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The Supreme Court of India passed
a landmark judgment relating to the Transgender Community yesterday. It is a
130 pages long judgment. The Supreme Court discussed the historical background,
mythological background and psychological background of the Transgender
community.
This case is about the
grievances of the members of Transgender Community (for short ‘TG community’)
who sought a legal declaration of their gender identity than the one assigned
to them, male or female, at the time of birth. They prayed that non-recognition
of their gender identity violates Articles 14 and 21 of the Constitution of
India. Hijras/Eunuchs, who also fall in that group, claimed legal status as a
third gender with all legal and constitutional protection.
The petitioners pleaded that TGs
are deprived of social and cultural participation and hence restricted access
to education, health care and public places which deprives them of the
Constitutional guarantee of equality before law and equal protection of laws.
Further, it was also pointed out that the community also faces discrimination
to contest election, right to vote, employment, to get licences etc. and, in
effect, treated as an outcast and untouchable.
Also, under the aegis of the Ministry
of Social Justice and Empowerment, a Committee, called “Expert Committee on Issues
relating to Transgender”, has been constituted to conduct an in-depth study
of the problems relating to transgender persons to make appropriate recommendations
to the Ministry.
I will divide the analysis of
this into 3-4 articles. This article is divided into following parts
1. Who is a Transgender?
2. History of laws during the
British Raj
3. Gender Identity and Sexual
Orientation
4. Conventions, Committees,
Principles and Reports
Who is a Transgender?
Transgender is generally
described as an umbrella term for persons whose gender identity, gender expression
or behaviour does not conform to their biological sex. TG may also takes in
persons who do not identify with their sex assigned at birth, which include
Hijras/Eunuchs.
The court said that Hijras are
not men by virtue of anatomy appearance and psychologically, they are also not
women, though they are like women with no female reproduction organ and no menstruation.
Since Hijras do not have reproduction capacities as either men or women, they
are neither men nor women and claim to be an institutional “third gender”. Among
Hijras, there are emasculated (castrated, nirvana) men, non-emasculated men
(not castrated/akva/akka) and inter-sexed persons (hermaphrodites). TG
also includes persons who intend to undergo Sex Re-Assignment Surgery (SRS)
or have undergone SRS to align their biological sex with their gender identity
in order to become male or female. They are generally called transsexual persons.
Further, there are persons who like to cross-dressin clothing of opposite
gender, i.e. transvestites.
Resultantly, the term
“transgender”, in contemporary usage, has become an umbrella term that is used
to describe a wide range of identities and experiences, including but not
limited to pre-operative, post-operative and non-operative transsexual people,
who strongly identify with the gender opposite to their biological sex; male
and female.
History of laws during the
British Raj
During the British rule, a
legislation was enacted to supervise the deeds of Hijras/TG community, called
the Criminal Tribes Act, 1871, which deemed the entire community of
Hijras persons as innately ‘criminal’ and ‘addicted to the systematic
commission of non-bailable offences’.
Under the Act, the local
government had to register the names and residence of all eunuchs residing in that
area as well as of their properties, who were reasonably suspected of
kidnapping or castrating children, or of committing offences under Section 377
of the IPC, or of abetting the commission of any of the said offences.
Under the Act, the act of keeping
a boy under 16 years in the charge of a registered eunuch was made an offence punishable
with imprisonment up to two years or fine and the Act also denuded the
registered eunuchs of their civil rights by prohibiting them from acting as
guardians to minors, from making a gift deed or a will, or from adopting a son.
Act has, however, been repealed in August 1949.
Gender Identity and Sexual
Orientation
The Court said that Gender
identity is one of the most-fundamental aspects of life which refers to a
person’s intrinsic sense of being male, female or transgender or transsexual
person. A person’s sex is usually assigned at birth, but a relatively small
group of persons may born with bodies which incorporate both or certain aspects
of both male and female physiology. At times, genital anatomy problems may
arise in certain persons, their innate perception of themselves, is not in
conformity with the sex assigned to them at birth and may include pre and
post-operative transsexual persons and also persons who do not choose to
undergo or do not have access to operation and also include persons who cannot
undergo successful operation.
Countries, all over the world,
including India, are grappled with the question of attribution of gender to
persons who believe that they belong to the opposite sex. Few persons undertake
surgical and other procedures to alter their bodies and physical appearance to
acquire gender characteristics of the sex which conform to their perception of
gender, leading to legal and social complications since official record of
their gender at birth is found to be at variance with the assumed gender identity.
The Court further said that Gender identity refers to each
person’s deeply felt internal and individual experience of gender, which may or
may not correspond with the sex assigned at birth, including the personal sense
of the body which may involve a freely chosen, modification of bodily appearance
or functions by medical, surgical or other means and other expressions of
gender, including dress, speech and mannerisms. Gender identity, therefore,
refers to an individual’s self-identification as a man, woman, transgender or
other identified category.
Sexual orientation refers to an
individual’s enduring physical, romantic and/or emotional attraction to another
person. Sexual orientation includes transgender and gender-variant people with
heavy sexual orientation and their sexual orientation may or may not change
during or after gender transmission, which also includes homosexuals, bisexuals,
heterosexuals, asexual etc. Thus, Gender identity and sexual orientation, as
already indicated, are different concepts.
Conventions, Committees,
Principles and Reports
The court cited following
international conventions, committees, principles and reports in this regard:
1. United Nations Committee on
Economic, Social and Cultural Rights in its Report of 2009 speaks of gender
orientation and gender identity.
2. General Comment No.2 of the
Committee on Torture.
3. Article 2 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
in 2008.
4. General Comment No.20 of the Committee
on Elimination of Discrimination against Woman. This committee is responsible
for the implementation of the Convention on the Elimination of All Forms of Discrimination
against Woman, 1979 and 2010 report.
5. Article 17 of the ICCPR states
that no one shall be subjected to arbitrary or unlawful interference with his privacy,
family, home or correspondence, nor to unlawful attacks on his honour and
reputation and that everyone has the right to protection of law against such
interference or attacks.
6. A distinguished group of human
rights experts have drafted, developed, discussed and reformed the principles
in a meeting held at Gadjah Mada University in Yogyakarta, Indonesia
from 6 to 9 November, 2006, which has been unanimously adopted as the YogyakartaPrinciples on the application of International Human Rights Law in relation to
Sexual Orientation and Gender Identity.
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