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to Section One | to Arts & Entertainment
posted Friday, April 18 2014 - Volume 42 Issue 16
India Supreme Court says Trans people are third gender
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India Supreme Court says Trans people are third gender

by Mike Andrew - SGN Staff Writer

In a landmark decision, a two-judge panel of India's Supreme Court ruled on April 15 that Transgender people constitute a 'third gender' which the Indian government must accommodate with quotas in hiring and education as it does with other minorities.

According to one estimate, India has about two million Transgender people. The term 'hijra' is often translated as 'Transgender' in English, although it includes people who would not usually be considered Trans in the United States - cross-dressers, drag performers, and eunuchs.

Human rights groups say the hijra live on the fringes of society, often in poverty, ostracized because of their gender identity. Most make a living by singing and dancing or by begging and prostitution. Rights groups say they face discrimination so pervasive that hospitals sometimes refuse to admit them.

Until the court's ruling, they have been forced to choose either male or female genders for most legal purposes. 'Recognition of transgenders as a third gender is not a social or medical issue but a human rights issue,' Justice K.S. Radhakrishnan said in his April 15 ruling.

'Transgenders are also citizens of India' and they must be 'provided equal opportunity to grow,' the court said.

'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 established the principle that 'It is the right of every human being to choose their gender,' meaning that hijra may identify in any way they please, without having their identities questioned by officials or doctors.

According to the Times of India, the justices expressed concern over harassment and discrimination against Transgender Indians, and issued 'a slew of directions' for their social welfare.

For example, the court said that the state and national governments should implement social welfare plans for the hijra community, and begin a public awareness campaign to erase social stigma.

India's states must construct public toilets reserved for hijra, and establish public health departments to look into their special medical issues. The court added that if a person undergoes reassignment surgery, then he or she is entitled to a change of gender identity markers on official documents.

The court also noted that Section 377 of the Indian Penal Code - forbidding 'unnatural offenses' - is being misused by police and other authorities against hijra, and consequently that their social and economic condition is far from satisfactory.

'We are quite thrilled by the judgment,' Anita Shenoy, lawyer for the petitioner National Legal Services Authority (NALSA), told BBC News.

'The court order gives legal sanctity to the third gender. The judges said the government must make sure that they have access to medical care and other facilities like separate wards in hospitals and separate toilets,' she said.

Prominent Transgender activist Laxmi Narayan Tripathi, who was among the petitioners in the case, welcomed the judgment, saying the community had long suffered from discrimination and ignorance in the traditionally conservative country.

'Today, for the first time I feel very proud to be an Indian,' she told Agence France Presse outside the court in Delhi.

Nepal and Bangladesh also recognize 'third gender' as a legal category.

According to BBC News, hijra have played a prominent role in Indian culture and were once treated with great respect. They are mentioned in ancient Hindu scriptures and epics like the Ramayana and Mahabharata.

In medieval India they played a prominent role in the royal courts of the Mughal emperors and some Hindu rulers. Many of them rose to powerful positions.

Under British colonial rule, however, the Criminal Tribes Act of 1871 categorized the entire hijra community as 'criminals' who were 'addicted' to committing serious crimes. They were arrested for dressing in women's clothing, or dancing and playing music in public places, and for indulging in 'unnatural' sex.

This law was repealed in 1949 after independence, but discrimination against the hijra community has continued.

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