Open Access Research Article
SEXUAL ORIENTATION, GENDER IDENTITY AND RIGHT TO HEALTH. BY: - Z. SASHA. L.
Published Paper
Article Details
The Dehumanization of human life with regards to Gender Identity.
AUTHORED BY: - Z. SASHA. L.
ABSTRACT.
Human beings have sexual orientation and
gender identity. In this era, where (our) human rights are being discriminated and not protected, people are facing a lot of pressure to come out and talk about it the main reason to this is - Yes, we can point out that ‘RELIGION’
and ‘SOCIAL NORMS’ have been playing a big role in our lives, right from early age we were taught and told about
our ‘real’ identity and side by side we ought to obey what’s written in our religious books and this is the most
important part. Alongside, there are
also scientific facts which talks about the sexual orientation and gender
identity of a human being. To add,
health is the essential right of life; and every human being who possesses life are entitle to health.
Hence, this paper seeks to give an approach of right to health in relation to sexual orientation and gender identity
from a socio – legal point of view.
KEYWORDS: LGBTQ, Religion, Social norms,
Health, Violence.
INTRODUCTION.
The Universal
Declaration of Human Rights lays out the key principle of modern human rights, declaring, “All human beings are
born free and equal in dignity and rights.”[1] Thus, be it the international or national human rights
convention they all protect the sexual orientation and gender identity
of a human being. We might have many laws or organisations, for example the LGBTQ
community or the HIJRA Community to protect these people belonging to such communities, yet we have heard of many cases that these people belonging to such a community
have been stigmatised, abused, raped or for extreme cases are being killed at their homes, workplace, religious
places, health centre, etc. this is simply
because society can’t accept them or the main reason is that our holy books
have taught us that it is a sin to
behave like the opposite sex or live a life of the opposite sex. Thus, most religious places don’t accept
the LGBTQ community as these people goes against
their religious norms. And when it comes to health centre, most medical workers don’t know how to treat them or won’t
treat them at all, the main reason being - they’re confused as to which gender identity should
they consider them.
WHAT IS SEXUAL
ORIENTATION AND GENDER
IDENTITY?
Sexual orientation is different from gender
identity. Firstly, sexual
orientation is whom you are attracted to, with whom you want to
build a physical or mental relationship with be it a male or female that includes a lesbian, transgender, gay etc.
Secondly, gender identity tells you
about “who you are” whether you’re a male, female, genderqueer, etc. This means
that being transgender (feeling
like your assigned sex is very different from the gender you identify
with) isn’t the same thing
as being gay, lesbian, or bisexual.
There are a bunch of identities associated with sexual orientation:
·
People who are attracted to women) often
call themselves straight
or heterosexual.
·
People who are attracted to people of the same gender often call themselves
gay or homosexual. Gay women may prefer
the term lesbian.
·
People who are attracted to both men and women
often call themselves bisexual.
·
People whose attractions span across many different gender
identities (male, female, transgender, genderqueer, intersex, etc.) may call themselves pansexual or queer.
·
People who’re unsure about their sexual orientation may call themselves questioning or curious.
The
Scientific Context: Being a man or a woman is a matter of gender identity,
not a simple matter of a chromosomal algebra.
Certainly the genes on our chromosomes contribute to our development, but they
don’t simply dictate our gender
identities as boys or girls, men or women.
The X and Y chromosomes are called “sex chromosomes” because they contribute
to how a person’s sex develops. Most males have XY chromosomes and
most women have XX chromosomes. But there
are girls and women who
have XY chromosomes. This can happen, for example, when a girl has
androgen insensitivity syndrome. And there are boys and men who have XX chromosomes. This can happen, for example,
when a gene on the Y chromosome
ends up on an X chromosome, causing that X chromosome to function more like a
Y.[3]
DISCRIMINALIZING OF THE LGBTQ COMMUNITY.
By now we all
know what Section 377 of the Indian Penal Code is all about, but for some who are still unaware what this Section is
all about, allow me to explain in brief. well according to the IPC Section 377
categorised consensual sexual intercourse between same sex people as an “unnatural offence” which is “against the order
of nature”. It prescribed a punishment of 10 years imprisonment. Thus:
377. Unnatural
offences.—Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal,
shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine. Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.[4]
With a historic move in
the Indian legal system, this Section
377 of the Indian Penal Code, 1860
which was a ‘Victorian law’ was struck down by a five-bench Judge from the Indian declaring it to be unconstitutional on the 6th September 2018, it was triumph for the
LGBTQ community. They found that Section 377 discriminates against individuals
on the basis of their sexual
orientation or gender identity, violating Articles 14 and Article
15 of the
Constitution. Further, it was also ruled that Section 377 violates the rights to life, dignity and autonomy of personal choice under Article 21. Finally,
they found that it inhibits an LGBT individual’s ability to
fully realize their identity, by violating the right to freedom of expression under Article 19(1)(a)
of The Constitution of India.
With everything
being said in the above paragraphs, we still find that even today the people belong to the LGBTQ Community and the Hijra Community, are still being stigmatized,
decriminalized, abused, raped and even to the extent of being killed. We still hear of cases that men who are transgender
are being taken out from their work place and
being beaten up in roadside by men, some are not being accepted in the
fashion sogayciety, activist being
treated as prisoners and being kept in jail
simply because of their sexual orientation.
Thus, for some people belonging to this
community, they still find it a
hard time to express their own
gender identity and we still find them hiding behind their closet.
The Naz Foundation (India)
Trust challenged the constitutionality of Article 377 under Article 14, 15, 19 and 21[5] before the Delhi High Court. The Foundation
contended that Section 377 reflects
an antiquated understanding of the purpose of sex, namely as it means of
procreation, and has no place in a modern society.
Further, the police had weaponized the provision, which impeded efforts
aimed at preventing the spread of HIV/AIDS.
The Foundation cited an instance in 2001
in Lucknow where HIV prevention workers, who were distributing condoms to homosexual men, were arrested
on the allegation that they were
conspiring to commit an offence. The Naz Foundation also argued that the provision was being misused to punish consensual sex acts that are not peno-vaginal.[6]
There has been an increased rate of
discrimination and stigmatization when it comes
to the health of these people, for those who can acquire health care without any issues, then it’s a good thing. But for those
people living in places where discrimination is high they tend to become depressed, have suicide ideation and other mental disorders.
When it comes to people living in places
where the socio-economic rate is low, women who
are lesbians and transgender are more prone to diseases such as HIV/AIDS/STDs
than those living in places where the
socio-economic rate is high.
A recent study from southern Africa showed
that one-third of 591 participating women who
had sex with women had experienced sexual violence, demonstrating HIV risk for
a population previously considered
exempt; moreover, there was a 10% self-reported rate of living with HIV.[7] the
UN High Commissioner for Human Rights has emphasized that homophobia (the irrational fear of and
hatred of lesbian, gay, and bisexual people) should be considered as significant and comparable to sexism, racism, or xenophobia
THE HIJRA COMMUNITY.
We are all aware who the ‘Hijras’ or ‘Eunuchs’
are, we have all seen them in the trains and in the roads especially when there’s a traffic jam, we all
noticed them with their flashy saris,
bright makeup and their bawdy songs, thus these third gender belong to a small minority.
The question is ‘Who are these ‘Eunuchs’ from the mother’s
womb? Are they really naturally born this way? Who are these manmade Hijras?
Firstly, we shall
understand the meaning or terminology of the term ‘Eunuch’ or ‘Hijras’. The
Urdu and Hindi word hijra may alternately be
romanized as hijira, hijda,
hijada, hijara, hijrah and is pronounced [???d??a?]. This
term is generally considered
derogatory in Urdu and the word Khwaja Saraa is used instead. Another such term is khasuaa (????) or khusaraa (?????). In Bengali hijra
is called ????T, hijra, hijla, hijre, hizra, or hizre. The eunuchs
can
be termed
as male to
female (MTF) transsexual.
·
Religious context on Eunuch:
Who are those eunuchs “so born from their mother's
womb”. And are they the same as those
For there are some eunuchs, which were so born from [their] mother's
womb: and there are some eunuchs,
which were made eunuchs of men: and there be eunuchs, which have made themselves eunuchs for the kingdom of
heaven's sake. He that is able to receive [it], let him receive [it].
spoken of in Isaiah 56:4-5?
For thus
saith the LORD unto the eunuchs that keep my sabbaths, and choose [the things] that please me, and take hold of my
covenant; Even unto them will I give in mine house and within my walls a place and a name better than of sons and of
daughters: I will give them an everlasting name, that shall not be cut off.
Eunuchs are those without the ‘equipment’ to
have sexual relations, not to include those who
call themselves homosexual. Eunuchs, because they lacked some necessary
equipment to have sexual relations
therefore they could not have sons or daughters, hence this scripture where the Lord promises them
something better than sons or daughters in His
house.
Category
1 -those born eunuchs from their mother's womb. This means those men born without the necessary physical equipment
to have sexual relations that will end in possible pregnancy.
Category
2 - Eunuchs made that way by men. This means some men, through acts of war, etc. were actually made so that they could
not have sexual relations. This caused them to be placed as overseers in harems of kings, where they were
trusted not to have relations with any
of the women, because they actually couldn't. Making eunuchs of men captured in
war, was not an uncommon
practice in antiquity. Not for example,
the Bible record
of the slaughter of ‘all the
male children’. This is another way Kings conquered certain people groups,
by eliminating generations of males, within that people group.
Category
3 - Men who made themselves eunuchs for the kingdom of heaven’s sake. This means that some men like Paul, lived
celibate lives, although he had the right to have a wife, (and Paul may
have had a wife at one time, because
of certain Jewish groups he wrote
that he belonged to) Paul made himself ‘like a eunuch’ for the sake of the
gospel. These words may also mean
that some men actually 'castrated themselves' physically, for the sake of the kingdom
of God.
Homosexual could not be included in the eunuch category at all, because
homosexuality is something that is
expressly forbidden and called sin, by both the old and new testament, and
does not involve dismemberment of any kind. Homosexual attraction is not
castration.[9] Even in the Mahabharata,
it’s written that in Indralok, Arjuna was propositioned by apsara Urvashi, however, he addressed her as a
mother which annoyed her. She cursed him that he would become a eunuch. When Indra came to know about this, he told Arjuna that the curse would serve him as a boon during
the one year stay in hiding and after spending that period he would regain his masculinity. After spending 12 years
in the forest, Pandavas spent the
13th year of exile incognito where Arjuna made use of the curse and lived as a eunuch named Brihannala.
According to one
article ‘Eunuchs not always born but made’[10] which was published in The Times of India, it was stated that
only one in a lakh are naturally born a eunuch, statistics do not reveal how youngsters are being kidnapped by
the gurus or paid agents and indulge these youngsters into drugs thus leading them into homosexuality and risky operations.
Majority of these
Hijras are being made to work as sex workers, one Kirpal who was being sold to the Eunuchs by his employer,
though he had to work as a sex worker, he was
luckier, as the Sabha saved him from the castration.
·
Medical Health Context:
There has been an increased rate
of prostitution in the Hijra community, which sadly leads to the high risk of sexual diseases such
as HIV/AIDS. They are more likely to have mental health issues than those who have had male to male intercourse.
They are vulnerable to alcohol,
psychiatric disorders and other disorders, despite the issues that they are
facing the main problem is that
these hijras are scared to seek help due to stigma from the health professionals.
From the limited mental health studies that
exist, issues with gender identity are occurring theme. A
cross-sectional study of 50 hijra women in Mumbai showed that 84% of participants met criteria for gender identity
disorder according to DSM-IV-TR. This finding was supported by a subsequent qualitative
study, in which researchers interviewed eight
hijra in Bangalore, India,
regarding what factors and unique
experiences contributed to their
well-being. Among this small sample size, there appeared to be a persistent
need for sex change and gender change
because they felt discordance between their internal and external identity. Other contributors to well-being among this sampling
were joining a gharana and finding a community of similar people.
Aside from discordance between gender
identity and natal role, there appear to be several socio-cultural stressors for the hijra that predispose them to
mental health issues. These include
family pressures to conform to gender norms, coming to terms with sexual
identity and orientation, and
migration to cities with strong hijra communities. Poor self- and social acceptance as a teenager, traumatic
transitions, and physical, verbal, and sexual abuse from family and law enforcement were also major stressors. The hijra continue
to be disadvantaged within society as evidenced by the barriers to
obtaining voter identity cards and ration cards, as well as acceptance to educational institutions.
The hijra women
commonly encounter a wide variety of
discriminatory attitudes and institutional
difficulties in meeting their basic needs or in having their gender identity respected. This discriminatory attitude
toward the hijra is extremely
invasive and destructive for their mental health and has created
a strong sense of loneliness.[11]
Thus, these Eunuchs
are being view by different eyes from different people.
CONCLUSION.
India does not have a proper law to protect
the LGBTQ community; we cannot find any anti-discrimination
laws, nor proper medical health laws to protect the people belonging to the LGBTQ Community or the Hijras
Community. Even if the Constitution prohibits any sort of discrimination, we can say that, that injunction only
applies to the Government and its instrumentalities.
Thus, these communities are an integral
part of the Indian Society;
they are at a disadvantage when it comes to quality of
health care. Even if they are a minority group, there has been an increasing rate of sexual transmitted
diseases. We have seen many awareness programs on HIV/AIDS and
programs on mental health – It is important to take the need of gender identity and sexual orientation when it comes
to health care and patient care.
REFERENCE:
2. Study
Guide: Sexual Orientation and Human Rights (http://hrlibrary.umn.edu/edumat/studyguides/sexualorientation.html)
3. Barbara Bavis, The
Law of Gender Identity and Sexual Orientation: A Beginner’s Guide (last updated June 9, 2015) https://blogs.loc.gov/law/2015/06/law-of-gender-identity-and- sexual-orientation-a-beginners-guide/
4. Sexual Orientation, Gender Identity and International Human Rights of Law (Practitioners Guide No.4) https://www.refworld.org/pdfid/4a783aed2.pdf
5. Alexander Müller, Health for All? Sexual Orientation, Gender Identity, and the Implementation of the Right to Access
to Health Care in South Africa (last updated December 2016). https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5395001/#r18
6.
Constitutionality of Section
377 IPC Navtej
Singh Johar vs. UOI; Akkai Padmashali
vs. UOI; https://www.scobserver.in/court-case/section-377-case
7. Sandfort
T., Baumann L., Matebeni Z., Reddy V., Southey-Swartz I. “Forced Sexual Experiences as Risk Factor for Self-Reported HIV Infection among Southern African
Lesbian and Bisexual
Women”.
9. Shveta Bhagat, Eunuchs
not always born but made (last updated September 5th 2005)
http://timesofindia.indiatimes.com/articleshow/1219979.cms?utm_source=contentofinteres t&utm_medium=text&utm_campaign=cppst
10. Harmisha Chauhan, Lesser-known captivating facts about Mahabharata which will leave
you stunned (last
updated April 18th 2020). https://www.tellychakkar.com/tv/tv- news/lesser-known-captivating-facts-about-mahabharata-which-will-leave-you-stunned- 200418
[1] The Universal Declaration of Human Rights (adopted 10 December 1948), UNGA Res. 217
A(III) (UDHR) art.1.
[2] https://www.plannedparenthood.org/learn/sexual-orientation/sexual-orientation (last visited October).
make-you-a-woman/
[4] Section 377 of the Indian Penal Code, 1860.
[5] The Constitution of India.
[7] Sandfort T., Baumann L., Matebeni Z., Reddy V., Southey-Swartz
I. “Forced Sexual Experiences as Risk Factor
for Self-Reported HIV Infection among Southern African
Lesbian and Bisexual Women.
[8] KJV Holy Bible
[9] https://hermeneutics.stackexchange.com/questions/5420/who-are-eunuchs-of-their-mothers-womb
[10] https://timesofindia.indiatimes.com/city/delhi/eunuchs-not-always-born-but-made/articleshow/1219979.cms
[11] https://ajp.psychiatryonline.org/doi/10.1176/appi.ajp-rj.2017.120504
Article Information
SEXUAL ORIENTATION, GENDER IDENTITY AND RIGHT TO HEALTH. BY: - Z. SASHA. L.
Authors: Z. SASHA. L.
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/07/15
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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