The legal recognition to the third gender paves the way for a more humane and inclusive world.

On April 15, 2014, India’s Supreme Court took a major step in making India more inclusive and humane, by according legal recognition for the first time to the ‘third’ gender or ‘transgender’ people. The fact that these people do not belong to either the male or female gender should not be used, the highest court directs, to block their entry into educational institutions or employment. The judges went further to classify transgender people as ‘other backward classes’, thereby making them eligible for affirmative reservations in education and public employment.

The significance of this enlightened judgment — in reversing a long history of ‘unspeakable violence’ endured by transgender people since colonial times — is highlighted by a significant report titled ‘Transcending the Binaries: Transgender Exclusions in Law and Policy’ by Shubha Chacko and Arvind Narrain, for the forthcoming India Exclusion Report 2013-14 by the Centre for Equity Studies.

Transgender people, they explain, are people who live fully or partially the gender role ‘opposite’ to their biological sex. They quote Veena, a hijra in Bangalore, who declares, “I am a transgender, a woman, dalit, sex worker, socialist, and poor. I am all these things and much more. And I fight to build up a world where I will be accepted for everything I am.”

But the ambiguous sexuality of transgender people, their refusal to accept the sexual identity imposed on them by biology and birth, has led to a long history of social and official refusal to accept them as equal citizens or human beings. Instead they are treated — often violently — as the ‘other’, what the authors describe as ‘invisible, ridiculous, horrific or disgusting’. They are “often laughed at, shunned, rejected by their families, denied jobs, ration cards and passports, and exploited by others in the professions they are allowed into (for instance, seeking alms and sex work). They repeatedly face a host of problems from institutions as diverse as family to the medical establishment including the arms of the state, particularly the police. The social and cultural practice of discrimination coupled with poverty, illiteracy and limited opportunities of employment have led to increased vulnerability of these communities.”

The report highlights the many ways that both criminal and civil law in India have criminalised and legally withheld elementary rights from transgender people. The authors trace the contemporary criminalisation of transgender people to the 1897 amendment to the Criminal Tribes Act of 1871, sub-titled ‘An Act for the Registration of Criminal Tribes and Eunuchs’. Under this statute, a eunuch was ‘deemed to include all members of the male sex who admit themselves, or on medical inspection clearly appear, to be impotent.’ Any eunuch who appeared ‘dressed or ornamented like a woman in a public street….or who dances or plays music or takes part in any public exhibition, in a public street….[could] be arrested without warrant and punished with imprisonment of up to two years or with a fine or both.’ A eunuch was considered incapable of acting as guardian, making a gift, drawing up a will or adopting a son. Although this ‘law stands repealed today in theory’, Chacko and Narrain find that it ‘continues to exist as part of the living culture of law’.

There is the infamous Section 377 of the IPC which makes punishable ‘unnatural offences’ of voluntary and consenting sexual intercourse which goes ‘against the order of nature’. The Immoral Trafficking Prevention Act 1896 has been amended to be gender neutral and, in theory, does not criminalise sex work; but by making soliciting and running brothels illegal, sex workers are continuously vulnerable. The report finds that transgender sex workers tend to be arrested on charges of stealing and extortion rather than for sex work. Apart from sex work, the only other profession that society permits transgender people to enter is begging, but anti-begging laws, another colonial legacy, are used to arrest and detain transgender people who solicit alms for a living.

Chacko and Narrain also show how sexual non-conformity is used to bar access of transgender people to many civil rights, even though they in theory enjoy the same fundamental rights as people who accept the sexual identities that biology has assigned them. Prior to this historic judgement of India’s Supreme Court, “The Indian state’s policy of recognising only two sexes and refusing to recognise hijras as women, or as a third sex (if a hijra wants it), has deprived them, at a stroke, of several rights that Indian citizens take for granted. These rights include the right to vote, the right to own property, the right to marry, the right to claim a formal identity through a passport and a ration card, a driver’s license, the right to education, employment, health so on. Such deprivation secludes hijras from the very fabric of Indian civil society.”

Transgender people are excluded both by state and society. They are not protected by the state when raped, they are only offenders. Shubha Chacko explains that the state does not even count them, because they do not count. They trouble us so much because they force us to question body and desire; and their existence challenges — even subverts — patriarchy, which celebrates masculinity, while here is a group that rejects their biologically-given manhood. And it is a very lonely community. However oppressed you are, say as a dalit or a Muslim, at least you have your family to fall back on. But not transgender people. They have only people ‘like them’ to fall back on, no one else.

The progressive — even if greatly belated — judgment of the Supreme Court will not change overnight the destinies of people who do not conform to the sexual practices of the majority of the population. But it reminds us of the unacceptable ways that our society and law treat people of difference — with contempt, injustice and violence. It will hopefully pave the way for a more humane and inclusive world for people who may or may not be like you or me, but that in no way makes them less human.