New Delhi, April 15: The Supreme Court today accorded legal recognition to transgenders, commonly known as hijras, as a “third gender” and ruled they were entitled to all the fundamental rights, reservation in jobs and education, and separate public toilets.
“Transgender” refers to those whose gender identity (self-identification as man or woman or neither or both) does not match the gender assigned to them by others based on their physical attributes. It does not per se refer to sexual preferences or practices.
The judgment therefore has no bearing on the penal code’s Section 377, which criminalises gay sex. Its key implications for the country’s estimated 19 lakh transgenders are:
Governments must treat transgenders as a socially and educationally backward class and reserve jobs and college seats for them so that the “injustice (of) centuries could be remedied”.
They will be allowed access to all public places and have their separate toilets, in the absence of which “they have to use male toilets where they are prone to sexual assault and harassment”.
Any transgender denied any of these rights or benefits can approach the courts for redress and punishment to the offenders for contempt of court.
Today’s order applies only to those born with psychological leanings that conform to the definition of “transgender”. The beneficiaries include those who have undergone or sought sex-change operations, as well as others content with merely cross-dressing.
The bench of Justices K.S. Radhakrishnan and A.K. Sikri clarified that the benefits they spelt out today did not extend to lesbians, bisexuals or gay people.
However, it suggested that the Centre “repeal criminal and other legal provisions that prohibit… consensual sexual activity among people of the same sex who are over the age of consent”.
Another apex court bench, which had upheld the criminality of gay sex last December, too had said the government could change the law. But the political class has played safe, hoping the courts would do what the parties lack the stomach to do.
The court emphasised that transgenders need not furnish any form of SRS (sexual reconstruction surgery) certificates to enjoy their social benefits, pre-empting any move by governments to deny these to them in the absence of such documents. Not all transgenders seek surgery, anyway, because some consider themselves the third gender solely on the basis of their psychological orientation.
The court did not specify how a transgender’s sexual identity would be established, leaving the nitty-gritty to be worked out later.
The order came on a petition moved by the National Legal Services Authority, a statutory body offering legal aid to the underprivileged, against the discrimination faced by transgenders.
The court ruled that such discrimination violates Articles 14 (equality before law), 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth), 16 (equality of opportunity in matters of public employment), 19 (freedom of speech and expression) and 21 (right to life and liberty, which includes right to live with dignity).
“Sexual assault, including molestation, rape, forced anal and oral sex, gang rape and stripping, is being committed (on transgenders) with impunity,” the court said.
It rued the “unimaginable” discrimination the community faces in “the field of employment, education, health care, etc”.
The bench said that society needed to change its attitude towards people “whose mind and body disown their biological sex”.
“Our society often ridicules and abuses the transgender community and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are treated as untouchables, forgetting that the moral failure lies in society’s unwillingness to embrace different gender identities and expressions, a mindset which we have to change.”
Referring to various religious texts, the court said that historically, transgenders played a prominent role in Indian society but the situation changed “drastically” when the Raj virtually declared them criminals.
The bench directed the Centre, states and Union territories to ensure compliance with its order and provide transgenders with special welfare schemes and health care. It asked the Centre and states to operate separate HIV sero-surveillance centres since transgenders face several sexual health issues.
Gender and identity
Explaining the “third gender” ruling, the court ruled that gender and biological attributes constitute distinct components of sex.
“Biological characteristics include genitals, chromosomes and secondary sexual features, but gender attributes include one’s self-image, the deep psychological or emotional sense of sexual identity and character,” it said.
“The discrimination on the ground of ‘sex’ under Articles 15 and 16, therefore, includes discrimination on the ground of gender identity…. (It) is not just limited to biological sex of male or female.”
Freedom of expression, “includes the freedom to express one’s chosen gender identity by way of expression, speech, mannerism, clothing, etc”, the court said.
“Gender identity lies at the core of one’s personal identity… and, therefore, (must) be protected…. State cannot prohibit, restrict or interfere with a transgender’s expression of that inherent personality. We, therefore, hold that values of privacy, self-identity, autonomy and personal integrity are fundamental rights.”
Who are transgenders?
Transgenders are people whose gender identity, gender expression or behaviour does not conform with their biological sex. The term covers persons with ambiguous genitalia
What is the cause of such differences of sex development?
Biochemical imbalances, such as the lack of certain enzymes or hormones, during development can lead to differences of sex development that are present at birth, although, in some people, they may not be recognised until they approach puberty
How do differences of sex development manifest themselves?
It depends on which specific chromosomes, hormones, or enzymes are involved. Among the most common manifestations are conditions in which a child has external female genitalia but also testes and predominantly male hormones, or external male genitalia but ovarian tissues and predominantly female hormones. Some people may also be born with both ovarian and testicular tissues — although, doctors say, this is relatively uncommon
Is there a treatment for such conditions?
Subhash Wangnoo, a senior endocrinologist, says: “If a child has been reared as a girl, we surgically remove the testes and prescribe female hormones to maintain external features. If a child has been reared as a male, we remove the ovaries and prescribe male hormones”
Is there an ideal age when such conditions can be treated?
As early as possible. “Ideally before five years of age — many cases can be managed through a combination of hormone treatment and surgery,” Wangnoo said. But in many cases the condition is recognised only when the child is aged between 10 and 15
Can medical tests help explain why transgenders may show male or female behaviour?
Sexual hormones are among the factors that govern behaviour. The absolute values of the hormones change with age. An adult female with greater than 200 nanograms of testosterone could begin to display male-pattern behaviour, said Wangnoo, while a male with more than 30 micrograms of estradiol is likely to show female-pattern behaviour. In many people, he said, these hormones can rise to much higher levels than these threshold figures
What is the population of transgenders in India?
Based on a 2011 survey, Salvation of Oppressed Eunuchs, an NGO, has estimated that India has around 19 lakh transgenders. Its chairperson Piyush Saxena pointed to a high proportion of transgenders in certain pockets of Andhra Pradesh and Tamil Nadu. “Reasons for this are unknown,” Saxena said
A TIME WITH SOCIAL SPACE
Transgenders in religious and cultural beliefs
Shiva: The lord has a hermaphrodite form called Ardhanarisvara, one half being Shiva and the other Parvati. According to the Kurma Purana, when Shiva evolved of Lord Brahma’s anger at the beginning of Creation, he appeared in a fierce half-male, half-female form known as Rudra. At Brahma’s request, Rudra divided himself into two halves — Shiva and Parvati
Arjuna: The warrior-prince of the Mahabharata has a transgender form in Brihannala. When he refuses the advances of the celestial courtesan Urvasi, she curses him to become an effeminate man. Indra reduces the curse to one year — the period Arjuna hid in exile in the kingdom of Virata. Brihannala has masculine features but an effeminate gait, speech and attire
Shikhandi: According to Vyasa’s Mahabharata, Shikhandini, King Drupada’s daughter, exchanged her sex with a yaksha, thus becoming Shikhandi. The yaksha (demi-god) Sthunakarna takes pity on Shikhandini, who had to prove her masculinity to her father-in-law. He donates her his male organs and accepts her female organs in return. In a popularised version, when Shikhandini changes her sex, she becomes Shikhandi but is a eunuch. He plays a key role by shielding Arjuna when he fights Bhishma who refuses to fight a half-man
Sri Bahuchara Devi: A form of Durga, she is mentioned in both Padma Purana and Skanda Purana. She has a temple in Bahucharaji Taluka, Gujarat, The third sex community identifies with her tragic fate. In her mortal form, she is deceived into marriage with a man with homosexual leanings. In an encounter with a bandit, she is forced to cut off her breasts to avoid being raped and bleeds to death. In another account, Bahuchara secretly follows her husband into the forest and finds him indulging in homoerotic behaviour with other young men. When he admits he was forced into the marriage to continue the family line, she castrates him by a curse. She is a patron goddess of the transgender community
Compiled by GS MUDUR AND SUDESHNA BANERJEE