Social convention says there are two types of people based on their chromosome and genitalia: men and women. Charles Darwin’s writings on sexual selection reaffirm, only these two sexes exist for the purpose of reproduction. But in fact, various cultures have long recognised members who buck the biological binary. These people are neither men nor women; or both; or people with male body and female behaviour or vice versa. Today there are many populations with alternative identities, such as hijras in South Asia, kathoeys in Thailand, and muxes in Mexico. Surprisingly, there also remains states like Iran that does not recognise alternative genders and legalise sex reassignment surgery.
Though the concepts of human rights and equal rights have been a matter of the 20th century, only recently has the fight for legal recognition and respect of a third category of gender along with male and female gender has begun to bear fruit. From ancient Greece to digital Bangladesh, the political, cultural and legal emergence of a complex, controversial term, “third gender” has not been so easy.
However, “Hijra” or mostly male to female transgenders have a long history in South Asia. “Ramayana,” the holy book for Hindu refers to a third sex. Again, during the Mughal empire in the 16th and 17th centuries, castrated hijras or eunuchs were respected and considered close confidants of emperors.
But the scenario has worsened for hijras when in 1871, British administrators passed the Criminal Tribes Act in India, effectively outlawing the country’s hijras, a community that includes intersex people – those born with both male and female biological traits, transgender people – those whose gender identity does not match their sex assigned birth, eunuchs and even cross-dressers. This Act was repealed in 1949 but negative attitudes and discrimination towards hijras continued.
Even today, they remain socially excluded, living on the fringes of society, in ghettoised communities, harassed by the police and abused by the public. Most make a living by singing and dancing at weddings or to celebrate child birth, many have moved to begging and prostitution. Violence against hijras, especially hijra sex workers, is often brutal, and occurs in public spaces, police stations, prisons, and their homes. As with transgender people in most of the world, they face extreme discrimination in health, housing, education, employment, immigration, law, and any bureaucracy that is unable to place them into male or female gender categories.
Only seven countries, as of today, offer an alternative option on their legal documents, whereas, legal documents in the United States only recognise “male” and “female” as genders, leaving anyone who does not identify as one of these two genders with no option.
Following a Supreme Court landmark decision against gender identity discrimination in 2007, Nepal is believed to have become the world’s first country to include a third gender option on its census forms, which it initiated in 2011. The country has led the way in South Asia, also introducing a third gender category on its passports in 2012.
In 2009, local police had allegedly attacked, robbed and raped eight hijra wedding dancers near Islamabad, Pakistan. That traumatic event led Muhammed Aslam Khaki to file a private case in the country’s Supreme Court, asking to recognise hijras as a third gender. At the end of 2009 the chief justice of Pakistan ordered the National Database and Registration Authority to issue national identity cards with a “third gender” category for non-binary citizens.
According to one estimate, India has about two million transgender people who have been forced to choose either male or female as their gender in most public spheres. In 2009, India’s Election Commission took a first step by allowing transgenders to choose their gender as “other” on ballot forms. India’s Supreme Court has recognised transgender people as a third gender, in a landmark case of “National Legal Services Authority v Union of India and Others” in 2014. “Recognition of transgenders as a third gender is not a social or medical issue but a human rights issue,” Justice KS Radhakrishnan, said in his judgement.
“Transgenders are also citizens of India” and they must be “provided equal opportunity to grow ... the spirit of the Constitution is to provide equal opportunity to every citizen to grow and attain their potential, irrespective of caste, religion or gender.” The court also said. The judges asked the government to treat transgender as “socially and economically backward,” to enable them to get quotas in jobs and education along with all other amenities.
At least 10,000 hijras currently live in Bangladesh, according to national statistics, but the number can be 10 times higher. They have had the right to vote since 2009. In November 2013, the government announced the recognition of “hijra” as a third gender category in all national documents and passports. The prime minister’s cabinet secretary noted the community was “being denied their rights in various sectors, including education, health and housing because of being a marginal group.”
After a year of the government announcement, we are still waiting for a specific law to be enacted to cover third gender people’s rights. The government must make sure that the third genders have access to medical care and other facilities like separate wards in hospitals and separate public toilets. The government should also treat transgender as “socially and economically minority,’’ to enable them to get quotas in jobs and education. Confusion still remains in areas on their rights to inheritance, rights to own property, rights to adopt a child and rights to marry. Without these rights to be confirmed, only legal recognition as a marginal group will do little to their favour.
Moreover, legal experts predict this announcement puts transgender people in a strange situation: on the one hand, they are now legally recognised and protected under the Constitution, but on the other hand they may be breaking the law if they have consensual gay sex. According to a 153 year old colonial era law, Section 377 of the Penal Code 1860, a same-sex relationship is an “unnatural offence” and punishable by a 10-year jail term.
It is hoped that social acceptance along with the landmark court rulings and legal status by governments will help bring the third gender people into the mainstream and improve their lot worldwide. We must not forget, it is the right of every human being to choose their gender and not to be discriminated on the basis of their sexual orientation and gender identity.