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| Unfair deal: Actress Celina Jaitley with lesbian, gay, bisexual and transgender people during a gay pride parade in Mumbai recently |
When Laxmi Narayan Tripathi, a transgender activist, was asked to leave the Gymkhana Club in Mumbai last year, she knew it was still a long walk on the road to social acceptance for the third sex. Tripathi, who has spoken for transgender rights at the United Nations and other international fora, was humiliated in her own hometown for being a member of the transgender community.
“I am not a man, not a woman, I am a hijra — the third sex and society should accept me the way I am,” said Tripathi later at a seminar.
Transgender, also called transsexual, is a broad term used to describe individuals who are not necessarily defined by, or who feel they do not fit, the gender assigned to them at birth.
According to experts the primary reason for the social discrimination faced by transsexuals is the lack of legal recognition and the ambiguity related to their gender identity. “It is a key barrier that often prevents the transgender from exercising their rights related to marriage, adoption, and inheritance,” says Alka Narang, assistant country director, HIV & development unit, United Nations Development Programme (UNDP). “They have little access to public and private health services, use of social welfare and health insurance schemes, and employment opportunities,” she adds.
But some legal initiatives are under way to address the problems of the community. At a seminar on ‘Transgender and the Law’, held in Delhi recently, eminent members of the judiciary spoke on the need for their inclusion into society. The seminar, jointly organised by the National Legal Services Authority (Nalsa), the Delhi Legal Services Authority (DLSA) and the UNDP, highlighted the plight of the community and the need for reforms.
“We have no access to public places like movie halls and shopping malls, public toilets, social welfare and health insurance schemes,” says Kalki Subramaniam, director, Sahodari Foundation, an organisation working for the social and economic empowerment of transsexuals in Tamil Nadu. Pushed to the periphery of society as outcasts, most resort to begging, dancing at social functions or become sex workers.
The laws, as they stand, are unclear when it comes to recognising the existence of a third gender. “Take the rape laws or the marriage laws which identify only a male or female,” says Tripti Tandon from Lawyers Collective, a non governmental organisation in Delhi. Many of the laws, like Section 375 and Section 376 of the Indian Penal Code (IPC) pertaining to rape, are gender specific. “A eunuch could be sexually assaulted but he or she may have no rights owing to the gender specific nature of the law,” says Tandon.
“All the issues related to personal laws arise because our gender isn’t legalised. Once the gender gets a legal status, everything else like marriage, inheritance and adoption will fall into place,” says Priya Babu, a documentary filmmaker, writer and president of the Tamil Nadu Aravani Association, a group formed to protect the rights of aravanis (eunuchs).
Many among the legal fraternity are vocal about the need for social inclusion of the transgender community. “Despite some court rulings going in favour of transsexuals, the community continues to be ostracised. We need societal awareness to end the stigma they face,” says Digvinay Singh, project officer with DLSA. The legal group recently recognised transsexuals as the third sex, entitling them to free legal aid. “Any transgender can now avail of our services,” says Singh.
Transsexuals also find it strange that the law does not recognise their right to opt for a sex change operation. “Our legal system is silent on the issue of sex reassignment surgery (SRS) for sex change,” says Narang. According to Section 320 of the IPC, “emasculating” (castrating) someone is causing him “grievous hurt” for which one can be punished under Section 325 of the IPC.
“Thus, technically speaking, even if one voluntarily chooses to be emasculated, the doctor is liable to be punished under this provision and the person undergoing emasculation could also be punished for ‘abetting’ this offence,” says Narang.
However, under Section 88 of the IPC, an exception is made in case the action is undertaken in good faith and the person gives consent to suffer that harm.
Still, the lack of guidelines often makes the medical fraternity shy away from operating on a transgender. “Since the law is unclear and there are no specific medical guidelines for SRS, very few doctors agree to perform SRS,” says Tandon.
What’s more, though the Delhi High Court has decriminalised homosexuality, harassment of same sex couples and transsexuals continues. “Section 377 is still used to blackmail, extort money and deny them their rights,” says Narang.
There are nearly one million transsexuals in the country and the community has been fighting for its rights for a long time now. And some sporadic successes have been won. For example, in 2006, the Tamil Nadu government issued an order, providing for a number of supportive measures to transsexuals, including the establishment of a special state welfare board for them. Educational institutions were also asked not to discriminate against them and government hospitals were instructed to conduct SRS free of cost.
In November 2009, the community won the right to be listed as “other” rather than “male” or “female” on electoral rolls, voter identity cards, passport forms and now on census forms as well. The Karnataka government has also passed a resolution entitling them to 15 per cent reservation under the 2A category of the Backward Class Commission.
“The government needs to come up with reservation for the transgender community in every sphere of society. For social inclusion, we need to be educated and given jobs,” says Subramaniam. “Just as the socially backward enjoy a quota in educational institutions and government jobs, we too need to be given some social security,” says Babu.
Until that happens, however, people like Tripathi may continue to face discrimination.