Did God Made Only Adam and Eve
(An Insight into the legal position of Eunuchs)
How often do we sit and question our gender or s*xual identity? Is it always the same as the biological s*x that we are born in? Can it be independent entity, irrespective of our biological s*x? Most of us assume, for lack of further information that our overall s*xuality that includes our s*x, gender, s*xual orientation and s*xual behavior are all determined at some point through some ‘natural’ genetic intervention during our birth and there is nothing one can do about it. We are taught to believe in strict binaries of male and female and the separate social roles associated with both. Today when we see a television advertisement, where our hero denies a young pretty woman’s courtship, just as he realized that this attractive woman used to be a man. Oh! And everyone chuckles. Well, it’s not that funny. Trans s*xuality as a phenomenon has gained very little visibility or knowledge in our society – precisely why is it so easy for us to distance ourselves and laugh at it. Our society in fact contains one of the most visible transgender cultures in the world – the ‘Eunuch’ (Hijra) Community. Eunuchs might have an accepted place in Indian society, but it is a place pretty much at the bottom of the social heap – making them not just a s*xual but also a highly deprived social minority.
Transgender communities have existed in most parts of the world with their own local identities, customs and rituals. They are called baklas in the Philippines, berdaches among American Indian tribes, serrers in Africa and hijras, jogappas, jogtas, shiv-shaktis and aravanis in South Asia. The hijra community in India, which has a recorded history of more than 4,000 years, was considered to have special powers because of its third-gender status. It was part of a well-established `eunuch culture' in many societies, especially in West Asia, and its members held sanctioned positions in royal courts. Hijras trace their origins to myths in the Ramayana and the Mahabharata. Rama, while leaving for the forest upon being banished from the kingdom for 14 years, turns around to his followers and asks all the `men and women' to return to the city. Among his followers the hijras alone do not feel bound by this direction and decide to stay with him. Impressed with their devotion, Rama sanctions them the power to confer blessings on people on auspicious occasions like childbirth and marriage, and also at inaugural functions. This set the stage for the custom of badhai in which hijras sing, dance and confer blessings. But today, keeping in mind the pathetic condition of them one can say that this community actually needs the blessings of Lord Rama more than anyone so that at least they can subsist in the society with proper dignity, respect and most of the most important identity.
Hijras (Eunuchs) in India have virtually no safe spaces, not even in their families, where they are protected from prejudice and abuse. The PUCL(K) Report on Human Rights Violations against the Transgender Community has documented the kind of prejudice that hijras face in Bangalore. The report shows that this prejudice is translated into violence, often of a brutal nature, in public spaces, police stations, prisons and even in their homes. The main factor behind the violence is that society is not able to come to terms with the fact that hijras do not conform to the accepted gender divisions. In addition to this, most hijras have a lower middle-class background, which makes them susceptible to harassment by the police. The discrimination based on their class and gender makes the hijra community one of the most disempowered groups in Indian society. The systematic violence that hijras face is reinforced by the institutions such as the family, media and the medical establishments and is given legitimacy by the legal system. The hijras face many sorts of state and societal harassments such as:
Harassment by the police in public places
Harassment at home
Police entrapment
Abuse/harassment at police stations
Rape in jails
The roots of contemporary violence against the hijra community can in fact be traced back to the historical form that modern law in colonial India has taken. It took the form of the enactment of the Criminal Tribes Act, 1871 which was an extraordinary legislation that even departed from the principles on which the Indian Penal Code was based. To establish an offence under the India Penal Code, the accusations against the accused has to be proved beyond reasonable doubt in court of law. But certain tribes and communities were perceived to be criminals by birth, with criminality being passed on from generation to generation. It fitted in well with the hierarchical Indian social order, in which some communities were perceived as unclean and polluted from birth. The link between criminality and s*xual non-conformity was made more explicit in the 1897 amendment to the Criminal Tribes Act on 1871, which was sub-titled, ‘An act for the Registration of Criminal Tribes and Eunuchs’. Under this law, the local government was required to keep a register of the names and residences of all eunuchs who were "reasonably suspected of kidnapping or castrating children or committing offences under Section 377 of the Indian Penal Code". Any eunuch so registered could be arrested without warrant and punished with imprisonment of up to two years or with a fine or both. The law also decreed eunuchs as incapable of acting as a guardian, making a gift, drawing up a will or adopting a son.
Regarding Civil law they are also not spared here. The hijra community is deprived of several rights under civil law because Indian law recognizes only two s*xes. This means that hijras do not have the rights to vote, marry and own a ration card, a passport or a driving license or claim employment and health benefits. In north and central India, hijras, who have contested and won elections to local and State bodies, are now facing legal challenges. In February 2003, the Madhya Pradesh High Court struck down the election of Kamala Jaan as the Mayor of the Municipal Corporation of Katni. The court's logic was that since Kamala Jaan was not a woman, she could not contest the seat, which was reserved for women. Lawyer Pratul Shandilya, who is arguing Kamala Jaan's case, said: "I have already filed the Special Leave Petition (SLP) before the Supreme Court, and the court has also granted leave in the petition." The High Court verdict came despite a direction from the Election Commission (E.C.) in September 1994 that hijras can be registered in the electoral roles either as male or female depending on their statement at the time of enrolment. This direction was given by the E.C. after Shabnam, a hijra candidate from the Sihagpur Assembly constituency in Madhya Pradesh, wrote to the Chief Election Commissioner enquiring about which category hijras were classified under.
The law that is used most to threaten the hijra and kothi communities, as well as the homos*xual community in India, is Section 377 of the IPC, which criminalizes "carnal intercourse against the order of nature with any man, woman or animal" even if it is voluntary. In effect, it criminalizes certain kinds of s*xual acts that are perceived to be `unnatural'. The law, which has its origin in colonial ideas of morality, in effect presumes that a hijra or a homos*xual person is engaging in `carnal intercourse against the order of nature", thus making this entire lot of marginalized communities vulnerable to police harassment and arrest. The Immoral Traffic Prevention Act (ITPA) of 1956 (amended in 1986), whose stated objective is to criminalize brothel-keeping, trafficking, pimping and soliciting, in reality targets the visible figure of the s*x worker and enables the police to arrest and intimidate the transgender s*x-worker population.
According to the two main diagnostic systems used in the Indian medical establishment, transs*xualism is defined as a `gender identity disorder'. The doctors usually prescribe a s*xual reassignment surgery (SRS), which currently resorts to hormone therapy and surgical reconstruction and may include electrolysis, speech therapy and counseling. Surgical construction could include the removal of male s*x organs and the construction of female ones. Since government hospitals and qualified private practitioners do not usually perform SRS, many hijras go to quacks, thus placing themselves at serious risk. Neither the Indian Council for Medical Research (ICMR) nor the Medical Council of India (MCI) has formulated any guidelines to be followed in SRS. The attitude of the medical establishment has only reinforced the low sense of self-worth that many hijras have at various moments in their lives.
With every single thing going against the Eunuchs; a notable amount of awareness has also been seen all over the world. Around the world, countries are beginning to recognize the rights of transgender people. In a landmark judgment (Christine Goodwin vs. the United Kingdom, 2002) the European Court of Human Rights declared that the U.K. government's failure to alter the birth certificates of transs*xual people or to allow them to marry in their new gender role was a breach of the European Convention on Human Rights. It said that a test of biological factors could no longer be used to deny recognition legally to the change of gender that a transs*xual had undergone. In New Zealand, in New Zealand Attorney General vs. the Family Court at Otahuhu (1994), the court upheld the principle that for purposes of marriage, transs*xual people should be legally recognized in their re-assigned s*x.
OF late the Indian hijra community has begun to mobilize themselves through the formation of a collective. Sangama, an organization working with hijras, kothis and s*x workers in Bangalore, has played an important role by helping them organize and fight for their rights. Its services include organizing a drop-in centre for hijras and kothis, conducting a series of public rallies and marches, using legal assistance in case of police harassment, and establishing links with other social movements.
The organizations of the hijra community can be seen as constituting a larger movement of s*xual minority groups in India. They are challenging the constitutional validity of Section 377 and are organizing a campaign questioning the government's stand that the law should remain. The discrimination and violence that hijras face show that it is high time that both the government and the human rights movement in the country begin to take this issue with the seriousness it deserves.
The author can be reached at: aswkrab@legalserviceindia.com
