THE OTHERS IN GENDER COLUMN: AN OVERVIEW OF THE LIFE OF TRANSGENDERS IN INDIA. BY - STUTI TRIPATHI
THE OTHERS IN GENDER COLUMN: AN
OVERVIEW OF THE LIFE OF TRANSGENDERS IN INDIA.
AUTHORED BY - STUTI TRIPATHI
Maranon says that, “There is scarcely
any human being whose sex is not tainted by a doubt or atleast a shadow of
doubt[1].” LGBTQIA+
group has always been an important part of our society, however our society and
justice system has time and again failed them, discriminated against them and
treated them as unequal. The justice system of India reached a milestone when
the honourable supreme court passed the ruling of National Legal Services
Authority Vs Union Of India[2]
recognising and declaring the rights of third gender. The supreme court also
recognized the right of individuals to affirm their “self-identified” gender.
Gender dysphoria is a major problem suffered by transgender people; it is the
feeling of one’s mind and gender identity not being in sync with their assigned
gender. Gender dysphoria can cause individuals to feel distress. It is central
to various problems faced by members of LGBTQIA+ community.
The Hijras Of India
While the concept of a non binary
gender is just now being discussed in the west, India has had a long history of
such individuals that neither recognise themselves as men nor women. Indian
history is filled with mythology, folklore and religious depictions of such
individuals that embody the qualities of both men and women. In Indian society
the non-binary individuals, more commonly known as the “third gender”or the “
hijras” have always had an important
role, from considering a third-gender person’s blessing to bring good luck to
viewing them as religious symbols, the society has different notions of the
hijras. The hijras have been an important part of indian religious texts like
the Ramayana and the Mahabharata, they have been depicted in heroic like with
many references of them possessing god like powers.Even during the mughal rule
the hijras held a place in court, many mughal rulers were patrons of the third
gender. The Hijras of India always held a respectable place in the society. The
Hijra identity however, is complex with many individuals born as intersex or
those who have removed their male genitalia as an offering to goddess Bahuchara
Mata, then there are others who decide to transition from the sex assigned to
them at birth. It is difficult to put a label on the sexuality of these
individuals, they are known and identified by different names in different
parts of the country. The hijras embrace a feminine personality as reflected by
their choice of dressing and mannerism. The hijras in India can be seen as a
transgender equivalent of the west, however the major difference between them
is the ritual of leaving home and getting accepted by a clan of hijras, led by
an elder known as “guru ji”. Thus the western notions on transgenders are
fundamentally different from the Indian.
Considering the significant history
of transgenders in India it comes as a shock that the society has started
treating them as outcasts and made them a subject of gender based
discrimination and oppression. The Indian transgenders experienced a dark
period during the British rule, in the 200 year long rule the British
government declared transgenders as criminals and ordered them to be arrested
at sight. British officials began considering eunuchs "ungovernable".
Commentators said they evoked images of "filth, disease, contagion and
contamination". They were portrayed as people who were "addicted to
sex with men". Colonial officials said they were not only a danger to
"public morals", but also a "threat to colonial political
authority"[3]. The
British bias and disregard of the third gender enticed a stigma against the
third genders in Indian society. The third gender has henceforth been subject
of oppression, discrimination and numerous hate crimes.
Modern India and the problems of Transgenders
Indian Supreme Court while delivering
the judgement of NALSA Vs Union of India, recognized the rights of transgenders
for the first time. While delivering the 2014 Judgement Justice K.S.
Radhakrishnan said, "Transgenders are citizens of this country ... and
recognition as a third gender is not a social or medical issue but a human
rights issue."[4] The constitution of india also
guarantees freedom against discrimination on the basis of gender[5]. The
Indian government has however failed to ensure that these rights granted to
transgenders are enforced, the Indian society lacks awareness about the
transgenders and treats them as outcasts abusing and ostracising these
individuals to make a living out of prostitution or begging. Majority of
transgenders in India don't hold a bank account and are deprived of jobs,
education and healthcare. The transgenders cannot access healthcare and other
services that are designed around the cis-genders. By 2014 judgement and
addition of the term “others” in the election ballot and identification
certification, India has provided an umbrella term to cover all the non
cis-gender individuals but has made little to no effort in their inclusion in
the society. On the other hand the transgenders and transsexual population is
trying to break free of age old shackles of gender and affirm their identity.
The Indian Supreme court has upheld the right of individuals to change their
assigned gender to the one they identify with.In order to understand and
resonate with the transgenders of India it is important to study different
aspects, processes and reasons behind gender change.
Psychology behind transsexualism
An important aspect of transsexuals (the
individuals who don't feel that their assigned gender is in sync with their
self identified gender) is the psychological assumption of their sex.
Individuals often change their attire and conduct to feel more in touch with
their identified gender. These individuals; transsexuals often have the feeling
of not belonging in their own body,thus in order for them to feel comfortable
they choose to undergo a sex reassignment surgery that would make their
physical appearance align with their self identified gender and make them feel comfortable.
In order to feel confident in one’s body the perception of self should match
with how others perceive the individual, being stuck in a body that does not
align with mind is a matter of great concern. Gender is a societal construct
that should not hinder one's right to express themself. Transsexual feelings do
not always imply a desire to undergo a sex reassignment surgery but an
individual’s wish to adapt the likes and mannerism of the self identified
gender. The individual planning to get a sex change surgery has to consult a
psychiatrist to get a clear diagnosis that the sex perceived by them is the
same that they wish to change to. This diagnosis helps the individual to get a
clear picture about what they wish to do with their body, additionally it also
helps in recognizing that whether the individual desires to undergo complete
Sex Reassignment Surgery or they only wish to medically enhance parts of their
identified sexuality.
Sex Reassignment Surgery (SRS)
Sex reassignment surgery is a series
of medical procedures which improve the physical appearance of a transsexual making
them more comfortable in their body. The Transgender Persons (Protection of
Rights) Act, 2019[6] was
brought to ensure the welfare of transsexuals and to protect their rights. It
is under this act that the individuals are given a right to self perceive their
gender identity, it also empowers the individuals to ask for a gender
certificate from the district magistrate. In the judgement of Neha singh vs
State of UP and 2 others[7] The
Allahabad High Court said that it is the constitutional right of an individual
to change their gender through a sex reassignment surgery.
In order for transsexuals to live
comfortably in society with their self identified gender they have to be aware
of the legal and medical implications of sex reassignment surgeries. A sex
reassignment surgery aims to modify the physical features of an individual
according to their identified gender, a SRS can be of two types a male to
female sex reassignment surgery or a female to male sex reassignment surgery
additionally there are other aspects of a gender affirmation procedure like a
hormone therapy, puberty blocker and voice therapy, each of these procedure is
made to target various preferences and demands of transsexuals. The individuals
also have the choice to target a singular part of their body and work on it a
facial reconstruction surgery for instance would help in attaining facial
features that align with the self identified gender, whereas a top or chest
surgery and a bottom or genital surgery will help in aligning other parts of
body with the self identified gender of an individual. There are also some
legal procedures that an individual can fulfil to socially transfer themselves
to their self identified gender like legally changing their names and pronouns.
Likewise an individual can change their attire and mannerism to align with the
gender that resonates with them.
Legal procedure for gender change surgery in India
All Indian citizens above the age of
majority have the right to change their gender and socially transfer themselves
to their self identified gender. Indian citizens have a right to undergo sex
reassignment surgery if they feel that they do not associate with the gender
assigned to them at birth. Before undergoing the surgery an individual has to
go through a set of procedures. Firstly doctors and psychiatrists determine
that whether or not the individual is well suited for undergoing a sex
reassignment surgery, this assessment is made keeping in mind that a sex
reassignment surgery is permanent and cannot be reversed also the psychiatrists
are required to recognize what an individual has thought of himself to be all
along, a conception to which his autonomy will now confirm[8].
After an individual has decided that
he has to undergo a sex reassignment surgery and has passed the psychiatric
test he would have to create a gender change affidavit, declaring the change of
gender and name, the affidavit should adhere to the affidavit format prescribed
by the department of publication. This affidavit must be notarized. After the
declaration to the government a individual has to advertise his change of
gender in the leading newspaper of the city, the advertisement's content should
be similar to that of the affidavit. In the next step a duly signed application
has to be filed with the required documents and notified in the gazette. After
the acceptance of the application it would be published in the government's
official Gazette. The individual would now receive a notification which would
serve as the proof of his change of gender.
Gender Recognition Certificates
Individuals can apply for gender
recognition certificates[9] to protect
themselves from any harassment or injustice. This certificate acts as a tool in
safeguarding the individuals, it protects the individuals from social and
economic injustice. This certificate helps transsexuals in living affirming
their self-identified gender in the society and live their life comfortably.
For getting a gender recognition certificate an individual should be of the age
of majority. These certifications have however been a topic of debate among
indian transgenders, the entire procedure to advertise a gender change and
change of name in the society could subject the individual to social scrutiny
and segregation.
Gender reassignment surgery on Minors
There is no clear consensus on
whether minors should be allowed to undergo sex reassignment surgery in India
or not. The legal position on the matter is still developing, the issue of
minors undergoing a sex reassignment surgery has been discussed in the courts
continually. India lacks a statute to deal with this matter, the rulings of the
court however provide a precedent as to what should be expected in this case.
The state government of Tamil nadu
following the direction of high court of madras in the case of Arunkumar Vs
Inspector general of Registration[10] banned
gender affirming surgeries on minors except for in life threatening situations.
In the case of arunkumar the madras high court relied on NLSA Vs Union of India
and stated that no individual can be compelled to undergo medical procedures
that could alter their gender[11]. This
ensured that a child’s dignity, freedom and opportunity to develop in a healthy
manner is not compromised as per article 39(f) of the constitution[12].
The indian judicial system has also
recognized the importance of free consent while undergoing a sex reassignment
surgery, in the case of X Vs Director of health services[13]
brought in front of the High Court of Kerala the court held that a minor child
cannot give free consent, thus performing a life altering surgery on a minor
cannot be allowed.
It is therefore clear that the sex
reassignment surgery cannot be performed on minors as they are incapable of
giving consent, it should be kept in mind that sex reassignment surgeries are
irreversible in nature and once performed cannot be reperformed, thus giving a minor
an opportunity to grow in a healthy manner and then decide the future of his
anatomy when he is capable in the eyes of law seems to be the most appropriate
path.
Conclusion
A man’s identity is his greatest
asset, in order to feel comfortable in his own body his mind and body should be
in sync with one another. It is important to feel safe and accepted in order to
lead a comfortable life in society. Our constitution has given individuals an
option to live their life according to their self identified gender, however
just possessing a right does not guarantee its enjoyment, the right should be
enforced and accepted by the society. There is a lot of ambiguity surrounding
the rights of LGBTQIA+ individuals and an urgent need to constitute appropriate
statues to uphold them. India has come a long way in its pursuit of transgender
rights and it yet has a long path to cover. India lacks awareness in matters of
LGBTQIA+ community and thus the stigma, in order to ensure that the non cis
genders in India get the same opportunities as the cis genders, the government
has to start several awareness campaigns and constitute strict laws against
discrimination, hate crimes and violence towards the transgender community.
Representation alone can help in unliftingthe state of transgenders in india.
By cultivating and promoting an environment where people view others just as
individuals irrespective of their caste, class, gender, sexuality and social
standing, India would be able to build a society based on mutual respect and
cooperation. It is then that India will truly embrace its diversity.
[1] The Evolution of sex, 266 (1932)
[2] (2014) 5 SCC 438
[3] How Britain Tried to erase India's third gender, BBC.
[4] National Legal Services Authority Vs Union Of India,
2014
[5] Article 15, Constitution Of India
[6] The transgender persons (protection of rights act ),
2019
[7] Neha Singh vs. State Of U.P. And 2 Others 2023
LiveLaw (AB) 276
[8] Douglas k smith, ‘ transsexualism sex reassignment
surgery and law’ note 13 at 967-968
[9] The gender recognition act , 2004
[10] Arunkumar & anr vs inspector general of
registration & ors 2019
[11] National legal service authority Vs Union Of India,
2014
[12] 39 (f),
constitution of India
[13] X Vs Director of health services, SCC 2023