Guest Post: Path to the recognition of the Third Gender

[This is a guest post by Manasi Bhushan and Gauri Nar]

Introduction

The Constitution of the world’s largest democratic country, India, believes in gender equality and non-discrimination. ‘Equality’ and ‘Justice’ as mentioned in the Preamble are the pillars on which the Indian Constitution rests. Article 14 and 15 of the Constitution being fundamental in nature guarantees equality before the law, equal protection of law and non-discrimination. As per the Census of 2011, India had a total population of 1.21 billion people out of which transgender persons were 4.88 lakh in number i.e. 3.34% of the total population. India, with time, has adopted the western culture however even in the 21st Century, in India gender incongruence is a taboo.

Transgender is an umbrella term that describes people whose gender identity or expression does not match the sex they acquired at birth. It is interesting to note that the existence of such persons is not emanated from recent history, rather the ancient Indian history and mythology recognized transgender persons. For instance, the androgynous composite of Shiva and Goddess Parvati is known as Ardhanarishvara which represents masculinity of Shiva blended with the femininity of Parvati. In Mahabharata, Shikhandi who was born with a female body but recognised herself as a man and later with the help of a Yaksha became a man. Sudyumna, a King was cursed by Shiva and Parvati to be gender fluid and transform from a man to a woman and was known as Ila. The term “transgender” refers to a person whose sex assigned at birth (i.e. the sex assigned by a physician at birth, usually based on external genitalia) does not match their gender identity (i.e. one’s psychological sense of their gender). Some people who are transgender will experience “gender dysphoria,” which refers to psychological distress that results from an incongruence between one’s sex assigned at birth and one’s gender identity. Though gender dysphoria often begins in childhood, some people may not experience it until after puberty or much later. Usually, transgenders face social stigma and are derecognized as persons because of which they are compelled to leave their homes for escaping restrictive families and seek support within their community. They often live in a ghetto-like existence in their own communities.

However, in the year 2014, Transgenders were socially recognized when the Hon’ble Supreme Court of India in the case titled as “National Legal Services Authority v. Union of India [(2014) 5 SCC 438]” gave transgenders an equal status by declaring them as “Third Gender” and granting them their constitutional rights.

Classification of Transgenders

Transgenders or eunuchs are generally addressed as ‘hijras’ or ‘chhakkas’ in India. They can be known by different names based upon different regions and communities, such as-

  1. Kinnar – synonymous for hijras and is usually used in the north of India and other parts including Maharashtra;
  2. Aravani – a regional term for transgenders and is used in Tamil Nadu wherein some of them like to be addressed as Thirunangi;
  3. Kothis – a heterogeneous group, because it refers to biological males showing varying degrees of being effeminate. They prefer to take the feminine role in same-sex relationships, though many kothis are bisexual. Some hijras identify as kothi as well, while not all kothis identify as hijra or even transgender.
  4. Shiv-Shakti – usually used in Andhra Pradesh wherein these are males who are particularly close to a goddess and who have feminine traits;
  5. Jogtas/Jogappas – found in Karnataka and are dedicated to and serve Goddess Renuka Devi.

Other categories of transgenders are Transexuals, genderqueer/non-binary gender which also include individuals identifying as moving between male or female (bigender) and some individuals who identify as beyond gender or genderless (agender) or simultaneously exhibiting multiple genders (pangender). There are also Transvestite or cross-dresser, drag kings and drag queens.

History of Sexual Crimes against Transgender in India

For decades transgenders have been suffering horribly and facing health issues relating to sexual violence. These include rape, stalking, sexual harassment, outraging the modesty, voyeurism, violence (physical, emotional and sexual). Such offences are committed from the childhood of transgender persons. 971 (44.7%) transgenders were reported facing 2,811 incidents of violence i.e. an average of three incidents per person between April and October 2015. The trans community has suffered immensely by being excluded from the definitions of sexual crimes. In a research conducted in different parts of India by a health resource centre ‘Swasti’, it was found that four in ten transgender people experience some sought of sexual abuse before the age of 18 and the trauma continues past their childhood. In most of the cases, the person to sexually violate a transgender is someone known to them, a client, partner or those for whom they are employed as sex workers. Majority of people in our society are transphobic, and therefore lack sympathy towards the community facing sexual violence on a large scale. The police and government officials are the ones imposing tremendous sexual violence on the transgender persons when they approach them for help. A transgender woman stated that the police chase away them (transgenders) whenever they see them, even if they are just sitting and having a chat, Police verbally abuse them and beat them. Another trans woman stated that the police takes rounds and arrests kinnara women for no fault of theirs, assault them and insert lathis into their bodies. Deepak Kumar, a social worker, told about one such incident, where 17 policemen allegedly had “forced sex” with a transgender woman at a police station.

In 2004, in Bangalore, a eunuch was at a public place dressed in female clothing who was gang-raped and forced to have oral and anal sex by a group of hooligans. He was later taken to a police station where he was stripped naked, handcuffed to the window, grossly abused and tortured merely because of his sexual identity. This was brought into light in the landmark judgment of Apex Court in the case titled as Naz Foundation vs. Govt. of NCT & Ors. [2010 CriLJ 94]. Hon’ble High Court of Madras even raised concern in the case titled as Jayalakshmi v. The State of Tamil Nadu [(2007) 4 MLJ 849], wherein a eunuch had committed suicide due to the harassment and torture at the hands of the police officers after he was arrested being accused of theft. In this case, evidence was produced before the court indicating that in police custody he was subjected to torture by a wooden stick being inserted into his anus and some police personnel forced him to have oral sex. This person immolated himself inside the police station and later succumbed to burn injuries. A compensation of Rupees Five Lakh was awarded to the family of the victim.

In 2015, a fact-finding team of activists from the Telangana Intersex Transgender Hijra Samiti found that more than 10 cases of attacks against transgender persons each month were reported in the State, including the murder of Pravallika, a hijra who was brutally attacked. During the interrogation, another hijra was picked up by the police and was humiliated, stripped and detained for four hours while dismissing her plea to be released as she was also HIV positive. Another instance in 2017 occurred in Hyderabad wherein a transgender woman was raped and was attacked with acid. She was the sole breadwinner for her family. A study by the National Human Rights Commission, India found out that 52% of the transgender community faced harassment by their school classmates and 15% from their teachers which resulted in their dropping out from school.

This was the Part I of the two-part series on Sexual Crimes against Transgenders. Stay tuned for the next post by the authors which will highlight the legal provisions for the protection of transgenders and judicial approach towards them.

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