RIGHT TO DIGNITY: Transgenders celebrate the Supreme Court judgment that recognises them as the third gender
She’s dressed in a white silk sari emblazoned with a red zari border that matches the vermillion bindi streaking across her forehead. She holds on to his hand that curls over the end of the banister. Between her and this macho jeans-and-floral-T-shirt clad young man, peering out of gentle kohled eyes, is a little boy. “My angle (sic) and darling, full happy family,” reads the photo caption on her Facebook page.
The photo was uploaded on April 12, three days before the Supreme Court of India gave her the legal sanction to call herself Mr or Mrs or just as the “third gender”.
In the midst of the jargon and legalese of the April 15 judgment, the court momentarily softened to describe Radhika and Rohan’s (not their names) sexual orientation as an “enduring physical, romantic and/or emotional attraction to another person”. This, it said, was integral to the personality and one of the most basic aspects of self-determination, dignity and freedom.
The transgender or the hijra community has so far faced discrimination on all fronts — in education, employment and private life. Schools and colleges deny them admission, few give them employment and even hospitals are known to deny them admission. Not surprisingly, the court’s ruling ushers in far-reaching changes.
First and foremost, it gives the third sex the right to live with dignity. “There are several long-term relationships between hijras and their male partners — many have even adopted children — but when society itself looks down on the community, the male partner often tends to walk out,” says Ernest Noronha, one of the petitioners who identifies himself as a transsexual.
The court has also asked the government to give the community quotas in education and employment — as granted to other sections.
“Employment will be a big game changer,” Noronha says. “Nobody likes to beg or engage in sex work, but who will give them jobs?” he asks. Article 16 of the Constitution clearly says no to discrimination in matters of employment or public appointments.
Change is already in the air. On Thursday, the Madras High Court ordered the reinstatement of a Tamil Nadu policewoman who was sacked last year after a medical examination report had declared her a transsexual. Setting aside the termination order, Justice S. Nagamuthu directed the police to issue the consequential order within six weeks permitting her to join duty as a Grade II constable (woman) with continuity of service.
“The petitioner was born a female, recognised by society as a female, and she chose to identity herself as a female for all purposes,” said the judge. “Therefore, I hold that she is a female in legal parlance and thus she is eligible for appointment as a woman police constable.”
The Supreme Court has also made it clear that a person’s sex is the “deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth”. The Supreme Court clearly spelt out that “nobody should be forced to undergo medical procedures including SRS (sex reassignment surgery), sterilisation or hormonal therapy, as a legal requirement for their gender.”
The American Psychological Association defines the term transgender as an umbrella term for those whose gender identity or gender expression or behaviour does not conform to that typically associated with the sex assigned at birth. But not everyone whose appearance is gender non-conforming will identify as a transgender, it clarifies.
The transgenders that the Supreme Court made specific reference to were eunuchs or hijras — biological males who have rejected their “masculine” identity to identify themselves as women, or “not-men” or “in between man and woman” or “neither man nor woman”.
Dr I.S. Gilada, who has worked with the community in Mumbai’s red light areas, points out that most hijras are transsexuals who have undergone castration by the community. “The process of castration is gory and not everybody survives it. Those who do are said to have attained nirvana or rebirth in the female form that took over from the male.”
The court has given the central and state governments nine months to formulate welfare schemes and extend reservation in educational institutions and public appointments; create public awareness to make them feel part and parcel of social life; and operate separate HIV clinics and, very importantly, public toilets.
Right now, even public amenities as basic as toilets often prove out of reach for eunuchs. Ankur, a transgender who holds a diploma in Indian classical music, says she quit using public toilets after being eyed hostilely by both men and women, and insulted by those guarding the washrooms. Sexual assaults on hijras in toilets are also common.
Gay rights activists, however, stress that it will be a long struggle before eunuchs are treated as equals. “How many hijras are educated?” asks Swagat Shah, a gay rights activist in Gujarat. “The Supreme Court judgment is a positive step but I don’t see acceptance by society anytime soon,” he adds.
Indeed, administrations continue to pose hurdles in the way of their rights. When Ankur went to get a new Aadhar card — identifying her as a “third gender” — after the Supreme Court judgment, she was asked to get a letter from the local legislator, as authorities said they were unaware of the judgment.
But the court’s words are unequivocal. “Non-recognition of the identity of hijras/transgenders in the various legislation denies them equal protection of law and they face widespread discrimination,” the two-judge bench headed by Justice K.S. Radhakrishnan said, while clarifying that transgender rights had already been safeguarded by the Indian Constitution, which prohibits discrimination on the basis of caste, creed, sex, place and residence of birth.
It will be a while before the hijra community finds its place in society. But the community has already undergone a long winded journey — from the time the British lumped them together with “criminal tribes” through the Criminal Tribes Act, 1871. People described as “innate criminals addicted to the systematic commission of non-bailable offences” are finding their own labels — and are happy with them.