Paving the Path from Marginals to the Mainstream – The Apathy of the Transgender Community
February 27, 2022
The Transgender community has had a unique history in India. From holding an exalted position in ancient times to falling to degraded levels later on and finally again putting up a brave fight to reclaim their rights, they have come a long way. For years now, they have been discriminated against, harassed, and denied equal opportunities. Workplaces have been a nightmare for them. Injustices against them start from their birth when many families abandon such children. They are denied quality educational opportunities and even if somehow they find their way into schools and colleges, bullying and harassment make it difficult for them to continue. After education, seeking decent employment is another battle to be fought. But with some recent efforts, change has come. Various legislations and policies have helped them to come out of their closets and claim their rights.
Situation in the Olden Days vs. Situation at present
Traditionally, people who are neither males nor females are called ‘hijras’ in India. In ancient Indian society, transgenders have held respectable and important positions. Many notable personalities in Hindu mythology belonged to the transgender community. As per Ramayana, when Lord Rama was leaving for his fourteen years exile, his followers accompanied him for some distance. After they had come closer to the end of the city, he asked all the men and women to leave. Hearing this all left but the transgender persons stayed. This loyalty shown by them has been commended to date.
Ramayana also mentions a king named Ila who spent half his life as a man and the rest half as a woman. Another canonical Hindu text Mahabharata narrates how the best archer of his time, Arjuna stayed as a transgender for a year in King Virat’s court and taught dance to his daughter and her friends. Since time immemorial, Hindus have also worshipped a deity having characteristics of both male and female. Ardhanarishwara, i.e. a god who is half man and half woman is considered as an incarnation of Lord Shiva.
In fact, Sanskrit, which is considered one of the world’s oldest languages contains three genders in its grammar, i.e. masculine, feminine, and neutral gender. Transgender persons have held a special place in ancient Indian history. Some of them have achieved higher echelons of governance and administration, especially in the Mughal court. This reverence for them still prevails in India in some form. To exemplify this, their presence and blessings on special occasions like marriage and childbirth are still considered auspicious and bring good luck and prosperity. In the Hindu religion, abusing a ‘kinnar’ in any form, whether physical or verbal is considered a sin and purportedly attracts God’s wrath.
But their status has plummeted over the years. The advent of this degeneration overlaps with the birth of British rule in India. The British imposed western ideas and beliefs on Indians. Superficially, the English ideas and lifestyle are projected as being more free and liberal in comparison to Indian values. However, on closer scrutiny, the English have parochial views about morality and decency. They have considered transgender people as unclean and dirty. They imposed this thinking on their Indian subjects as well. To further force it on us, Section 377 that criminalized homosexuality was further incorporated in the Indian Penal Code, 1860, as another obnoxious vestige of the British regime in India.
This beginning of systemic hostility towards the transgenders in policies and attitudes by the British spiraled into a labyrinth of incessant discrimination, alienation, harassment, and economic hardships for the transgender community that remains inescapable till today.
Socio-Economic Conditions of the Transgender Community
The transgender community has been marginalized for a long time now. With minuscule, yet significant successes, they continue to struggle. Their major professions for a protracted-time period have been begging, dancing, and prostitution. Their proportion at mainstream workplaces has been dinky. They have been harassed and discriminated against at workplaces. There were no workplace protections. Most of the high-level jobs remained out of their reach. Police harassment adds to their misery.
Another hindrance in the development of the transgender community is the lack of documentation. The majority of the official data sources collect and provide information in binary formats. As result, they are excluded due to not falling into the rigid molds of society. This deprives them of important services like banking, insurance, etc.
Families are usually seen to have abandoned their transgender children who are then left at the mercy of dysfunctional elements of society. They face sexual harassment, molestation, and trafficking.
Recent events hint at an optimistic transition from marginals to the mainstream of the transgender community.
Immoral Trafficking Prevention Act of 1956 was amended to make it gender-neutral in 1986. As beneficiaries of this act, the third gender people were added along with males and females. Special provisions have also been introduced for extending health benefits to the transgender community. Separate toilets at workplaces and public places have been constructed for their benefit.
The NALSA judgment of 2014 for the first time recognized them as the third gender. Moreover, the 2018 Navtej Singh Johar judgment decriminalized Section 377 of the Indian Penal Code, 1860 which previously declared homosexuality as a crime.
Right for Transgender Persons Act further safeguarded their interests. It declared many forms of discrimination against them as illegal. It was also banned to force them into beggary or leave their homes. It suggested the formation of a committee to look into and safeguard the educational rights of the transgender community. It sought to provide them with scholarships and textbooks among other things. It also recognized them as socially and economically disadvantaged to include them as the beneficiaries of India’s Affirmative Action Plan.
The Transgender Persons (Protection of Rights) Act, 2019 was a step towards recognizing the ‘third gender’ and safeguarding their rights. The Bill was introduced in 2016 and then referred to the Standing Committee on Social Justice and Empowerment before it finally became an act. The Act not only defines who is transgender, but also prohibits discrimination, and recognizes their rights and offenses committed against them.
The Act defines a transgender as someone who falls neither in the category of males nor females or is a combination of the both. Additionally, the person’s gender now should not match the one assigned at birth. Thus, all the people who recognize themselves as trans-men, trans-women, persons with intersex variations, and genderqueers would be covered under the umbrella term ‘transgender’. The Act also provides for a certificate of identity to be issued by the District Magistrate. The certificate would function as identity proof and would confer the rights attached to the person. Thus, everyone has a right to be recognized with a ‘self-perceived identity. However, before the issuance of the certificate, the application must be referred to the screening committee. The screening committee would comprise of the Chief Medical Officer, the District Social Welfare Officer, a psychologist or psychiatrist a representative from the transgender community; and a government officer. Once the application is approved by the DM based on the committee’s recommendations, the applicant would be issued a Certificate of Identity.
The Act also seeks to weed out any form of discrimination against transgender persons in any field, including education, employment, healthcare, access to public goods and facilities, right to movement, right to rent or own property, opportunity to hold public or private office, and access to a government or private establishment which has custody of a transgender person. All public and private entities are prohibited from discrimination against the members of the transgender community in any matter of recruitment or promotion. It also provides that in any establishment having more than 100 employees, there should be a person designated to hear the complaints under this Act.
As per the Act, central and state governments would strive to introduce new welfare measures for transgender persons in order to promote them to earn their livelihoods. This would include their education and vocational training. There should also be separate centers for AIDS detection for them and sex reassignment surgery and hormonal therapy counseling. A comprehensive insurance scheme should also be rolled out for them.
Moreover, the Act also provides for the establishment of a National Council for Transgender which would act as the primary body responsible for advising the government on policies and legislations for the upliftment of the transgender community.
It has also outlined several offenses related to the transgender persons including compelling a transgender person to beg or do forced or bonded labor (excluding compulsory government service for public purposes), denying such person of the use of a public place or residence in the household, village or other places of residence; and inflicting physical, sexual, verbal, emotional or economic abuse. Committing any of these offenses would invite imprisonment of six months to two years.
Despite being a positive and progressive step, the Act is not devoid of uncertainties and controversies. The first problem highlighted is pertaining to the definition of transgender persons. The definition seems inadequate, paying no heed to categories of people like the ones being a ‘male’ or a ‘female’ in a physiological sense but not in the ‘psychological’ sense of gender characterized by how one feels or chooses to express and identify. Having a definitional deficiency, the act might take away the benefits from many such people who deserve them. Also, the provision for an Identity certificate stands in contravention to the principle of ‘self-determining identity’, as enunciated and recognized by the honorable Supreme Court. Giving the powers of issuing certificates into someone else’s hands might hinder the goal this act aspires to achieve. Moreover, the Act is not exhaustive in the sense that it nowhere talks about the applicability of other laws, such as marriage laws and certain crimes where the categories like ‘male’ and ‘female’ play an important role in determining the jurisdiction.
In the fight for equality, transgender persons are at an intermediate stage right now. On one hand, we have some great examples of transgenders who are defying social norms and inspiring many others. Joyita Mondal became the first transgender judge. Dutee Chand, one of India’s leading athletes, claimed her identity as the ‘third gender’. Natasha Biswas became India’s first 3rd gender beauty pageant winner. Moreover, Shabnam Bano became the first Indian transgender to be elected to public office as an MLA. But on the other hand, changing people’s perception of transgenders has been lethargic. They are still looked upon as “abnormal” through ‘binary social lenses’. Also, marriage, adoption, and property rights are still denied to them. This journey of transgenders from marginals to the mainstream has been a difficult one and has still not come to an end. We require both legislative and social support to do so.