By: Bhanashree Saikia
“Recognition of transgender as a third gender is not a social or medical issue but a human rights issue. Transgenders are also citizens of India and they must be provided equal opportunity to grow” — Justice KS Radhakrishnan
Human beings are created by the God as equal without any discrimination. But it is the human beings only who discriminate and misuse the human being and treat them as object and the fault lies only on the selfish nature of the human beings. As a girl, it is normal for me to think myself as purely as a female. Just the same, if you are a boy you do not need to think much and normally can accepted as a male yourself. But that’s not acceptable for everyone. ‘Third gender’ is a concept in which individuals are categorized either by themselves or by society, as neither man nor woman. It is also a social category present in societies that recognized the term ‘Third’ is usually understood to mean ‘other’. A person born like a male might feel like a women and vice versa known by various names in India like hijras, eunuchs, aravanis, kothis, joggaas etc. Transgender is normally defined for people whose gender identification, gender expression or conduct does not conform to their organic sex and they feel different from their physical appearances. As a human being transgender gender community is a part of social order and they have an equal right in everything i.e. available to the others in the world. We are proud to be an Indian citizen that our government is taking steps to give a respectful gender identification in the modern society to the transgenders.
Status of transgender in India:
Vedas and Kamasutra, the ancient Indian texts categorize transgender as an individual belonging to third nature neither masculine nor feminine. In Islamic language transgenders are called Khawaja Sara. During the Mughal region, these third gender people placed a very crucial role and considered to be fiercely loyal and possessing the ability to good judgement making capacity and enjoyed life of privilege and royalty. But there was a downfall of the status and the position of these people with the advent of British era in the eighteenth century. The British logic perceived the performances of transgenders as a solicitation for sexual services and recognised them as a threat to the society. According to them, transgender is nothing but a mental disease infected to the Indian males. By nineteenth century, during the British rule, with the section 377 of IPC, 1860 they criminalized penile-non-vaginal sexual acts. The British administration further legislated for their surveillance and control under Criminal Tribes Act, 1871 and made a clear move to remove transgenders as a visible social category by branding them as ‘habitual criminals’ and ‘sexual deviants’
Indian folklore believed in blessings of the transgender community especially after the birth of male child and during weddings, but we are still not able to give them the minimum safeguard to protect them from unwanted discrimination and exploitation in lieu of their blessings. The census process of Indian government did not include transgender for the first sixty four years after independence in its exercise. When the community was given the opportunity to identifying themselves as a third gender, statistically for the first time in 2011 and 4.88 lakh identified themselves as transgenders. Bihar, Uttar Pradesh and Maharashtra are the top three states signified as a highest of self identified transgenders in India. If we analyse the status of the transgender in India we can see that the large part of it resort to begging, extortion, entertainment or prostitution. The transgenders are part of community but most neglected and denied also. Their exclusion starts from their own home. The problems range from verbal and physical abuse to isolation and rejection and denial of family property. Gender identity often makes transgender a victim of exclusion by the society.
Problems of transgender in India:
Education of the third gender community:
“One notable finding of census is the low literacy rate in the transgender community, at 46 percent in comparison to 74 percent literacy in overall population. It is not surprising that the literacy rate is low because it is not uncommon at all people of transgender to drop out of school because of the discrimination they faces” – Anjali Gopalan, transgender activist.
Transgender community faces discrimination in almost every walk of their life. The new ‘Sex’ in Indian Constitution emerges with a major population. They are deprived of social and cultural participation and they have also restricted to access to education which further deprives them of the constitutional guarantee of ‘equality before law and equal protection of law’. There is no formal education for transgender is popular in Indian. As transgenders are primarily excluded from their own family and there is always question of their social acceptance, they are also excluded from school environment. Because of unacceptable environment in society, they become unable to build up their identity in education and future career. Transgenders are hardly educated and do not accepted by educational institutions. Even they are enrolled in an educational institution, they face harassment everyday. Deficiency of adequate education and lack of employment opportunity results in members being force into sex work and begging. It should be mandatory for the government to provide inclusive education for transgender students.
In 21st century also, most of the families do not want to accept their child if he/she is a transgender. A study by NHRC found about 92 percent of transgender is deprived of right to participate in any form of economic activity in country. The study conducted by Kerala Development Society on behalf of NHRC, says transgender people are facing an identity crisis in a gender specific India. They are totally invisible in all spheres of economic activities. Low level of education and social exclusion limits their employment and livelihood opportunities. There are various instances where the society only tries to exclude them where a young film maker in Mumbai’s Jogeshwari was asked to vacate a flat because she was a transgender. Transgender community have been excluded from effectively participating in social and cultural life, economy and politics and decision making process.
No education opportunities leads to unemployment and unemployment leads to prostitution which further made the society become unpleasant attitude towards them. They have been seen in the sex works because they do not have any other sources of income. In prostitution transgender faces more injustice compare to others. Even greater in that profession, they are placed at lower level then other sex workers. Transgender people are too frequently targeted for violence and abuse because of their gender identity. Transgender people in prison are exposed to horrific rates of abuse by both staff and their fellow inmates. The society does not like to allow the transgenders among them or give them resident. So they use to live in the red light areas which ultimately turn then to spoil their livelihood. They are rejected to get enter in the religious places, public places like hotels, park restaurants etc. we the people always trying to neglect and insult the third genders in the society. But we never think to give respect like others instead of ignoring their identity. Transgender usually disrespect in each and every aspects of life except in giving blessing to a child after birth and newly married couple.
The constitution of India provides equality before law and equal protection of law by Article 14. The right to choose one’s gender identity is an essential part to lead a life with dignity which is protected by Article 21 of our constitution. Article 15 says that there shall not be any discrimination on the basis of sex, race, caste, place of birth etc and Article 16 provides for equality of opportunity in the public employment. So transgender cannot be discriminated on the grounds of gender and if anyone does so it will be the violative of the respective protective articles. The courts also protect one’s gender expression appealed by Article 19(1)(a) and held that ‘no restriction can be placed on one’s personal appearance or choice of dressing subject to restrictions contained in Article 19(2). Transgender person (protection of Rights) Act had been passed on 24th April, 2015 and gives all transgender persons the right to live in the community with choices equal to others. But till now we are avoiding the identity of transgender and by doing this we are doing some kind of neglect to our legal system. We should support our legal system for better improvement of third gender’s protection and security.
“It is not their fault that they are born different and there is nothing wrong in India following the rest of the world and provides acceptance, security and wilful inclusion into mainstream India”
The world will be much beautiful when we will be able to make it as no discrimination country. The Constitution of India by Article 14 provides for the right to equality and a legal framework in favour of transgender and other disadvantage and discriminated person. Inspite of having legal framework the present society are not fit to give minimum respect to the transgender community. Therefore we need positive attitude, social acceptance and sensitization of teachers and community so that the third gender community can take breath freely. (The author is an Advocate; Nagaon District Court)