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The Third Gender Sex: Status in India

By Avni Kritika

“I was a normal child, but it’s the world that made me feel different” quoted Laxmi Narayan Tripathi. The society needs to learn the quality of acceptance . They are no different, they are part of us.

Timothy Herbert — Own work

Historically, India has witnessed the presence of the “third sex” i.e., a category of people who do not identify as male or female, but rather as neither, both, or a combination of male and female genders. This difference has made transgender to be discriminated from the mainstream. They are excluded from socio-cultural as well as economical and political spheres.

Transgender persons are those who do not match their gender identity as compared to their sex by birth. Their behaviour or expressions do not align with their biological sex. As stated by the Constitution of India that it is the duty of the State to secure Justice, Equality and Unity for every citizen, yet, the transgender community have been deprived of these fundamental rights.

As it is rightly said that ‘after every darkness, there is light’ so, that has been proved in this scenario as the situation completely turned when the Apex Court passed a judgement in 2014, National Legal Services Authority v. Union of India, where the people belonging to the transgender community were recognised as “third gender”. By acknowledging transgender as a third gender, the SupremeCourt has not only upheld the rule but also has advanced justice to this group, who were deprived of their constitutional rights.

By USAID — USAID Bangladesh

In 2019, The Transgender Persons (Protection of Rights) Bill was passed in the Parliament that prohibits discrimination against transgender in all spheres. Most of the Fundamental Rights provides protection to every person and some only for the citizens of India. The categorization on the basis of sex is an essential element of individuality.

Major troubles that are faced by transgender people are of discrimination, homelessness, lack of educational amenities, joblessness, lack of medical facilities, depression, tobacco and alcohol exploitation, hormone pill misuse and problems associated to marriage as well as adoption.

There have been enactments in law that are in the favor of this section of society. Some of the relevant Acts are as follows:

The Citizenship Act, 1955

Under this Act, the transgender can be a voter and elector if he/she is the citizen of India. The Election Commission of India has made special procedures so that transgender can enrol as an elector. This act does not require and determinate sex or gender identity as a precondition to acquiring citizenship of India in either express or implied ways.

General Clauses Act,1897

In this Act, the definition of “persons” has a wider approach. It defines a person to “include any company or association or body of individuals, whether incorporated or not”.

Registration of Births and Deaths Act, 1969

This Act does not mention specifically anything about sex or gender of a person who is to be registered in case of death or birth. It is a gender-neutral Act. The condition of signifying the sex/gender of a person in case of a birth or death in the Birth or Death certificate, as the case may be, doesn’t seem to be from the provisions of the Act.

The silver lining in Indian Constitution that connects all the Articles that are engulfed in the equality scheme is Articles 14, 15, 16, 19 and 21. The states, in general, ensure that every citizen has equal opportunity to enjoy the life as well as grow as a human irrespective of their caste, creed, race, religion, community, gender and social status. One of the fundamental beliefs of the equality scheme stands with the recognition and acknowledgement of the ‘right of choice and self-determination’.

Photo by Cecilie Johnsen on Unsplash

On July 2, 2009, the Delhi High Court passed a judgment in support of the LGBT community in the landmark judgment of Naz Foundation v. Government of N.C.T Delhi stating that Section 377 of the Indian Penal Code, 1860 which criminalizes homosexuality in India to be unconstitutional and violative of Articles 14, 15 and 21, thus allowing consensual sexual activity between two homosexuals above 18 years of age to be legal. This was challenged in the Supreme Court of India in the case of Suresh Kumar Koushal v. Naz Foundation where the apex court struck down the decision of the previous case.

In National Human Rights Commission v. State of Arunachal Pradesh, it stated that social justice should not be only on papers but should be present in spirits as well that are mentioned in the Preamble, Fundamental Rights and Directive Principle of State policy and thus, it is the duty of everyone to give legitimate recognition to transgenders. Thus, giving recognition to this community and those violating their rights should be penalized.

In 2018, the Supreme Court lifted the prohibition on consensual same-sex intercourse that was prevalent from colonial times in Navtej Singh Johar v. Union of India. Initially, Section 377 of Indian Penal Code was categorized as consensual intercourse involving same-sex people as an “unnatural offence” which was “against the order of nature”. Now, it consents same-sex relations constitutional. Thus, removing same-sex intercourse from the ambit of unnatural offences and thereby, from Section 377 of IPC.

There are certain examples which are discussed below that show that various institutions, states, governmental bodies or corporate bodies have introduced the third gender column thus, increasing the feasibility for this community:

  • Many universities have included the third gender as an additional column in their admission form so it is easier for the transgender students.
  • The RTI application also includes the field for the third gender recognizing the status of transgender people.
  • The transgender community can now seek benefits under the Other Backward Class (OBC) list, irrespective of their community background.
  • They are now unconstrained to be the head of a household thus, allowing them to avail food security benefit through ration card.
  • Even the Indian cinema has promoted the status of transgender people thus, spreading social messages through the movies like Shubh Mangal Zyaada Savdhan, Ek Ladki Ko Dekha Toh Aisa Laga, etc.
  • The advertisement industry has tried to bring out these social issues and has brought awareness amongst the people to give equal social recognition to transgender. Advertisements like Vicks which popularized the tagline “touch of care” which was done by a transgender, Gauri Sawant; it portrayed motherhood for life.

Conclusion

Taking into account, the developments sprouting from the latest verdicts of the court on the concern of homosexuality, it can be rightly said that it has opened the doors to a range of people and diverse communities like that of LGBTQ to come out with their genuine identity with no fright or agony and thus, putting a full stop to the discrimination which they had faced over the years. Gradually, way of life and mindset of people are changing and evolving which will surely accept transgender as equals in the social strata of the society and thus, eradicating the stigma in the minds of the people.

Source: By Delia Giandeini; Unsplash

It has been said by A. Chettiar that,

Sex is what you are born with, gender is what you recognize and sexuality is what you discover.

Avni Kritika, B.A.LL.B(H) Amity University,Lucknow

The author Avni Kritika is an undergraduate law student from Amity University Lucknow Campus. The author is a legal blog writer and has extraordinary interest in conventional fields of law. Apart from law the author has special interest in literature and her love for Keats is endless. Find her on Instagram.

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