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Time to walk the talk

in INDIA, 12/02/2011

An excellent commentary on trans righs in India and some bits of information about gains in terms of trans rights in South Asia.

Imagine a eunuch becoming an Indian Police Service (IPS) officer. Yes, it is possible if the government implements Madras High Court Chief Justice MY Eqbal’s suggestion to give reservation to the third sex in government jobs and education. At a recent national conference on transgender and law, he sa
id this was a better way to bring them into society’s mainstream.

‘Transgender’ is a broad term used to describe a wide range of individuals who are not necessarily defined by, or who feel they do not fit, the gender assigned to them at birth. They usually live or prefer to live in the gender role opposite to the one in which they are born.

Hijras, whose traditional profession is badhai — to sing songs of congratulation at weddings, births — are often forced into begging and sex work.

Often at the receiving end of the State and persecuted by the police, an estimated 10-lakh transgender population in India have almost always been socially ostracised.

Forced to live in ghettos due to social, economic and political exclusion, many take to petty crimes.

Lost privileges

According to A Sirajudeen, author of Transgenders-Social and Legal Dilemmas, hijras have been acknowledged in Hinduism for thousands of years. Ancient texts such as Manusmriti and Sushrutasamhita assert that some people are born third gendered as a matter of natural biology. The Ramayana, Mahabharata, Gita and Kamasutra — all talk of all talk of transgender characters.

The third sex traditionally enjoyed privileged position in Indian society. Matters took a different turn under the British who declared hijras a ‘criminal tribe’ under Criminal Tribes Act 1871;” their behaviour was considered opposed to “public decency”. It mandated their compulsory registration and strict monitoring. It was undone in 1952 but unfortunately, the stigma continues even today.

Court backing

Article 27 of the UN Universal Declaration of Human Rights says everyone has the right to participate in the cultural life of the community and share in scientific advancement and its benefits. The term ‘everyone’ includes transgenders as well.

The Preamble to the Indian Constitution seeks to secure social, economic and political justice; equality of status and opportunity and assures individual dignity. Articles 14 and 15 together guarantee right to equality and prohibit any discrimination on grounds of religion, race, caste, sex or place of birth.

But why is reality so different? Supreme Court Judge and executive chairman, National Legal Services Authority (NALSA), Justice Altamas Kabir laments that despite Constitution backing, the transgender community continues to be ostracised. “Only social acceptance created through awareness will end the stigma they face,” he adds.

Vulnerable to HIV/AIDS

A study conducted by a Mumbai clinic reported high HIV (68%) and high syphilis prevalence (57%) among hijras. Advocate Anand Grover, who fights for the community, says, “You have to organise them so that they can insist on a client using condom… Sex workers of Sonagachhi (Kolkata) are the best examples. They are educated and their children go to schools.”

In recent years, the UNDP has taken several initiatives to work with various government and non-government agencies, including NALSA, to bring this marginalised minority to the socio-political mainstream. As India prepares for the 12th Five-Year Plan, 2012-13, aiming to achieve ‘faster, sustainable and more inclusive growth’, UNDP country director Caitlin Wiesen says, “it needs to take transgenders along.” Enactment of transgender-inclusive laws can influence the governing discourse of social relations with regard to how society treats gender-variant people, she suggests. “Please accept us as we are,” transgender activists Laxmi Tripathi and Gauri Sawant say. Let’s hope for the best.

Positive developments in India

In 2006, the Tamil Nadu government issued an Order on Rehabilitation of Aravanis (transgenders) providing for a number of supportive measures including establishment of a special state Welfare Board for them.

In July 2009, Delhi High Court decriminalised “gay sex,” between consenting adults in private.

In November 2009, transgenders won the right to be listed as ‘other’ rather than ‘male’ or ‘female’ on electoral rolls and voter identity cards.

The 2011 census will include the ‘other category’ to enumerate transgenders.

The Karnataka government has passed a resolution entitling them to 15% reservations under the 2A category of the Backward Class Commission.

MCD has recently announced a monthly pension scheme for transgenders.

National Legal Services Authority (NALSA) has included the transgender in the definition of marginalised groups entitling them to avail of free legal aid.


How other countries treat them

Australia and New Zealand recognise the rights of transgenders to change their sex. They are able to obtain a passport that identifies their sex as corresponding to their gender identity (regardless whether the person has had sex-change surgery).

In New Zealand, 1994, a court upheld the principle that for purposes of marriage, transsexuals should be legally recognised in their re-assigned sex.

In Singapore, the Women’s Charter was amended in 1996 to allow transgendered individuals who have completed their sex reassignment surgery the right to marry someone of the opposite sex.

In 2002, the European Court of Human Rights declared that the UK government’s failure to alter the birth certificates of transsexuals or allow them to marry in their new gender role was a breach of the European Convention on Human Rights.

In Nepal, legal recognition of transgender people is required as a result of the Supreme Court’s ruling.

In 2009, Pakistan’s SC held that transgender citizens should have equal rights and access to government benefits. It ordered that transgenders should benefit from the federal and provincial governments’ financial support schemes.

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