Social Legal Dimensions of Third Gender & Emerging Trends
INTRODUCTION
After birth a child is either called as a boy or a girl depending on his or her biological chromosomes. Traditionally, they termed as a male or a female. These become their gender identity. A child gets characterized in only two categories, male or female irrespective of his emotional or mental attraction towards somebody. A human being has both gender identity and sexual orientation at the same time. Where sexual orientation fully describes the emotional attraction, gender identity differs from it while dealing it with the concept of deep feeling and experiences of gender which may or may not be similar with the sex assigned at birth. With increasing age, a person realizes internal sense of their role according to their culture specifying traditional and behavioral differences between men and women. This is termed as ‘Gender Identity’. On the other hand, ‘Sexual Orientation’ generally deals with the emotional and sexual attraction they feel for others that can be a gay, lesbian or a bisexual. People getting attracted to the same sex was always been a debating topic in our society. Term LGBT was never as normal and common before in India. The acronym LGBT has been defined as Lesbian, gay, bisexual and transgender. Since 1990’s this term has become a big burning topic in news. Moreover, the term ‘Lesbian’ is used to define a girl who is emotionally attracted towards another girl and has interest to carry out romantic and sexual intercourse with another girl. The term ‘Gay’ is used to define a boy who is sexually attracted towards a boy. ‘Bisexual’ can be a person who is sexually attracted towards more than one gender, it can both boy and girl at the same time. Lastly, ‘Transgender’ is a term used to describe a person who does not conform with the society and urge to change his/her sex through any surgery. H/she strongly disagrees with the sex assigned him after birth and tries to change himself by cross dressing or cross chromosomes surgery.
BRIEF HISTORY OF THE LGBT COMMUNITY
In the past nineteenth century the, concept of having these
kinds of sexual identity did not exist. LGBT identity in general sense came
into picture around mid-twentieth Century. It created impact on both personal
and political lives of people. Havelock Ellis, the British Sexologist first
coined this term as “sexual inverts”, which he defined as the persons who have
sexual attraction towards the same gender. Later, these people got identified
as gay and lesbian. Karl Ulrichs, the German scholar brought up a new term,
called “Urning”. He described this term as a third gender. However, in 1869
Karloy Maria Benkert, a Hungarian doctor was the fisrt person to coin the term
“Homosexual”. “Gay” emerged as an underground term within the early-twentieth
century and came into popular usage within the 1960s. The term was preferred by
the Stonewall generation, who, contrary to their predecessors, were less likely
to ascertain being gay as shameful or a mental defect. In the 1970s, activists
Sylvia Rivera and Marsha P. Johnson often spoke of “gay rights” or “gay power”
in regard to their liberation as street queens of color (who today we might ask
as transgender). The pair founded the organization STAR (Street Transvestite
Action Revolutionaries) as how to arrange homeless trans street youth. “STAR
was for the road gay people, the road homeless people, and anybody that needed
help at that point,” Rivera said. The term “lesbian” comes from the Greek
island of Lesbos, related to the poet Sappho, whose surviving writing lyrically
describes erotic love and attraction between women. The articulation of a
definite lesbian identity was often necessitated by exclusions gay women faced
in feminist and gay organizations. Friedan, the primary president of the
National Organization for ladies (NOW), infamously mentioned lesbians as “the
Lavender Menace,” suggesting their presence would hinder the goals of the
organization by furthering the idea that each one feminist were man-hating
lesbians. Lesbians, likewise, often experienced overt sexism in post-Stonewall
gay organizations like the Gay Liberation Front (GLF) and therefore the Gay
Activists Alliance (GAA). The term “transgender” was forwarded and popularized
by activists like Kate Bornstein, Holly Boswell, Leslie Feinberg, and Riki
Wilchins, to make a coalition of persons who didn't fit neatly into gender
binaries, or who defied gender norms and expectations, particularly following
the 1993 assault and murder of trans man Brandon Teena in Humboldt, Nebraska.
“Transgender” was also adopted by persons who didn't identify with the sooner
label “transsexual,” thanks to its association with medical transition across
the gender binary.
EMERGENCE OF LGBT COMMUNITY IN INDIA
The issue of homosexuality in India is controversial.
it's complex matter due to many sorts of spiritual life, living in India. This
chapter reviews a number of the literature that deals with the historical
facets of homosexuality then attempts to debate the contemporary situation of
same-sex relation in India. The changes within the meanings related to same-sex
sexuality are discussed somewhat sequentially, though not in strict
chronological order, in reference to some major landmarks in both Indian
history and therefore the contemporary period. Till recently there was no
equivalent ‘medical’ or ‘scientific’ term that was like the term’s
‘homosexuality’ or ‘homosexual’ in India. Classical Indian literature,
homosexuality was discussed using poetic metaphors pertaining to earlier man or
incidents famed for association with homosexuality. Early Indian terminology
therefore didn't emphasize an innate sexual essence, but instead targeting
actions, tendencies and preferences. In other words, rather than saying what someone
‘is’, many of the Indian works would usually ask whom he ‘resembles’ or what he
‘does’ or ‘enjoy’. as an example, within the late medieval Urdu poetry chapti which
suggests clinging or sticking together was used for sex between women also as
for ladies who practiced it. Another popular way of describing homosexuality
was in terms of social roles. Hence, early records mentioning men who had
sexual relationships with the emperors call them ‘favorites’, an outline of
their political status, not of an innate sexual essence. The Kama Sutra
categorizes men interested in other men as having a ‘third nature’. Ancient
Indian medical texts described categories of individuals interested in their
own sex and ancient and medieval Jain texts developed an elaborate taxonomy of
such categories basing a number of them not on behavior, but on the character
and intensity of same sex desire. Thus, abstract terminology differed within
the past and therefore the present, and between India and therefore the West.
On a physical level, vernacular literature, earlier sex manuals, traditional
sex jokes and erotic arts depict anal and oral intercourse because the
preferred sort of homosexual intercourse; references to mutual masturbation,
inter-femoral sex and other sorts of sexual practices were relatively rare.
Moving from the sexual act to the individual, men often manifested sexuality
differently counting on their stage of life. There's a bent for boys and
adolescents to require on the passive sexual role and for grown men to require
on a lively role. Additionally, to changes in homosexual roles assumed at
different stages of a men’s life, many men have also experienced homosexual and
heterosexual relationships during their lives. partially this blindness to
gender is attributed to spiritual, social, and economic factors. Some men have
undoubtedly had sexual activity with women just because they're expected so.
PROBLEMS FACED
BY LGBT COMMUNITY
The LGBT face
innumerable difficulties within the society where the sole accepted orientation
is heterosexuality and homosexuality are considered abnormal. Abuse is their
daily routine and faced by them almost a day. They're more likely to experience
intolerance, discrimination, harassment, and threat of violence thanks to their
sexual orientation than people who identify themselves as heterosexual. They
face inequality and violence at every place round the world. In many countries,
the rights enjoyed by opposite-sex couples aren't enjoyed by the same-sex
couples. they're prohibited from those rights. As a result, they face
discrimination and can't enjoy social protection schemes like health care and
pensions. The LGBT people even hide their gender and don't disclose it thanks
to fear of losing their job. They gradually develop low self-esteem. the
oldsters of normal children don’t allow them to combine with the LGBT children
acting completely out of care and concern without realizing that this results
in isolation for the opposite one. Lack of communication between LGBT child and
therefore the parents often results in conflict within the family. Much LGBT
youths are placed in care or find yourself in juvenile detention or on the
streets. LGBT teens have a really high risk of health and mental problems once
they become adults because they're rejected by their parents and caregivers.
There are times where they get hooked in to drugs or alcohol to urge themselves
relieved of stress. They isolate themselves from everyone. They become the
victims of hate crime. In many countries, homosexuality is taken into account
as crime and sometimes met by imprisonment and fines. Moreover, in a number of
the private laws it's considered as a sin and is unlawful. Exclusion and
discrimination have more impact on the lives of LGBT persons. This has resulted
within the following-
• Dropping out of faculty earlier
• Leaving home and family
• Being ignored
within the community
• Lacking family
support
• Attempt
suicide
SOCIAL ASPECTS
OF LGBT COMMUNITY
Today,
homosexuality and queer identities could also be acceptable to more Indian
youths than ever before, but within the boundaries of family, home and faculty,
acceptance of their sexuality and freedom to openly express their gender
choices still remain a continuing struggle for LGBT (lesbian, gay, bisexual,
transgender) people. In urban India, where social media and company initiatives
have created increasing awareness of LGBT rights, the scenario looks more
upbeat for gay men than for transgender people or lesbian women. While urban
LGBT voices that are heard through several online and real-world platforms form
a crucial a part of LGBT activism, these expose only a little a part of the
various challenges faced by the community. Far away from gay pride parades,
meet-ups and heated discussions on Twitter, families in rural India have their
own ways of handling LGBT individuals. In some parts, secret honor killings are
planned in order that the sole way for a young shirt lifter to survive is to
run away within the cover of the night to some city, with no money or social
support.
In other parts,
lesbian women are subjected to family-sanctioned corrective rapes, which are
often perpetrated by their circle of relative’s members. Vyjayanti Vasanta
Mogli, a transwoman LGBT activist and public policy scholar at Tata Institute
of Social Sciences, Hyderabad, who has openly spoken about her abuse at
college, says that lesbian women and transmen in rural areas find yourself at
rock bottom of the hierarchy when it involves basic human rights within the
unit of family and village. She invokes B.R. Ambedkar when talking of the
agricultural socioeconomic environment. “Ambedkar thought of the village as a
unit of violence which is most true for LGBT issues," she says. “Village
medics are often prescribed rape to cure lesbians of homosexuality. Refusal to
marry brings more physical abuse. Stories of family acceptance that you simply
see on TV and other media are more of an urban phenomenon." Even in
educated urban India, suicides by lesbian women make headlines per annum. It
comes as no surprise then that a tribunal recently ruled that the sole danger
to lesbians in India is from their own families
LEGAL ASPECTS
AND PROVISIONS OF LGBT COMMUNITY
The enactment of
the varied laws by the legislature is that the outcome of the constitutional
provisions. The relevant acts which establish the identity of this class though
not specifically but they're discussed below. The Citizenship Act, 1955 which
provides for the acquisition and determination of Indian Citizenship also
doesn’t, expressly or impliedly require a determinate sex or identity as a
precondition for acquiring citizenship. for somebody to be a voter (elector),
he/she must be a citizen of India. The committee of India has taken special
measures to enroll the transgender persons as electors. The definition of
“person” under the general Clauses Act, 1897 is couched in even wider terms.
The Act defines someone to incorporate any company or association or body of
individuals, whether incorporated or not’. Though Section 13 of the Act stipulates
that words importing the masculine gender shall be taken to include females,
this stipulation is itself conditioned by the statutory direction that this
will be so unless there’s anything repugnant within the topic or context Interestingly,
the Registration of Births and Deaths Act, 1969 doesn't mention anything about
“sex”/ “gender” of an individual to be registered just in case of birth or
death. The Act is gender neutral. the need of indicating the sex/gender of an
individual just in case of a birth or death within the Birth or Death
certificate, because the case could also be, doesn't seem to be due the
provisions of the Act itself. Such a requirement may be put within the formats
of such certificates prescribed within the Rules under the Act, which are made
by the States. The main problems that are being faced by the transgender
community are of discrimination, unemployment, lack of educational facilities,
homelessness, lack of medical facilities like HIV care and hygiene, depression,
hormone pill abuse, tobacco and alcoholic abuse, problems associated with
marriage and adoption. “Access to justice may be a Fundamental Right guaranteed
by the Constitution to the citizens.” said Justice Dipak Misra. India despite
being world’s largest constitutional democracy, are still grappling within the
heteronormative caves of undermining alternative sexualities. In the case of,
Jayalakhsmi V. Tamil Nadu2 Pandian, a transgender, was arrested by the police
on charges of theft. He was sexually abused within the police headquarters
which ultimately led him to immolate himself within the premises of the police
headquarters. Similarly, policemen arrested Narayana, a transgender, in
Bangalore on suspicion of theft without informing him of the grounds of arrest
or extending any opportunity to him to defend himself. His diary was
confiscated by the police and he was threatened with dire consequences if he
didn't assist in indentifying other transgenders he was familiar with.
Homosexuals have also been at the aggrieved end of monetary extortion by the
police in exchange for not revealing their identities to society. In today’s
date, the laws that cause an excellent harm to the present transgender
community is Section 377 of the Indian legal code, 1860 and therefore the Immoral
Traffic Prevention Act, 1986. Immoral Traffic Prevention Act (ITPA), 1956
(amended in 1986) is that the principal instrument which prevents the
trafficking of girls and youngsters into prostitution. With the Amendment of
1986, the scope and ambit of the Act now became applicable to both male and
feminine sex workers and also to those whose identity was indeterminable. Thus,
both male and hijra sex workers became criminal subjects of the ITPA and it
provided the legal basis for arrest of the transgender sex workers population.
Section 377 of the Indian legal code , 1860 was drafted by Macaulay . This
provision provides the punishment for the prosecution of certain sorts of
sexual acts deemed to be unnatural. The natural presumption just in case of a
homosexual or a hijra is drawn that they're engaging in acts against the order
of nature. it's clear that this Section has been frequently wont to harass and
exploit homosexuals and transgender persons. Surprisingly, the Indian Council
for Medical Research (ICMR) and Indian Medical Association (IMA) haven't yet
framed any guidelines for Sex Reassignment Surgery (SRS).
ROLE OF
JUDICIARY IN PROMOTING LGBT COMMUNITY
(Decriminalization
of section 377, IPC) 15TH April 2014 wasn’t a typical day. Something
exceptional happened on the summer of 15TH of April that ‘blown life within the
“constitutionality” dead members of the sexual minority of India’. It had been
that day which brought light and euphoria to the lifetime of ‘Hijras’. For the
first time within the history of India, ‘Third Genders’ was given recognition
and was officially recognized as another gender as male and female. The Hon’ble
Supreme Court of India within the case of National Legal Services Authority v.
Union of India3 in its landmark judgment in 2013 created the ‘third gender’
status for hijras or transgenders. Earlier, while writing their gender, they
were forced to place in writing male and female, but now after this judgment,
they’ll proudly describe themselves as ‘third gender’. With the arrival of the
contemporary epoch, the movement against the repressive and oppressive nature
of Section 377 grew exponentially and it had been finally on July 2, 2009 that
the Delhi supreme court passed a judgment in favor of the LGBT’s within the
landmark judgment of NAZ Foundation v. Government of N.C.T Delhi4 (hereinafter
mentioned because the NAZ Foundation case), declaring Section 377 of the Indian
legal code, 1860 which criminalizes homosexuality in India to be
unconstitutional and violative of Articles 14, 15 and 21 and skim down the
section, allowing consensual sexual intercourse between two homosexuals above
18 years aged . The matter visited appeal to the Supreme Court in Suresh Kumar
Koushal and another v. NAZ Foundation5 et al. where the Supreme Court struck
down the choice by the supreme court within the NAZ Foundation Case. Justice
Singhvi said that Section 377 of the Indian legal code doesn't suffer from any
constitutional infirmity and left the interest the competent legislature to
think about the desirability and legitimacy of deleting the Section from the
written record or altering an equivalent to permit consensual sexual
intercourse between two adults of an equivalent sex privately. The Court
mentioned Indian and foreign judgments, the Yogyakarta Principles 27
identifying with sexuality as a structure of personality and therefore the
worldwide patterns within the assurance of security and nobility privileges of
gay people and held: The Yogyakarta Principles consists of 29 principles,
giving paramount importance to universality and inalienability of human rights
barren of sexual orientation and gender identities. The order of those
principles explains the character and extent of discrimination faced by the
LGBT group which is embedded in society that's enforced through its system.
These principles are supported the idea of rights-based approaches, which
entrusts the State Parties with duty to implement the legal obligations, such
as: • taking all necessary legislative, administrative and other measures to
eradicate impugned practices which discriminate and violate the essential human
rights of the individuals with diverse sexual orientation and gender identities;
• undertaking protection measures for the persons identifying themselves with
the LGBT community or group; ensuring accountability of perpetrators violating
the essential humanright of the LGBT community and also seeking redress for the
victims; and, • promotion of a person's rights culture by means of education,
training and public awareness-raising. Yogyakarta Principles are well received
by the UN bodies, Regional Human Rights Bodies, National Courts, Government
Commissions and therefore the Commissions for Human Rights, Council of Europe
then on. These bodies have endorsed these Principles and recognized them as
important tool for identifying the obligations of States to respect, protect
and fulfill the human rights of the people belonging to the LGBT community.
“The sphere of privacy allows person to develop human relations without
interference from the surface community or from the State. The exercise of
autonomy enables a private to achieve fulfillment, grow in self-esteem, build
relationships of his or her own choice, and fulfill all legitimate goals that
he/she may set. within the Indian Constitution, the proper to measure with
dignity and therefore the right of privacy are recognized as dimensions of
Article 21.” In April 2014, the Supreme Court of India declared transgender to
be the ‘third gender’ in Indian law. Justice KS Radhakrishnan noted in his
decision that, “Seldom, our society realizes or cares to understand the trauma,
agony and pain which the members of Transgender community undergo, nor
appreciates the innate feelings of the members of the Transgender community,
especially of these whose mind and body disown their biological sex.” By
recognizing the transgender as a 3rd gender, this Court isn't only upheld the
rule but also advanced justice to the category, thus far bereft of their
legitimate natural and constitutional rights. It is, therefore, the sole just
solution which ensures justice not only to the transgenders but also justice to
the society also. Non-recognition of the identity of Hijras/transgender persons
denies them equal protection of law, thereby leaving them susceptible to
violence and sexual abuse, publicly spaces or in jail by the police. Further,
non-recognition of identity of Hijras/transgender person leads to facing
extreme discrimination altogether spheres of society, especially within the
field of employment, education, healthcare etc. Hijras/transgender persons face
huge discrimination in access to public spaces like restaurants, cinemas,
shops, malls etc. The applicability of the judgment during this case was
restricted by the Hon‟ble Supreme Court only to transgender and explicitly
excluded the Lesbians, Gays and Bisexual, thereby not getting into the
controversial question of validity of Section 377 of Indian legal code. The
Court on the idea of Human Rights highlighted the importance of gender for
applicability of varied human rights. The Court directed that the
recommendations by the report of Ministry of Social Justice and Empowerment
Expert Committee must be examined supported the legal declarations made during
this judgment and implemented within six months. This broadened the ambit of
rights which will be granted to the transgender. However, though the judgment
recognizes the harm done by Section 377 of IPC to the transgenders, it didn't
pass any orders or make any recommendations. The Hon’ble Supreme Court of India
declared that: Hijras, eunuchs, aside from binary gender, be treated as “third
gender” for the aim of safeguarding their rights under Part – III of our
Constitution and therefore the refore the laws made by the Parliament and the
State Legislature. Transgender persons‟ right to make a decision their
self-identified gender is additionally upheld and therefore the Centre and
State governments are directed to grant legal recognition.
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