminal tribes Act of 1871, classifying the entire community as criminals. Unnecessary and false allegations were put on them and put behind the bars there were also no provisions for their bail and release this resulted in long term imprisonment for them with a worse condition at the jail. .after the independence in the year 1949, the law was repealed but the mindset has already been drawn. Mistrust and bad behaviour continued even after the law was repealed. Even in the present date they remain socially excluded disowned by their families in their childhood living on fringes of society and basically harassed by the public. [2] The transgender on the every sphere of their life suffers from discrimination. Be it the field of education, Healthcare and employment. They are treated with the least manners subject to slangs, and even physical abuses. Even today they are not considered a part of the society .the worst part of the this hell is they are disowned by their own families .families are considered as the strongest support even when families disown these people lose the reason to live .they mere struggle, live in slums and harassed by the public .Transgender had no means to survive, they survive by singing and dancing at weddings or celebrate birthdays of new young ones mostly seen in high profile houses. if that doesn’t work out they resort the most ugliest form of earning bread often resort to obscene postures and moved to the trap of prostitution and begging . This does not end here they face various discrimination in public spaces in cinema, shops, restaurants .people often see them as a nuisance to the society. They face others serious problem of health and housing. In a numerous number of cases observed doctors often refused to treat them posing a serious threat to their life and health. Room tenant also refuse to give them room, public toilets is also not accessible to them. This cause for a serious threat .since they are not allowed to use public toilets they have to use male toilets where they are subject to harassment and sexual abuse. [3]
It is generally understood that law protects each and every person irrespective of sex, caste, religion. But when it comes to Trans gender and that too a history so painful and full of struggle. The law and judiciary were too late to react to it. It was on the 15th of the April 2014 a landmark decision of the NATIONAL LEGAL SERVICE AUTHORITY V. UNION OF INIDIA finally recognised the rights of the transgender in the eyes of the Law. One of the main base which was taken was Article 14 of the Indian constitution. Article 14 of the Indian constitution states that “The state shall not deny to any person equality before the law or the equal protection of the law within the territory of India” it was interpreted that Article 14 does not restrict itself only to binary terms ,it can be used for third gender to and includes equality before the law . The court further interpreted article 15 in the light of that the state shall not discriminate against any citizens on the grounds of sex with regard to access to the shops and restaurants of public nature. The court interpreted article 14 and article 15 together. Article 16 states that there shall be quality of opportunities for all the citizens in matters relating to employment to any office .Gender identity is at the core of one’s personal identity. Therefore it will have to be protected under Article19.The SC also went on to that self determination of gender is an integral part of personal autonomy & self expression falling within Article 21 of the Indian Constitution. Not only the court restricted itself to the Indian constitution but also referred to the universal declaration of the human rights, the ICCPR of 1966 and the ICESC of 1966 itself . the court made it very clear that the hijaras , and the Eunchs apart from the binary gender are to be treated as a “ third gender” for the purpose of safeguarding their rights under part III of our constitution and the laws made by the parliament and the state legislature. It was also decided that their self identified gender is also upheld and the center and state government are directed to grant legal recognition of their gender identity such as male , female or as third gender .
We direct the Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments. Centre and State Governments are directed to operate separate HIV Sero-survellance Centres since Hijras/ Transgenders face several sexual health issues. Centre and State Governments should seriously address the problems being faced by Hijras/Transgender such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence for SRS for declaring one’s gender is immoral and illegal. Centre and State Governments should take proper measures to provide medical care to TGs in the hospitals and also provide them separate public toilets and other facilities. Centre and State Governments should also take steps for framing various social welfare schemes for their betterment. Centre and State Governments should take steps to create public awareness so that TGs will feel that they are also part and parcel of the social life and be not treated as untouchables. Centre and the State Governments should also take measures to regain their respect and place in the society which once they enjoyed in our cultural and social life. It was one of the major landmark decisions that changed the way we as a society used to look at a third gender. So afterwards there was rapid development in this regard, under the ministry of social justice and the employment a committee called the expert committee sat with the aim to conduct a study on in depth study of the problems that are faced with the transgender person in different states. For example like in the state of Tamil Nadu there are various welfare boards for Tran’s gender like Aravani Welfare Board. In the state of Kolkata there is a NGO which is set up which studies the problem faced by the transgender in urban areas and healthcare, Problems faced by them. And the social discrimination faced by them. A report by the united nation development programme in the year 2000 indicates that they suffer from large percentage of HIV prevalence and up to 41 % are suffering from this major and dangerous disease.[4] It just not in India that there are these types of set ups which protects the LGBT. The outside UN frame work. Like the amnesty international and the American civil liberties union . The rights of transgender people like their own identity & access to health, education, work , housing & other rights are being increasingly widely recognised after the court’s decision to legalise third gender. The third genders are enjoying more civil rights being counted in census. Option to be displayed as 3rd gender on passports & other freedoms. Another major issue which relates to transgender is the law itself .one side of the coin lies the that the LGBT are now legally recognised and protected under the constitution but at the other side of the lies the punishment for breaking the law if they have consensual gay sex as per section 377 of the IPC which states that a same sex relationship is an unnatural offence and punishable by a 10 years jail term. Let’s look into different countries perspective about the 3rd gender rights:
1: NEPAL: In its famous judgement of Sunil babu pant V. ors which held in ruling against gender discrimination and recognized the existence of the third gender. Nepal was the first country to achieve this feat and also they provided with full fundamental right as provided in the part 3 of the constitution.
2: New Zealand: New Zealand too gave the 3rd gender their right and introduced the word undetermined on their passport in 2012 to recognize their right.
3: Germany: In the whole of Europe Germany achieved this feat officially recognised a 3rd gender category. According to act 22, Section 3 of the German civil status act says that if child can be assigned to neither the female nor male sex then the child has to be named without a specification.
4: Bangladesh: In Bangladesh they have the right to vote since 2009 but in Nov 2013 the gov. Announced the recognition of hijra as 3rd gender in all passports and documents
5 : Pakistan : our neighbour Pakistan has a too had a bad history .some Pakistan local police had allegedly attacked , robbed and raped .there were around 8 hijras who suffered . this lead to a petition been filed in the famous Dr. Mohammad Aslam Khaki and Ans. V. Senior superintend of police Rawalpindi and ors decided on the 22nd march .the judgement recognised the rights of eunuchs as the citizens of the country and subject to constitution of the Islamic republic of Pakistan ,1993 their rights obligation including rights to life .
Conclusion
Rights need to be given at any cost and there seems no reason why a transgender should not be denied human rights which includes include rights of life & liberty with dignity, right to privacy and freedom of expression, rights to education and empowerment, right against violence, right against exploitation, discrimination. Constitution has fulfilled its duty of providing rights to transgender. Now its time for us to recognize this & to extend & interpret the constitution in such a manner to ensue dignified life of 3rd gender people. If all goes according to plan they will no longer be forced into prostitution and some hijras should be off the streets soon.
Suggestions
Since there is high HIV prevalence it is necessary to take emergent steps to improve their sexual health, mental health and also address the issue of social exclusion. Take all necessary legislation administration other measures to ensure that nobody is irreversibly altered by medical procedures in an attempt to impose a gender identity without the full, free & informed consent. The state must construct special public toilets & launch dedicated department to look into their welfare. further As long as S.S.377 of the IPC (criminalization of consensual gay sex )stays on the books discrimination& violence based on sexual orientation and gender identity will remain a threat. The law need to be repealed. Immediate actions are required to implement third gender specific social welfare schemes ,some actions need to be taken on a long term basis changing the negative attitude of the general public and increasing accurate knowledge about third gender communities. The required changes need to reflected in policies and laws, attitude of government, general public.
[1] http://blog.ipleaders.in/the-third-gender-and-the-indian-law-a-brief-history/
[2] Sonajoba, Human rights principles,Practices and Abuses,(New Delhi:Osmons Publications,1994)
[3] Thanilmaran,V.T,Human rights in Third World perspective,New Delhi:Har Anand Publicatio,1992
[4] ttp://www.undp.org/content/undp/en/home/librarypage/hiv-aids/discussion-paper-on-transgender-health—human-rights/
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