“Society has been splitting genders into blue and pink, but what about the purple ones”

-The Author, herself.

INTRODUCTION

Human beings are social creatures following a path created by societal norms, among which stands the topic of sex and gender. From the starting of civilisation and in every place where humans are situated only two genders were recognized. Both of these genders are raised differently by their parents. Males are taught to become naturally dominant, while females are taught to be docile. The sex assigned at birth determined every action that the particular person will do in his/her lifetime.

As civilizations evolved from matrilineal and communal societies to male-driven (patriarchal) societies with rigid class divisions and a started concentrating on property ownership, male-driven cultures lowered women’s status, and because they were threatened by the long-standing notion that all those who blurred gender lines possessed deeper insights, they set out to pummel gender-transgressive people. However, gradually, the society acknowledged the necessity to recognise the Third gender.

TRACING THE HISTORY

For centuries, Muslim tradition differentiated between MTF¹ transsexuals who live as prostitutes or criminals, and those in whom femininity was innate and who lived blamelessly. The latter were called “mukhannathun,” and accepted within the boundaries of Islam. Mukhannathun could have relationships with either men or women, but only those who had been castrated or were exclusively attracted to men were allowed into women’s’ spaces. Later, it was ordered that all mukhannathun undergo castration.

In Asia, Transgenders persist, although their reverence is often limited to the belief that their presence at weddings is a good portent for the couple. They do tend to suffer in the modern Indian caste system, something that “eunuchs” of all types are banding together to work to improve (i.e. only recently was a Transgender able to vote, and now there have been Transgender elected officials). Historically, they have often worshipped the mother-goddess Bahuchara Mata, although some also worshipped Shiva in his half-man, half-woman persona, Ardhanarisvara orAravan – the deity of the transgender community.²

Unclear, But Present

Lord Rama, in the epic Ramayana, was leaving in the forest upon being banished from the kingdom for 14 years, turns around to his followers and asks all the ‘men and women’ to return to the city. Among his followers, the transgenders alone did not felt bound by this direction and decide to stay with him. Impressed with their loyalty, Rama sanctioned them the power to confer blessings on people on auspicious occasions like child birth and marriage, and also at inaugural functions which, it was supposed to set the stage for the custom of badhai in which Transgenders sing, dance and confer blessings. This gives us the basis of this article that the third gender existed from mythological times, though, uncertainly, but it did.

 

VARIOUS DIVISIONS AMONG GENDER AND ITS PSYCHOLOGY

Individuals whose gender identity, expression, or behavior differs from those traditionally associated with their given sex at birth, such as transsexuals, crossdressers, androgynous persons, genderqueers, and gender non-conforming people, are referred to as transgender. Providers can use the term “transgender” because it is a wide word. It is an umbrella term which contains cisgender, cross-dresser (CD), Drag king, Drag queen, Gender Dysphoria, Gender fluidity, Gender non-conformity, Gender non-binary, gender-queer and Intersex. A very popular term “LGBTQ” is given to the people of third gender which covers Lesbians, Gays, Bisexuals, Transgender and Queer communities’ world-wide.³

However, it’s critical that we don’t label someone transgender based on our own biases, but rather on the terms they use to define themselves. Gender identity is something that everyone has. A person’s internal sense of being male, female, or something different is referred to as gender identity. For the most part, one’s gender identity corresponds to the sex given to them at birth: a person born female, for example, identifies as a girl and then as a woman. There may not be a match for many transgender people. Gender expression something that everybody has. Gender expression encompasses all of the ways in which people represent their gender to others, including attire, demeanour, and conduct.

UNIVERSAL COGNIZANCE TO THIRD GENDER

As of January 2021, 29 countries accepted same-sex marriage in practice. Only one country, barring non-state actors and extrajudicial killings, is considered to carry out the death penalty for consenting same-sex sexual activity. Murder convictions are legally lawful in Afghanistan, Brunei, Mauritania, Nigeria, Saudi Arabia, Somalia, and the United Arab Emirates, although they are rarely utilized. The death penalty for anal intercourse (hetero or homosexual) in Sudan was abolished in 2020. Stoning is legal in fifteen countries as a penalty for adultery, which includes gay intercourse, however just a few people practice it and authorities enforce it.

Following the enactment of the first resolution recognizing LGBT rights by the United Nations Human Rights Council in 2011, the Office of the United Nations High Commissioner for Human Rights issued a document detailing violations of LGBT people’s rights, including hate crimes, criminalization of homosexual activity, and discrimination. Observing and analysing, the Nations insisted on the introduction of laws guaranteeing inherent LGBT rights by those nations that had not yet done so. States’ basic legal duties to safeguard LGBT people’s human rights include⁴:

• Protecting persons from homophobic⁵ and transphobic⁶ violence, and preventing torture, harsh, inhuman, and humiliating treatment.
• Establish effective mechanisms for reporting hate-motivated acts of violence.
• Provide law enforcement officials with training and oversight of detention facilities, as well as a method for victims to seek redress.
• Asylum laws and procedures should acknowledge that persecution based on sexual orientation can be a legitimate reason for seeking refuge.
• Revoke all laws that prohibit private sexual behavior between consenting people, including those that punish homosexuality.
• Ensure that people aren’t imprisoned or jailed because of their sexual orientation or gender
• To avoid prejudice and stigmatization of LGBT and intersex individuals, provide education and training.
• Ensure that all LGBT people have the right to freedom of expression, association, and peaceful assembly, and that any restrictions on these rights.
• Encourage a culture of equality and diversity that includes respect for LGBT people’s rights.

However, according to a recent research⁸, trans-individuals are de facto criminalized in 37 nations. As a result, the International Lesbian, Gay, Bisexual, Trans and Intersex Association has classified 37 nations as having laws that criminalize transgender persons de facto, and 11 countries as having anti-trans de jure regulations. On the other hand, there is reason to be optimistic for transgender rights throughout the world. Australia, Canada (for non-binary persons), Chile, Colombia (for children), and Costa Rica have all implemented significant modifications since 2017. Pakistan has likewise implemented reforms that allow for gender marker modification without any restrictions.

Backlash

Regressions have happened in every part of the globe where we have seen legal gender recognition, most notably in the shape of so-called “gender ideology,” the rise of exclusionary groups, and right-wing politicians pitting LGBT against national identity. This is in addition to an increase in violence and killings directed towards transgender, non-binary, and gender-diverse persons⁹.

Nonetheless, this is not the position in India; the legislations outlined above are related to basic human rights, which are fundamental for all human beings to exist. Acceptance to third gender is measured by various criteria’s including their rights of Same-sex sexual activity, Recognition of same-sex unions, Same-sex marriage, LGBT people allowed to serve openly in military, Anti-discrimination laws concerning sexual orientation, Laws concerning gender identity/expressions, etc.

According to a survey conducted by PSOS on the topic of transgender people, Countries around the world believe they are becoming more tolerant of transgender people and majority want their country to do more to protect and support transgender people.

The Pride Month

Lesbian, Gay, Bisexual, Transgender, and Transgender Pride Month (LGBT Pride Month) takes place in June to commemorate the Stonewall riots of 1969 and to promote equal justice and employment for lesbian, gay, bisexual, transgender, and inquisitive (LGBTQ) Americans. Patrons and advocates of the Stonewall Inn in New York City organized an uprising in June 1969 to protest the widespread police brutality and mistreatment of LGBT Americans. This revolt represents the start of a campaign to repeal oppressive laws and policies against LGBT people in the United States¹⁰.

Pride parades, barbecues, parties, conferences, symposium, and musicals are now commonplace and LGBT Pride Month activities draw millions of people from all over the world. During this month, memorials are conducted for community members who have died as a result of hate crimes or HIV/AIDS. The commemoration month’s goal is to acknowledge the effect that LGBTQ people have had on history on a local, national, and worldwide level. Now, let us examine the judicial point of view in India.

THE INDIAN PICTURE

In India, transgender is undoubtedly the most well-known and widely accepted third form of sex in the modern world. The Supreme Court recognized transgender people to be of the third gender. In India, the third gender has developed as a powerful force in the LGBT rights movement. In recent years, the Indian government has implemented a number of welfare policies and programmes, including censuses, paperwork, citizenship ID cards, passports, social-economic development, and constitutional guarantees for transgender persons. The Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) was a key program during the 11th Five-Year Plan era that provided transgender people with job possibilities.

In some parts of India, colonial rulers considered transgender people to be a separate caste or tribe. The Criminal Tribes Act of 1871 included all transgender people who were involved in kidnapping and sodomizing children, as well as masquerading up as women and performing in public. Such activity might result in a sentence of up to two years in prison and a fine, or maybe both. This pre-partition background has an influence on the fragile position of transgender people in current generation.

In 2012, the Karnataka Police Act was modified to “provide for registration and monitoring of transgender who engage in kidnapping of children, unnatural acts, and acts of this nature” (Section 36A), similar to the Criminal Tribes Act, 1871.

Constitution of India provides many provisions in relation to the third gender. “All citizens enjoy life and equal opportunities to flourish as human beings irrespective of their race, caste, religion, community, socioeconomic position, and gender” is the gold thread which falls under the equality plan of the Indian Constitution, In essence, Right to equality and right to life and liberty. (Articles 14, 15, 16, 19, and 21). The acknowledgment and appreciation of the “right of choice and self-determination” is one of the key pillars of the equality framework. Determining the sex a person belongs to and connects to, is rooted in his right to self-determination and dignity.

Acknowledging that Indian laws are substantially binary in nature, recognising only male and female genders, the Honorable Supreme Court of India in its order in the case of National Legal Services Authority vs. Union of India¹¹ declared transgender individuals distinct from binary genders, as the ‘Third Gender’ under the Indian constitution and for the purposes of laws enacted by the parliament and state legislatures.

The 1956 Immoral Traffic Prevention Act rectified in 1986 has now become gender-neutral. The realm of law now applies both to men and women, including with people including undetermined gender identification. The legislation made male and hijra sex workers illegal, giving the authorities the legal grounds for arresting and intimidating transgender sex workers. It laid the foundation of the most important case which highlights and validates transgender in India.

The same sex relationships among consenting people was criminalized by Article 377 of the IPC It was a legislation of a colonial age that renders the community of Transgender exposed to police harassment, violence and abuse. Pander, a transsexual, was arrested for the robbery of police in Jayalakshmi v. State of Tamil Nadu. In the police station, he was sexually abused and eventually killed.

Subsequently, Navtej singh johar v. Union of India¹² was the landmark case which decriminalised gay-sex. It was the most crucial verdict that gave transgender the right to live under the umbrella of golden triangle. The principles held in this case were:

1. Sexual orientation is an intrinsic element of liberty, dignity, privacy, individual autonomy and equality.
2. Intimacy between consenting adults of same sex is beyond legitimate interest of the state.
3. Sodomy laws violate equality by targeting a segment of the population of their sexual orientation.
4. Such a law perpetrates stereotypes, and has chilling effects on exercise of freedom.
5. The right to love is essential to a society which believes in freedom under a constitutional order based on rights.

CURRENT STATE OF AFFAIRS

Non-recognition of the Third Gender in the Indian legal framework had resulted in systematic denial of equal protection of law and widespread socio-economic discrimination in society at large as well as in Indian workplaces. In the wake of the Nalsa Judgment, the Indian parliament recently enacted the Transgender Persons (Protection of Rights) Act,2019¹⁴. The Act guarantees fundamental rights such as equality and non-discrimination, life and personal liberty, freedom of expression, the right to live in a community, and integrity, as well as protection against torture, cruelty, and abuse, violence, and exploitation. For transgender youngsters, there is a special provision.

As defined by the Act, ‘transgender’ refers to and includes all individuals whose sexual identity doesn’t really conform or match the gender assigned at birth, including trans-man and trans-woman (whether or not they have undergone sex reassignment surgery and individuals with socio-cultural identities such as ‘kinner,’ ‘hijra,’ ‘aravani,’ and ‘jogta.’

The legislation has put positive duties on all relevant stakeholders, distinguishing between measures that require rapid implementation, such as creating social welfare systems, and activities that require a long-term strategy, such as altering the general public’s unfavourable attitude. The federal government, state governments, and establishments are all considered ‘stakeholders’¹⁵. Guarantees are used to fulfil these commitments¹⁶. The following are some of them:

Prohibition of discrimination against Transgender individuals: Discrimination includes denial or discontinuation of access to or enjoyment of, or unfair treatment in:

• Educational establishments;
• Employment;
• Healthcare services;
• Any goods, accommodation, service, facility meant for public use;
• Right of movement;
• Right to purchase reside, purchase, rent or otherwise occupy property;
• Opportunity to stand for or hold public office; and
• Government or private establishment in whose care or custody a transgender person is.

Recognition of identity: Recognition of transgender individuals’ identity and conferring the right and entitlement to obtain a certificate of identity as proof of recognition from the relevant state authorities.

Welfare channels: Formulation and enactment of welfare measures, schemes, programmes for education, social security, healthcare, effective participation in the society and facilitating access to these schemes and welfare measures by appropriate state governments.

Rehabilitation and right of dwelling: Rescue and rehabilitation measures, including right of residence conferred by the relevant state governments.

Identity Documents: The widespread lack of accurate identity documents among trans people can have an impact on every aspect of their lives, including access to emergency housing or other public services. Without identification, one cannot travel, register for school or access many services that are essential to function in society. However in the Transgender protection of rights Rules, 2020, this problem is solved.

Obligations on Establishments: ‘Establishment’ means anybody or corporate authority established by or under a central or state act or anybody owned, controlled or aided by the government or any company or body corporate or association or body of individuals, firm, cooperative, other society, trust, agency or institution¹⁷.

Transgression and punishments:

Anyone who:

• Compels or entices a transgender individual into forced or bonded labour (excluding compulsory government service for public purposes);
• Denies a transgender person the right of public passage or use of public places;
• Forcefully removes a transgender person from a household, village or other place of residence;
• Commits an acts or intends to do an act causing physical, sexual, verbal, emotional or economic harm and/or abuse against a transgender person;

shall be punished with imprisonment which may vary between six months to two years, with a fine.

Inclusivity in the workplace: the Act only puts an onus and does not place legal requirements on the Stakeholders concerned, in view of the changing dynamic. The Act provides for the development of a variety of bodies and forums, including National and State Commissions for Transgender People. The Commission’s activities will mostly consist of investigations and recommendations of discrepancies in the application of the law or abuses of transgender people’s rights. The Commissions have the authority to summon witnesses, hear evidence, and so on. Verbal abuse directed against transgender persons carries a punishment of up to a year in jail.

National Council for Transgender Persons and National Portal for Transgender Persons: Ministry of Social Justice and Empowerment

The National Council will perform the functions assigned to it under the Act, including but not limited to advising concerned Stakeholders on formulation of policies, programmes, legislations and welfare measures, monitoring and evaluating the impact of policies and programmes designed for ensuring participation of Transgenders and ensuring redressal of grievances of Transgender Persons among others. A portal exclusively for transgender is launched by the ministry for grievance redressal and helpline. It is a universal portal with a 24/7 service made only for the third gender. The government has attempted to eradicate the stigma, discrimination and human rights violation for the betterment of transgender community. If all this are brought in their day to day life, it would enlarge the growth of transgender community in India¹⁸.

WRAPPING UP WITH RECOMMENDATIONS

Nations still have to update their laws in line with the WHO’s guidelines, underwritten by the UN, by January 2022. The Transgender Persons Act provides an unclear and deceptive description of a “transgender person.” A transgender person is someone who has a different gender identification from the one they were given at birth, whereas a person with intersex variants has a gender based on biological features. The distinction between the two definitions is subtle, but the concept of ‘transgender individuals’ has been made too wide to encompass a ‘person with intersex variants.’¹⁹

So what can be done?

• Reservations till they achieve equality.

Constitution of India provides for special law making for the oppressed ones. Laws are made in regard to ST, Scand OBCS. Similarly work of action is needed for the third gender as well. They are the most oppressed of them all. Some say that if the Transgender Persons Act had included reservations (affirmative action) for transgender people in educational institutions and workplaces, it would have been more appealing to transgender people and more comprehensive and successful.

• Stigma, Harassment and bigotry to be added in general curriculum for children.

Despite this progress, the trans-community still faces considerable stigma due to more than a century of being characterized as mentally ill, socially deviant and sexually predatory. This stigma plays out in a variety of contexts – from lawmakers who leverage anti-trans stigma to score cheap political points; to family, friends or coworkers who reject trans-people upon learning about thier trans identities; and to people who harass, bully and commit serious violence against trans people. This includes stigma that prevents them from accessing necessary services for their survival and well-being. This needs to be removed with the help of educational curriculum exclusively talking about the third gender and the sensitivity behind it.

• Aggression against Trans-People to be tackled

Trans-people experience violence at rates far greater than the average person. Over a majority (54%) of trans people have experienced some form of intimate partner violence, 47% have been sexually assaulted in their lifetime and nearly one in ten were physically assaulted in between 2014 and 2015. This type of violence can be fatal. At least 27 trans and gender non-conforming people have been violently killed in 2020 thus far, the same number of fatalities observed in 2019²⁰. 

The Act does not provide for any protection measure. The penalty for transgender-related offenses under the Transgender Persons Act are just two years in jail plus a fine, which may appear insufficient for more serious crimes like sexual assault. The Transgender Persons Act is likely to remain insufficient since it lacks a framework on a variety of other related rights, such as marriage, adoption, and pregnancy rights – a wasted chance to be much more inclusive.

• Promotion of equality

While advocates continue working to remedy these disparities, change cannot come too soon for trans people. Visibility – especially positive images of trans-people in the media and society – continues to make a critical difference for us; but visibility is not enough and can come with real risks to their safety, especially for those of us who are part of other marginalized communities.

• Sensitisation and teaching

Before any system changes are implemented, organizations must education workers in the area of gender inclusiveness, workplace assimilation and better acceptance of transgender people’s natural character and personality in the company environment.

• Review of policies

HR, administrative, recruitment, and employee benefit rules and manuals must all be reviewed and updated. To ensure that rules represent acceptable methods for an organization to address the Third Gender, it might be good to request and integrate recommendations from a member of the transgender community.

• Sex/gender reassignment surgery (SRS) shift

Transitioning to SRS is not only a challenging but also a painful procedure, both physically and psychologically. Organizations must have rules that give transition assistance, not just in terms of paid leave, but also in terms of educating the rest of the workforce about an employee’s transition and providing rehabilitation and counseling.

• Anti-harassment policies

Organizations must instate adequate grievance redressal mechanisms for transsexuals to deal with harassment complaints, similar to the requirements under the POSH Act²¹, whilst also keeping the claimant’s identity pseudonymous.

• Sex non-aligned washrooms

Employees should be able to use restrooms that are appropriate for their profession. When Trans women are forced to use male restrooms, they are frequently humiliated and harassed.

• Conscription

Organizations must remember that transgender people have been discriminated against for years, resulting in social, economic, and talent gaps, and that recruiting standards must be updated accordingly. Organizations must also make an effort to provide training programs that will help employees improve their abilities.

• Stakeholder’s ambiguous status

The extent to which the stakeholders involved will take good efforts to encourage inclusion and effort to create transgender people useful members of society will be a long and difficult process. The Act does not specify how their newly acquired gender status affects their privileges in many areas and elements of life, and it is mostly quiet on the repercussions of non-compliance and accountability for Stakeholders.

Lastly, The Act is not a comprehensive piece of law; rather, it is a first step by the government in recognizing the Third Gender as a legal entity inside our legal system. The Transgender Persons Act places far too many responsibilities on the shoulders of the “relevant government.” It remains to be seen how high a priority the government will place on ensuring that all of those requirements are met on time, putting transgender people at the mercy of the system for the proper implementation of the benefits guaranteed to them under the Transgender Persons Act.

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Author: Prerna Tyagi from Trinity Institute of Professional Studies.

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