South Asia is now finally waking up to legally recognize gender non-normative groups; yet India is temporarily lagging behind. In 2007, Nepal recognized transgender as a separate gender category and granted equal citizenship to all persons identifying as such.¹ In 2009 and 2011, Pakistan recognized third gender persons as a separate category for state official identification documents and ordered the National Database and Registration Authority to issue third gender identity cards to all requesting persons.² Recently, Bangladesh recognized hijras as equal citizens.³ Hopefully, India too may be on its way. Currently, a public interest litigation petition filed by the National Legal Service Authority is pending before the Indian Supreme Court that will determine the legal fate of the transgender community in India.

After hearing several days of arguments by NALSA and intervening parties such as Laxmi Narayan Tripathi, a hijra activist, the court has decided to reserve judgment. The Department of Social Justice and Empowerment has since established an expert committee on ‘the issues relating to transgenders to make an in-depth study of the problems being faced by the transgender community and suggest suitable measures.’⁴ This committee will present its policy recommendations in January 2014.

The term ‘transgender’ or ‘third gender’ are terms with wide social import; yet their meanings elude cohesive definition. The definition favoured by the World Professional Association for Transgender Health reveals the substantial difficulty in defining these terms: ‘Some individuals describe themselves not as gender non-conforming but as unambiguously crosssexed. Other individuals affirm their unique gender identity and no longer consider themselves to be male or female…affirming their unique experiences that may transcend a male/female binary understanding of gender.’⁵ Within India alone, these terms have been used to describe a wide variety of male-to-female persons including, but not limited to the Arvanis in the South of India (particularly Tamil Nadu), the Jogtas and Jogappas in Maharashtra and Karnataka, and the Shiv-Shakthis across India.

In reality, hijras are only one community of the wide variety of gender non-conforming communities in India considered to be ‘transgender’. In addition, the term transgender has also been used to describe persons who are assigned the female sex at birth but who later identify as men.⁶ Little is known about the female-to-male (FTM) or transmen persons in India. Thus, the perspectives of the female-to-male and transmen communities are missing from social and legal discussions on transgender rights.

Discrimination against the ‘trans-gender’ community in India has taken on a variety of institutionalized as well as non-institutionalized forms. For example, hijras and other groups often are forced by society to earn their livelihood through low paying jobs such as performances at weddings and at the birth of a child or sex work. According to a recent report, transgender persons are often denied access or equal access to many social institutions.⁷ In addition, they are constantly subjected to violence from the police, state, and the public itself.⁸ The right of gender non-conforming sexual minorities to decide and perform their own gender identities and sexuality preferences is largely compromised within India.

 

Gender non-conforming minorities in India historically had limited formal interaction with the law. During colonial times, the term ‘eunuch’ was used to describe this very heterogeneous male to female category and such persons were considered criminals. In 1891, the British Parliament passed the Criminal Tribes Act, which mandated that specific tribes and their familial descendants were hereditary criminals. It was later amended in 1897 to include an additional category of criminals termed ‘eunuchs’. Under the act, individuals who found themselves included in the statutorily defined ‘eunuch’ criminal category could not will property, give gifts, or adopt a son. Of the foremost importance to the daily life of hijras and proscriptive of their future social positioning, the act prohibited eunuchs from dressing as women, dancing or playing music, or taking part in any public exhibition in a public street or place or for hire in a private house. They could no longer participate in the social sphere under the cultural roles they had traditionally held.

 

The end of the colonial period, however, did not mark the end of legal discrimination against the hijra community. There has been both implicit and explicit unequal treatment of hijras and other groups through the rule of law after the transition to India’s independence. In 1952, the Criminal Tribes Act was repealed and later replaced by the Habitual Offender’s Act. The previously demarcated ‘criminal’ tribes were now called the ‘denotified’ tribes under the Habitual Offender’s Act. Despite this minor rephrasing, the legal rights and social position of these tribes did not change.

Legal discrimination against the hijra and other such communities also trickled down to the states as well. In 2011, the Karnataka government amended the Police Act and introduced Section 36A. This section criminalized the so-called ‘objectionable activities’ of eunuchs such as kidnapping boys, committing ‘unnatural offences’ or any such crimes in a register.⁹ The law has provided unreasonable discretion to law enforcement and, therefore, left an already marginalized community of hijras and other gender non-conforming groups open to legal and social harassment by police. On the other hand, some states have enacted progressive measures recognizing transgender rights. For example, in Tamil Nadu, transgender persons may opt for a special ‘T’ designated ration card and qualify for the state’s housing welfare schemes for hijras.

 

Currently, there is no legal recognition of a third gender civil personhood in India.¹⁰ Discrimination on the basis of gender is strikingly left out of the Constitution’s equal protection powers, although sex discrimination is explicitly prohibited as unconstitutional. Thus, a strict reading of the constitutional text would suggest that the state could indeed discriminate against a person on the basis of their gender – which when applied to the already marginalized community of gender non-conforming persons living, working and interacting with India’s society and government – is indeed, quite alarming. The pending Supreme Court case, NALSA vs. Union of India and Ors.,¹¹ will be the first Supreme Court decision that explicitly addresses the legal rights of this community. The need for such a decision in India is dire when one looks at the government’s current recognition (or lack thereof) and treatment of gender non-conforming sexual minorities.

 

India’s lack of legal recognition and absence of law-based discrimination prevention efforts for the transgender community is quite appalling compared to other neighbouring countries in the Global South. For example, Nepal is a legal success story for transgender individuals as well as other gender and sexual minorities. In 2007, Nepal’s Supreme Court in Pant vs. Nepal Government¹² ruled that the government must (i) issue ‘other’ citizenship certificates to those so identified, and (ii) recognize transgender individuals as equal before the law. As part of its rationale, the court held that gender non-confirming individuals are ‘also Nepali citizens and as natural person they should be allowed to enjoy all rights with their own identity as provided by natural laws, the Constitution and international human rights instruments.’ These progressive reforms in Nepal are a guiding beacon for the courts and policymakers of India as the nation moves forward to addressing the rights of transgender persons.

Pakistan has seen similar, but limiting, developments in expanding and protecting the rights of transgender persons. In 2009, Pakistan’s Supreme Court legally recognized third gender persons as a category for state/official identification documents and ordered the National Database and Registration Authority to issue these third gender identity cards to individuals identifying as such. In addition, the Supreme Court of Pakistan ruled that a certain quota of all government jobs must be given to transgender persons.¹³ NALSA vs. Union of India has the very real potential to be the first Supreme Court decision in India to explicitly address the legal rights of the transgender community and bring the country in closer alignment with the progressive transgender rights in neighbouring countries of the Global South.

 

Over the course of the last ten months, the Centre for Health Law, Ethics and Technology at Jindal Global Law School has submitted numerous Right to Information application requests to all states in India regarding the policies and welfare schemes established for transgender, gay and lesbian persons (gender non-conforming sexual minority groups). The RTI asked simple questions from the state government departments: (i) What are the welfare schemes for transgenders and hijras in the state? (ii) What are the welfare schemes for sexual minorities in the state? (iii) What are the laws and policies for transgenders and hijras in the state? (iv) What are the laws and policies for sexual minorities in the state? (v) How many transgenders and hijra population is there in the state? and (vi) Do government hospitals offer free or subsidized sex reassignment services?

The term transgender, rather than third gender or gender non-conforming persons, was chosen because most HIV/AIDS funding in India is currently allotted for the ‘transgender’ population – therefore, the term would be the most likely to uncover any state scheme for persons considered third gender, transgender, hijra, lesbian, gay or bisexual within the state. The Centre received responses from nearly twenty-three states. However, the sufficiency of the responses varied by state. Some states provided answers to all six questions. Other states, such as Nagaland, only provided a response to one of the questions asked, whereas other states merely transferred the RTI back and forth between departments resulting in a failure to provide even a single answer to any of the queries. The information collected is presented in chart format in Table 1.

While the number of questions answered depended on the state, the answers did not. All states, with the exception of Rajasthan and Chennai, that responded to Questions 1 and 2 (Andaman and Nicobar, Bihar, Chhattisgarh, Dadra and Nagar Haveli, Daman, Himachal Pradesh, Manipur, Meghalya, and Mizoram) stated that they did not have welfare schemes for transgender, hijra or other sexual minority persons. Rajasthan had a welfare scheme but limited only to persons identified as hijras who make less than Rs 60,000 a year upon proof to the government. According to the RTI received, Tamil Nadu had the most progressive welfare schemes for transgenders and hijras offering training and financial assistance up to Rs 20,000.

 

All states responding to Questions 3 and 4 (Andaman and Nicobar, Chhattisgarh, Dadra and Nagar Haveli, Daman, Himachal Pradesh, Meghalya, and Mizoram), admitted to not having any laws and policies for transgenders or other sexual minorities. Nearly all state departments that answered Question 5, with the exception of Nagaland (Chhattisgarh, Dadra and Nagar Haveli, Daman, Himachal Pradesh, and Mizoram), replied that they did not have any transgender hijras or other gender minority persons living in the state.

Nagaland had conflicting responses from two different departments for Question 5. The Nagaland State Aids Control Society stated that they had only thirteen transgender or hijra persons in the entire state. However, Nagaland’s Directorate of Social Welfare replied, ‘There is no official report of any transgender and hijras in Nagaland.’ There are a number of concerns in regards to Nagaland’s response. First, the Directorate of Social Welfare was not aware of transgender individuals within its own state. Second, it is unclear how the data was collected by Nagaland’s AIDs Control Society and why this information did not make it to other branches of the Nagaland government who would interact with this community (i.e. Social Welfare).

 

According to the RTI responses received, Tamil Nadu has the largest number of known transgender or hijra (10,679) individuals living in the state. All states that answered Question 6 (Chhattisgarh, Dadra and Nagar Haveli, Daman, Himachal Pradesh, Manipur, Meghalya, Mizoram, Nagaland, Tripura) responded that the state government did not have sex reassignment surgery services available or that such services were not free or subsidized by the state.

On the basis of the RTI data collected, it is evident that the majority of states in India (at least 20) do not have social welfare schemes, sexual reassignment surgery or laws and policies for the gender non-conforming sexual minorities of India. This is problematic for, as discussed above, this group of persons is often left marginalized and discriminated against by society – with harmful affects such as poverty, sexual and physical violence, and violations of their rights to dignity.¹⁴

 

Of additional note is the dramatic failure of the state departments to provide substantive answers, as required by law, to the six questions asked in the Right to Information request. For example, the state of Delhi transferred the RTI back and forth between the Department of Health and Family Welfare, and the Bureau of Economics and Statistics. Neither department eventually answered the RTI. Other states simply transferred it to departments that never responded. This circumvention occurred in numerous states including: Gujarat, Himachal Pradesh, and Maharashtra.

The results from the ten-month RTI request process highlight the lack of protectionary measures, entitlement schemes and information for non-conforming gender and sexual minorities across the country. With little information available on this marginalized community and an utter lack of uniformity for schemes affecting this population, states continue to allow the status quo of discrimination against gender non-conforming groups (such as transgenders) to continue unabated.

 

Law acts upon persons outside the epistemological constraints of courthouses and parliamentary floors. As Ratna Kapur justly noted, ‘It is important to scan beyond the disciplinary boundaries of law.’¹⁵ The law, reflects society’s discriminatory beliefs and practices and must be ‘reconceived as a site of power rather than freedom and emancipation.’¹⁶ Without the involvement of such marginalized communities or the incorporation of their unique perspectives, law has the potential to merely reflect (at best) and institutionalize (at worst) discrimination against the community itself.

As applied to NALSA vs. Union of India and Ors, several concerns are raised. First, the arguments made by the petitioner before the Supreme Court represent only a small portion of the much larger gender non-conforming sexual minority umbrella. Second, the court’s discussion of the trans-community’s sexual practices is not only wholly misplaced, but acts as a form of institutionalized social norms (see discussion above) – delineating same sex as normal and other sex as abnormal.

The social and legal barriers faced by hijras and other groups vary widely across India. The community is extensive and heterogeneous.¹⁷ Thus, arguments concerning the rights of this group must incorporate nationwide research and consultation with such groups across the country in order to secure a fair and representative view of this community. Second, the petitioners appealed to the court to find that transgender persons in India are a third gender (separate from the binary of men and women categories) and should be recognized as such. While many transgender persons may agree to such a classification, some other groups (for example, female to male) may vehemently disagree.¹⁸ There are members of the transgender community who firmly identify and believe themselves to be of the opposite gender than they were originally born into, and not a separate third gender.¹⁹

 

It is necessary that the Expert Committee incorporate the perspectives, needs and desires of India’s highly heterogeneous transgender community (including female-to-male, male-to-female, third gender, and other gender-non-conforming groups). Without such involvement, any future decision by the court may fall prey to Ratna Kapur’s fear of law acting not for freedom but for societal power. Whose power it is, and how it is used is not yet clear in the case of NALSA v. Union of India and Ors. However, one thing is certain: the rights of India’s gender non-conforming community will be in jeopardy without their involvement in this legal process.

 

Footnotes:

1. Pant vs. Nepal, Writ. No.917 of the Year 2064 BS (2007 AD), translated in Nat’l Jud. Acad.L.J., 2008.

2. Khaki, A. v. Senior Superintendent of Police, Supreme Court of Pakistan, 2009.

3. Dhaka Tribune, ‘Hijras Now a Separate Gender’, 11 November 2013. http://www. dhakatribune.com/bangladesh/2013/nov/11/hijras-now-separate-gender

4. Sub: Notice Inviting Comments/Suggestion, Department of Social Justice and Empowerment.

5. World Professional Association for Transgender Health, ‘Standards of Care for the Health of Transsexual, Transgender, and Gender-Nonconforming People’, Intl. Journal of Transgenderism, Vol. 13, 2011, p. 171.

6. National Center for Transgender Equality, Transgender Terminology, 2009; available at http://transequality.org/Resources/NCTE_ TransTerminology.pdf

7. A.R. Patel, ‘India’s Hijras: the Case for Transgender Rights’, Geo. Wash. Int’l L. Rev., 2010.

8. PUCL, Human Rights Violations Against the Transgender Community: A PUCL Report, 2003; available at http://www.pucl.org/ Topics/Gender/2004/transgender.htm

9. Karnataka Police (Amendment) Act, 2011; available athttp://www.kar.nic.in/finance/gos/othactrul/THE%20KARNATAKA% 20POLICE%20ACT,%201963.pdf

10. V. Lal, ‘Not This, Not That: The Hijras of India and the Cultural Politics of Sexuality’, Social Text 61: Out Front Lesbians, Gays and the Struggle for Workplace Rights. Duke University Press, 1999.

11. NALSA vs. Union of India and Ors., Writ Petition (Civil) No. 400 of 2012.

12. Pant vs. Nepal, Writ. No. 917 of the Year 2064 BS (2007 AD), translated in Nat’l Jud. Acad.L.J., 2008.

13. Khaki, A. v. Senior Superintendent of Police, Supreme Court of Pakistan, 2009.

14. Human Rights Law Network, ‘Sexual Minority Rights’; available at http://www. hrln.org/hrln/images/stories/pdf/HRLN% 20Compendium%20Part-6.pdf

15. R. Kapur, ‘Out of the Colonial Closet, But Still Thinking "Inside the Box": Regulating "Perversion" and the Role of Tolerance and De-radicalizing the Rights Claims of Sexual Subalterns’, 2 NUJS Law Rev. 381, 2009, p. 384.

16. Ibid., p. 385.

17. L.H. Thompson, et al., ‘Heterogeneity of Characteristics, Structure, and Dynamics of Male and Hijra Sex Workers in Selected Cities of Pakistan’, Sex Transm Infect,Vol 89, 2013.

18. UNDP, ‘Hijras/Transgender Women in India: HIV, Human Rights and Social Exclusion’, 2010; available at http://www.undp.org/content/dam/india/docs/hijras_transgender _in_india_hiv_human_rights_and_social_ exclusion.pdf

19. World Professional Association for Transgender Health, ‘Standards of Care for the Health of Transsexual, Transgender, and Gender-Nonconforming People’, Intl. J. of Transgenderism, Vol. 13, 2011, p. 171.