India’s transgender or “Hijra” community has been part and parcel of the subcontinent for about as long as civilization has, and is currently estimated to comprise of five million people. With a recorded history of over 4,000 years and occupying a special place in a plethora of ancient texts, the hijra community is a testament to the sexual diversity that remains an elemental yet forgotten aspect of Indian culture.

   The acknowledgement of the hijra, or LGBTQ community as a whole for that matter, finds its roots in ancient Indian mythological and historical texts. The Kamasutra, Ramayana, Mahabharata, and the theological texts within Jainism and Buddhism all make references to homosexual practices and gender fluidity. Indian mythologist and author, Devdutt Pattanaik, writes in his book “Shikhandi: And Other Tales They Don’t Tell You”: “Hindu mythology makes constant references to queerness; the idea that questions notions of maleness and femaleness. There are stories of men who become women, and women who become men, of men who create children without women, and women who create children without men, and of creatures who are neither this, nor that, but a little bit of both.” These ancient Indian texts, particularly Brahmanical, Buddhist and Jain, written around 1500 BCE, often explore different conceptions of sexuality and narrate tales about a “third sex”, or persons who do not conform to male or female normative gender.

   During the Mughal dynasty from the early 16th to mid-18th century, hijras played a prominent role in the royal courts of the Islamic world, particularly during the Ottoman Empire and the Mughal rule in Medieval India. They rose to eminent positions as political advisors, administrators, generals, as well as guardians of the harems, and were considered clever, trustworthy and fiercely loyal, thereby playing a crucial role in the politics of empire-building. This elevated stature of eunuchs during this era has been documented for years by foreign travellers and historians, and references to them in important Mughal manuscripts are extensive. Such works reflect a deep fascination and intrigue with the prominence of tolerant notions of gender and sexuality in Mughal life, along with the physical presence of eunuchs in literature and politics; they were often chambermaids and guardians of the inner female domain as they were seen as both masculine and feminine at the same time; they did not pose any sexual threat yet were considered masculine enough to be guardians.

   However, through the onset of colonial British rule from the 18th century onwards, the situation changed drastically. The British colonial administration vigorously sought to criminalize the hijra community and subverted the notion of same-sex love in the realm of literature, romantic poetry and mythology, and introduced the ideals of gender and sexuality segregation as understood by them. This led to a widespread shift in the understanding of homoeroticism in colonial India, which resulted in eunuchs and hijras being ostracized and pushed to the peripheries of society.

   For instance, Section 377 of the Indian Penal Code introduced in 1861 criminalized all sexual acts that were “against the order of nature”. Moreover, various pieces of legislation since the 1870s that were collectively called the Criminal Tribes Act (CTA) criminalized entire ethnic and social communities in India by designating them as habitual criminals. Although they were primarily directed at tribal communities, various incarnations of the Act included provisions limiting the rights of transgender and gender non-conforming individuals in India—particularly the hijra community. The CTA of 1871 created the category of “eunuch” which was “deemed to include all persons of the male sex who admit themselves, or on medical inspection clearly appear to be impotent”, a classification that then allowed for the registration, surveillance, and ability to arrest all such individuals. It included people who “appear, dress, or ornamented like a woman in a public street or place”, or “dance or play music, or take part in any public exhibition…or for hire in a private house”. Anyone found engaging in these traditional hijra activities could face up to two years imprisonment and a fine. Thus, members of these isolated communities sought solace in a guru or protective leader who could offer emotional and monetary support. Hijras even developed their own secret language, Hijra Farsi, to protect their identities while still maintaining tight-knit communities.

   Colonial law thus deprived trans people of their primary source of income as well as their fundamental civil rights, pushing them further into poverty and social exclusion. This uniform misrepresentation and discrimination of hijras and other transgenders by the British for almost two centuries paved the way for a flawed understanding of trans people and their sexuality, and directly influences the vulnerable position of the hijra community that is seen in contemporary India.

   Even in the 21st century, there is a high level of legal discrimination and violence against transgender women in India, and throughout recent years the legal sphere has been an amalgamation of both progressive measures as well as counterproductive legislation that fails to protect the LGBTQ community. Some of the positive, landmark decisions by the Supreme Court of India include the ‘National Legal Services Authority v. Union of India’, a 2014 ruling that declared transgender people as the ‘third gender’, affirming that the fundamental rights granted under the Constitution of India would be equally applicable to them, and giving them the right to self-identification of their gender as male, female or third gender, as well as granting them equal access to education, healthcare, and employment. Moreover, in 2018, the Supreme Court passed yet another historic judgement, decriminalising homosexuality by partially striking down the colonial era provisions of Section 377, stating that discrimination on the basis of sexual orientation was a fundamental human rights violation.

   However, The Transgender Persons (Protection of Rights) Bill of 2019 proved to be a less favourable, regressive legislation that was vehemently rejected by the trans community as it was inadequate on several fronts, specifically the procedure it mandated for legal gender recognition — the process by which trans people can change their documents to reflect their identity. It stipulated that they would require an identity certificate granted by a local government official, and it would only identify people as transgender, not as male or female, unless the person had undergone sex reassignment surgery and could provide proof. This bill accords an unethical amount of power to one’s government office, to arbitrate which trans people “qualify” to be recognized as who they are. It also coerces people into medical procedures they might not want — a fundamental rights violation that Indian and international jurisprudence condemns — and negates the right of the self-identification of gender the 2014 law granted the trans community. In addition to this, the punishment for serious crimes committed against transgender people in the bill is substantially less severe than for the same crimes committed against cisgendered people. It does not even explicitly state common forms of discrimination in employment, education and housing, and also denies reservation to transgender, intersex and gender non-conforming people, pushing them to reside with their biological families which are generally the first sources of physical and psychological violence.

   According to a Times of India report, the NHRC, in collaboration with a research organization Kerala Development Society (KDS), undertook its first-ever study to gauge the condition and living standards of transgender people in India, and reported that the rights of trans people are “largely compromised” and they experience entrenched discrimination and severe isolation within their communities; 92% of trans people are deprived of the right to participate in any form of economic activity, forcing a majority of them to resort to prostitution and begging; 52% of them experienced harassment by school classmates and 15% experienced it from their teachers, leading them to drop out of their studies. However, despite this unfortunate reality, there are a number of trans women in India who are breaking barriers across fields and blazing a trail for their community. Some notable examples are Dr. Trinetra Haldar Gummaraju, Karnataka’s first trans-woman surgeon, and Joyita Mondal, the country’s first transgender person to be appointed as a judge in a Lok Adalat (People’s Court).

   On a final note, while there are specific provisions in the Transgender Bill that protect transgender interests such as prohibiting discrimination in employment opportunities, the implementation of such provisions is sorely lacking. A robust legal mechanism to safeguard transgender rights must be implemented and serious penalties should be imposed on offenders. Moreover, gender-sensitization should be promoted and should work in parallel with legal reform, where the education system would play a pivotal role in inculcating values of equality, inclusivity and diversity among adolescent boys and girls, which is essential for building a receptive and respectful society. Additionally, despite countless attempts by political bodies to suppress their truth, India’s transgender community’s long-standing self-identification has forced the world to pay attention. Their laudable tenacity is attested by the fact that they remain a visible presence in public space, public culture, activism and politics in India.

Credits – Iman Ghani

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