Taking Transgender Rights Seriously: Making Authentic Lives Possible

TAKING TRANSGENDER RIGHTS SERIOUSLY: MAKING AUTHENTIC LIVES POSSIBLE

Introduction Transgender is generally described as an umbrella term for persons whose gender identity, gender expression or behavior does not conform to their biological sex. Transgender is a community encompasses eunuchs, Kothis, Aravanis, Jogappas, and Shiv-shaktis etc. In 19 century B.C. eunuchs existed. Transgender also takes in people who do not identify with their sex assigned at birth, and they do not identify as either male or female.1 Trans which means that someone whose gender differs from the one they were given when they were born2 and Gender is basically having a title of a male or a female, but the transgender sometimes they castigate themselves into male or female and sometimes they feel like they do not deem fit in either of the two. They do not have permanent houses and thus most of them lives in communes or outskirts of the society. They become subject to public humiliation but mostly they are embarrassed by police officials than any other strata of society. Still they possess a very strong social structure.

Indian context Transgender in India commonly known as the Hijras are one of the hardly researched, ill-treated, snubbed, and shunned groups in Indian Society. Also, Indian society is tolerant when the question arises for diverse sexual behaviors or sexual identities and this is prima facie evident from our mythologies and ancient scripts like kamasutra. These communities progressed and formed a distinctive subculture within the Indian society. Basically, why each and every individual is to be differentiated as a male or a female; this is this is a big mental barrier of the Indian culture that if an individual is a male then he must possess the qualities like strong, tough, burly and authoritative And, if as a girl than she should be coy, polite, take care of her family and so on and in this process sometimes transgender realize their attraction towards the other sex that is different from the one they biologically are. In this course they have to face a lot of problem as even their Parents and siblings do not understand why this child cannot be same as

1 Supreme court of India

2http://www.belongto.org/

1 others children. Nor does the child know why, when he looks like his sister, he wants to be like his brother or the other way round. Acceptance is repudiated and the child faces prohibition even at home.

Evolution of transgender community The historical background of transgender was completely different from the present scenario. They played a prominent role in the royal courts of Islamic era and eminently in Mughal rule in medieval India. They established to customary positions as administrators, advisors as well as guardians of Harems. Transgender were dexterous, clever, faithful and true. They also had free access to all spaces and all strata of population, thereby played a crucial role in politics in Mughal era. These people were given superior positions as in guarding holy places of Mecca and Medina the person of assurance. Their status debilitated as the Criminal Tribes Act,18713 passed which expected the entire Hijra community as “criminals” and became a systematic commission for ‘non bailable offences’. Further section 377 of the Indian penal code caused the further injury which was exploited as there was a penchant in British period to arrest and initiate proceedings under sec 377 merely on suspition.

Some success However, in the path-finding judgment of the honorable supreme court of India by a division bench of A.K Sikri and K.S. Radhakrishnan in National Legal Service Authority V. Union of India and Ors4 recognize third gender with male and female and the ratio being “recognition of Transgender as a third gender is not a social or medical issue but a human right issue”.

The term Transgender is not limited to the people whose genitals homogenize but it is a term used as a whole their Gender, Expression, Behavior and Identity differs from the expected norms from their birth sex.Some of them are segregated as transgender female, transgender male, female to male (FTM) and male to female (MTF). It also incorporates gender queer people; this category feels that they belongs to either both the genders or neither of them. Cross-dressers; are

3 Asian Review of Social Sciences ISSN: 2249-6319 Vol. 4 No. 1, 2015, pp. 17-19

4 [Writ Petition (Civil) No.400 of 2012(NALSA)]

2 the people who simply wears the clothes of others. Each and every individual has fundamental rights may it be a boy, girl or the third gender; these are the rights which an individual can claim from the day when his/her existence is assumed in the world. Also it can be enforced in the court of law if these rights are denied or applied to anyone with prejudice.

Legal recognition It is not only a point of giving them equal position in the society but most importantly the acceptance by the society is a much needed step. So further it can be derived from the above statement that they cannot be discriminated on the grounds of gender as it is violative of Article 14, article 15, article 16, and article 215. The court also safe-guard one’s gender expression invoked by Article 19 (1) (a) interpreted as there can be no restriction on one’s personal dressing style or appearance. So, the court finally held that freedom to express one’s chosen gender includes gender identity through various ways of speech, mannerism, clothing and expression etc.

Article 14 and transgender I found some of the particular reasons fascinated me firstly unrecognized identity which results especially in areas of healthcare employment and educationalso they face huge discrimination in access to public places like malls, cinemas etc. further access to public toilets is also a problem which they face quite often. Since, hijras are not provided with separate toilets in public places so they have to use male toilets where there are many a times being assaulted and sexually exploited. Now article 15 and 16 the court adjudged that “both gender and biological attributes constitute distinct components of sex”6 also it was being clarified that gender attributes includes one’s self image and biological character includes sexual features, genitals and chromosomes. When the literal interpretation is done with article 14 and 15 is ‘The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India’ and The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.7 From the above

5 K.S. Radhakrishnancommentry

6judis.nic.in/supremecourt

7kenyalawblog/supreme-court-of-india-transgender-as-third-gender/

3 statement the expression used is “sex” and it is not just restricted to the biological sex but also encompasses people who do not consider them either of the two. When article 21 is analyzed a basic case law was unearthed of Francis Coralie Mullin V. Administrator, Union Territory of Delhi adhered that the essential duty of our constitution is right to dignity and culture which seeks full development and evolution of persons and incorporates individuals to express it in diverse forms, moving freely and merging with fellow human beings.

So, from the above provisions of the constitution it can be inferred that in Article 14 the expression used is “person” and Article 15 and Article 16 used expression “citizen” and “sex” and in Article 19 the expression used is “citizen”. In Article 21 term used is “person”. All these expressions dealt above referred are very much impartial and open-minded which distinctly for human beings. This concept covers Hijras/Eunuchs who are not limited to male or female gender.

Despite providing them with legal rights and also with some special rights this community faces stigma, discrimination and being slurred from the society the result being they are left with fewer opportunities as compared to others. They are hardly educated as their presence is hardly welcomed by the society and therefore are not fortunate enough to receive proper schooling. Even if they are admitted in an educational institution they are bullied and shunned every day and are asked to leave the school or force them to drop their own. It becomes the major reason they take up sex work and begging as a source of livelihood.

In the International Sphere

An important event occurred in 1994.The United Nations human rights council acknowledges LGBT rights. The United Nation Human Right committee in its landmark judgment in the case Toonen V. Australia8, decided that “sodomy laws” laws criminalizing homosexual consensual conduct violated standards of equality and privacy and the status protected against discrimination on “sexual orientation” by the International Covenant on Civil and Political Rights. Debates of

8http://www.cnsnews.com/ForeignBureaus/Archive/200405/FOR20040506b.html, retrieved November 12, 2004.

4 sexual orientation reached new pace and gravity in 2003 and 2004 at the annual meeting of the United Nations commission of Human Rights. In around 2003 Brazil established a resolution on “Human Rights and Sexual Orientation” which expressed their deep concern over the issue of “violation of human rights all over the world against persons on the grounds of equality.Many countries have legitimize same sex orientation several advanced and liberal nations recognized (LGBT) rights Lesbian Gay Bisexual Transgender to encompass legal, human, political and civil rights. Multiple countries have even recognized same sex marriages mainly in Brazil, England, Canada, and France, Some states in USA, Sweden, Spain, and Africa. With the recognition of these rights they are becoming advance with respect to the time as LGBT rights incorporates recognition by government of same sex relationships, adoption and parenting, civil unions and marriage. Also some special legislation were included such as employment, housing, anti- bulling, hate crime laws and many more in this respect.

Movements and Moral Panics9 In the late fifteen century a virtual growth have been seen worldwide in the general public for association, collectivity and a struggle for sexuality, Gender Rights and for sexual orientation . In Around 1980’s-1990’s the democratic government spread as a dictatorial regime in Europe, Africa, America and civil society asserted itself as the activists for sexual orientation and rights and thus the model organization proliferated as well. In South Africa these communities identified as gay, lesbian and transgender they learn from work and with the support of the courageous people the issue also included education in the anti-apartheid movement. Meanwhile the issues relating to women atrocities and health ailments were also raised. With this the burning issue of HIV/AIDS captured the headlines of the health policy debates.

The contemporary relevance

The third gender in India emerged a strong section in the LGBT rights. The Indian Government acquainted with a large number of schemes, welfare policies, documentation, issuing of passports, identity cards and other welfare policies for social, economic and constitutional safeguard for the 9Anatomy of a Backlash: Sexuality and the “Cultural” War on Human Rights By Scott Long

5 transgender people. The major step initiated in the 11th five year plan the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) which encouraged employment opportunities for transgender people. The National Urban Livelihood Mission10 for housing and urban poverty alleviation. To prevent human rights violation police, housing, political, social transformations were introduced. Despite all the bold rulings the harassment and prejudice11 still prevails although transgender community is considered to backward class and they are entitled for certain privileges in education and jobs still it becomes the need of the hour to start focusing on implementation so the benefit which is their right and it should reach them.

Action required for potential development of Transgender Community

There is a serious need to implement 2014, the ruling of Supreme Court in letter and spirit. Though the ruling of the Supreme Court was out since two years from now, the social blot still continues. The execution of this historic ruling was not in a clear picture. The marginalization and intimidation still prevails. For a very long time transgender community is deprived12 of education. Now with the judgment of the Supreme Court it is an inception for the transgender. More than anything it is the willingness of this section to study hard and achieve new heights. Also, a need for better healthcare prerequisites as these communities are prone to detrimental areas as they are exposed to vulnerable diseases. There is a need for separate HIV surveillance as they are majorly involved in various sex acts under such unhygienic conditions it becomes a paramount issue to educate them about the various serious health issues. Need for comprehensive and holistic care, since the transgender have been harassed publically, socially, privately many of them live under incessant depression and thus resort to drugs and other illegal practices. There is a vigorous need for councelling them socially and mentally as they are being deprived of their legal rights for so long in India. They were allowed to vote in 1994; a few political leaders like Kamala Jan a transgender of Katini(M.P),1999, Madhukinnar a transgender mayor of Rigarh(Chhatisgarh),2000.

10nrega.nic.in/netnrega/home.aspx

11http://yir.co.in/wp-content/uploads/2015/12/mohd._Rafeek.pdf

12The Rights, Vol-1: Issue-II, 10, December, 2015 ISSN: 2454-9096 (online)

6 But due to lack of education they did not able to give the support which they can and also which was the much needed change.

Suggestions: 1. As the citizen of the country each and every individual has right to vote so what can be a reason for denying the voting rights to transgender community. 2. They should be encouraged and given status at par with the normal people in the society. Encouraging them by providing easy loans, reservations in government jobs, opportunities to study in reputed institutions. 3. They should be given opportunity to work and earn respectable money and to refrain from the work of prostitutes. 4. All the people as a society should treat them as normal human beings for the upliftment of their class.

Conclusion The concept of humanity in general needs to become more tolerant of diversity. May it be majorities or minorities they should view each other with dignity and respect. Though, the transgender communities were given a very high status in Mughal period and faced a lot many obstacles in British colonial era. But, irrespective of the past the future is much brighter for them as the schemes and policies executed by the officials shows us the path of a refulgent future. The government should eradicate the stigma and human rights violation for the enhancement of transgender community. Despite the inroads made split of sex from gender expressions. However, we haven’t succeeded in liberating gender identity from sex. If these all practices are incorporated in day to day life then it might proliferate transgender in India as well.

References:

7 1. http://www.thehindu.com/opinion/lead/the-wrongness-ofdeference/article5463126.ece. 2. The reversal on Gay Rights in India by T. S. SathyanarayanaRao, K. S. Jacob1 3. Departments of Psychiatry, JSS Medical College, Mysore, Karnataka, 1Christian Medical College, Vellore, Tamil Nadu, India 4. International Journal of Social Science and Humanity, Vol. 5, No. 9, September 2015Problems Faced by Hijras (Male to Female Transgenders) in Mumbai with Reference to Their Health and Harassment by the Police AnithaChettiar 5. http://kenyalaw.org/kenyalawblog/supreme-court-of-india-transgender-as-third-gender/ 6. http://www.nytimes.com/2014/04/26/opinion/transgender-rights-in-india.html?_r=0 7. http://www.thehindu.com/opinion/lead/the-third-genders-right-to- dignity/article3474004.ece 8. http://www.lawyerscollective.org/updates/supreme-court-recognises-the-right-to- determine-and-express-ones-gender-grants-legal-status-to-third-gender.html