In search of gender utopia

The transgenders face societal and legal discrimination but things are changing gradually, says Himanshu

The Supreme Court of India, on April 15, 2014, recognised a third gender that is neither male nor female, stating “Recognition of transgenders as a third gender is not a social or medical issue but a human rights issue.” Despite the recognition, the problems faced by them are yet to disappear.

The word transgender is an umbrella term used to describe people who identify with a different gender than the one assigned to them by birth. In addition, to including people whose gender identity is the opposite of their assigned sex (trans men and trans women), this term also includes people who are not exclusively masculine or feminine (people who are Intersex, gender queer or non-binary, including bigender, pangender, gender fluid, or agender). Being transgender is independent of sexual orientation as they may be heterosexual, homosexual, bisexual, asexual or may choose not to define their sexuality.

Although the Constitution provides for the fundamental right to equality, tolerates no discrimination on the grounds of sex, caste, creed or religion and guarantees political rights and other benefits to every citizen, people of the third gender (transgenders) continue to be ostracised and mistreated.

The archaic principles and orthodox mind-sets in the country have deprived them of several rights that Indian citizens take for granted, such as: the right to vote, to own property, to marry, to claim a formal identity, education, employment, health and so on or get a passport and a ration card, a driver’s license. But beyond the problems of everyday functioning social as well as emotional problems faced by transgenders in India are:

• Discrimination — Most Indian families take umbrage if the male child behaves in way that might be feminine or different as compared to the gender role that they have to conform to. Subsequently, family members may threaten, scold or even assault their ward if he behaves like a woman or cross-dresses. Some parents may completely disown and evict their own child for crossing the prescribed gender norms of the society and for not fulfilling the roles expected from a male child.
• Moreover, they face discrimination even in the healthcare situations. Types of discrimination reported by the transgender communities in the healthcare settings include deliberate use of male pronouns while addressing them, registering them as ‘males’ and admitting them in male wards in hospitals, humiliating them by making them stand in the male queue, verbal harassment by the hospital staff and other patients, lack of healthcare providers and doctors who are sensitive to and are trained in providing treatment to transgender people and even denial of medical services.
• Social problems — The Transgender community still faces considerable stigma and are characterised as being mentally ill, socially deviant and sexually predatory. They are often denied jobs or are heckled by fellow employees. In some cases, transgender people get fired by some companies as businesses fear losing investors should they find out that a transgender is in a leadership role. They are also denied education in most schools as they do neither male nor female. These children are shunned by classmates and teachers alike. This forces transgenders into poverty and begging.
• Disrespect — Transgenders are disrespected in almost every aspect of life except at the birth of a child or when they are called to bless the newly weds. Apart from this, they are treated badly and oppressed by people in power and they struggle for social justice primarily because of their identity. They are often insulted, punished, abused, assaulted or cursed in public. They are forbidden from entering religious places, public places like hotels, restaurants, theatres, parks etc. One of the most common problems they face is that of rape followed by physical and verbal abuse.
• Identity Documents — Transgenders lack accurate identity documents and this impacts every aspect of their life. They do not have access to emergency housing, travelling, subsidised rations, medical facilities or other public services. Although this scenario is gradually changing as transgenders are being issued identification documents but many still remain outside the ambit.
• Poverty and Prostitution — Transgenders are considered ‘dirty’, ‘impure’ or ‘filthy’ and people steer clear of them. They are denied respectable jobs, even if they have the qualifications. This forces them to beg for a living or join a prostitution ring. These choices are forced pon them becuase of the society’s attitude.
• Personal Questions — Transgenders are often asked questions that can be considered impolite. People ask, “What’s your real nameIJ” or “Did you change your partsIJ”or “Which toilet do you go toIJ”with impunity without any hesitation or respect for their privacy. Their bodies are subject to scrutiny by everyone because they are different. They are denied gender-based bathrooms akin to their gender expression and are not  trusted around children, no matter how hard they try.

Despite the continuing soceital discrimination, the government is trying to make interventions and recognises transgender people by providing them with identification papers. There are some documents where a ‘transgender’ or ‘other’ option is available under the gender marker in legal documents.

Voter’s identity card:

In 2013, the Election Commission introduced an ‘others’ gender option for voter identity cards. Now, there is a Third Sex option available in the application form for a Voter’s Identity Card.

Driving license

There is a ‘Transgender’ option available on the application form to obtain a Driving license.

Ration card

There is a ‘Third Gender’ option available on application for a ration card. However, there is an on-going battle for transgender people to select the gender they identify with.

Bank account and records

Transgender people may apply for a bank account irrespective of their gender or identity, after a ruling came in 2015 allowing an option of ‘transgender’ on the forms.

Debit / credit card

Transgender people can also apply for debit and credit cards related to their bank account with no hassle.

PAN Card

The Central Board of Direct Taxes amended Income Tax rules and taxpayers will now have the option to identify themselves as transgenders while applying for a Permanent Account Number.

Passport

After the ruling in 2015, transgenders will have the option to identify themselves with a ‘third gender’ on the passport application.

Birth certificate

Transgenders will now be able to modify their birth certificate to reflect the gender they identify with.

Railway reservation form

It has been decided by the Government of India to include the third gender/transgender option in reservation /cancellation requisition form of the Indian Railways.

Aadhar Card

Aadhar cards recognise a third gender and so transgender may apply for one under this category.

legislative or Court initiative for protection of Transgenders

The Twelfth Five Year Plan (2012-2017) proposed to empower the third gender by providing them with education, housing, access to healthcare services, employment, skill development classes and financial assistance. In addition to this, it has also proposed that a separate column must be incorporated in all government and non-government records for the use of the third gender. The Ministry of Social Justice and Empowerment along with the Ministry of Statistics and Programme Implementation would be able to map their socio-economic status and progress and improving their living standards to create a better environment for them.

On April 24, 2016, a private member’s bill entitled The Rights of Transgender Persons Bills, 2014 was passed by the Rajya Sabha and introduced in the lok Sabha on February 26, 2016. This bill deals with the different aspects like social inclusion of transgenders in the community, their rights and entitlements in society, financial and legal aid, education and soft-skill development and prevention of abuse, violence and exploitation of Transgender people in India.

In April 2014, in a case brought by the National legal Services Authority against the Union of India, the Supreme Court of India declared transgender to be the third gender in Indian law. The ruling said, “Rarely does our society realise or understand the trauma, agony and pain which the members of transgender community undergo. Our society does not appreciate the inborn feelings of the members of the transgender community, especially of those whose mind and body differ from their biological sex. Our society often ridicules and abuses the transgender community in public places like railway stations, bus stands, schools, workplaces, malls, theatres and hospitals where they are side-lined and treated as untouchables. They forget the fact that the moral failure lies in the society’s unwillingness to contain or embrace different gender identities and expressions, a mind-set which we have to change.”

Justice Radhakrishnan, who passed this historic judgement, said, “These transgenders, even though insignificant in numbers, are still human beings and therefore they have every right to enjoy their human rights and concluded by declaring that:

nHijras, eunuchs or transgenders are to be treated as the third gender for the purpose of safeguarding their rights as authorised by Part III of the Indian Constitution and by the laws made by the Parliament and State legislatures.

nThe right of transgender persons to decide their self-identified gender is also to be upheld and the Centre and State Governments. Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender, howsoever they may choose.

The University Grant Commission (UGC) issued a circular to all the Vice Chancellors of the Universities in Indiaon October 29, 2014, requesting them to include a column for the transgender community in all educational application forms.

Around the world

Argentina broke a record in 2012 by passing a law that is considered to be the highest standard for legal gender recognition. Anyone above the age of 18 years can choose their gender identity, undergo gender reassignment and revise official documents without any prior judicial or medical approval. Children can also do so with the consent of their legal guardians/representatives or through summary proceedings before a judge.

Between the years of 2012 and 2015, four more countries — Colombia, Denmark, Ireland, and Malta eliminated significant barriers to legal gender recognition in their countries.

After a 22-year legal fight by lydia Foybefore Ireland’s High Court in 1997, and again in 2007, Ireland’s 2015 Gender Recognition Bill was a great victory. It was backed by domestic and international human rights organisations that called on Ireland to install a gender recognition procedure based on identity and human rights, not surgeries and expert opinions. Despite the consistent pressure from international authorities, it was not until 2015, after an overwhelming victory on a same-sex marriage referendum, that the government of Ireland instituted the identity-based legal gender recognition.

In an extensive 2007 ruling, Nepal’s Supreme Court ordered the government to recognize a third gender category based on an individual’s self-identified gender. The ruling was based largely on the freshly made Yogyakarta Principles-the first document to collate international principles on sexual orientation, gender identity, and human rights.

In 2009, the Supreme Court of Pakistan ruled that a third gender category was to be recognized in the country, and in 2013, the cabinet of Bangladesh issued a decree recognizing transgenders as their own legal gender.

The Gender Recognition Act (2004) in the United Kingdom recognises the gender identity for transgender communities who have had gender dissatisfaction and have lived in ‘acquired dysphoria’ for more than two years. To legally change their gender, transgender people must send in an application, along with the required documents (such as a medical certificate for gender dysphoria) to the gender recognition panelfor approval.

In 2003, the Parliament of South Africa enacted the Alteration of Sex Description and Sex Status Act, which allows a transgender person who has undergone medical or surgical gender reassignment to apply to the Department of Home Affairs to have their gender altered on their birth certificate. Once the birth record is altered they will be issued with a new birth certificate and identity document, and are considered, in all fairness, to be of the new sex.

(The author is the founder of a Delhi-based govt tech start up)