Can the Third Sex Speak: A Human Rights Perspective
My name is Sachin and I am 23 years old. As a child I always enjoyed putting make-up like 'vibhuti' or 'kum kum' and my parents always saw me as a girl. I am male but I only have female feelings. I used to help my mother in all the housework like cooking, washing and cleaning. Over the years I started assuming more of the domestic responsibilities at home.
The neighbours started teasing me. They would call out to me and ask: 'Why don't you go out and work like a man?' or 'Why are you staying at home like a girl?' But I liked being a girl. I felt shy about going out and working. Relatives would also mock and scold me on this score. Every day I would go out of the house to bring water. And as I walked back with the water I would always be teased. I felt very ashamed. I even felt suicidal. How could I live like that? But my parents never protested. They were helpless."
(Sachin's Story, A Peoples Union for Civil Liberties (Karnataka) Report on Human Rights Violations against the Transgender Community, released in September 2003.)
Baklas, Berdaches, Serres, Hijras, Jogappas, Shiv shaktis, Aravanis - these are the various names given to the Eunuch Community all over the world. This community traces back its roots in a well established culture of more than 4,000 years in an Indian epic like Mahabharata. The legend in the Mahabharata is that Aravan, the son of Arjuna and Nagakanya, offers to be sacrificed to Goddess Kali to ensure the victory of the Pandavas in the Kurukshetra war. The only condition that he made was to spend the last night of his life in matrimony. Since no woman was willing to marry one who was doomed to be killed, Krishna assumes the form of a beautiful woman called Mohini and marries him. The Hijras of Tamil Nadu consider Aravan their progenitor and call themselves aravanis.
In common parlance, "Human Rights" refer to basic rights which a person is entitled to enjoy for being born as a human being. A formal description of these basic rights is found in the Universal Declaration on Human Rights which contains a Preamble followed by thirty articles providing for civil, political, economic, social and cultural rights including the right to live, liberty, security, prohibition against slavery, torture, inhuman, degrading or cruel treatment, equality before law, right to education, right to privacy, freedom of movement, speech, religion etc.
The world is championing the cause of Human Rights, especially atrocities against women and children. However, even after an existence of over 40 centuries, no steps have been taken to assure the eunuchs of their social, cultural, civil, political and economic rights. They are marginalized and discriminated against. They meet social ostracism from the heterosexual society which believes in the colonial binaries of male and female and specific roles have been assigned to both. The hegemony of heterosexuality is created by culture and society, and human psychology becomes a prey to this dominant ideology.
The patriarchal society creates this distinction between man and woman as being superior and inferior. If any man deviates from this yardstick, behaves in an effeminate or womanly fashion, and imitates the 'weaker sex', then he is labeled as being abnormal. Due regard is not given to his transsexuality. His own family and society pose questions like - "why don't you go out and work like a man? Why are you staying at home like a girl?"
Ever since I can remember, I have always identified myself as a woman. I lived in Namakkal, a small town in Tamil Nadu. When I was in the 10th standard I realised that the only way for me to be comfortable was to join the Hijras community. It was then that my family found out that I frequently met Hijras who lived in the city. One day, when my father was away, my brother, encouraged by my mother, started beating me with a cricket bat. I locked myself in a room to escape from the beatings. My mother and brother then tried to break into the room to beat me up further. Some of my relatives intervened and brought me out of the room. I related my ordeal to an uncle of mine who gave me Rs.50 and asked me to go home. Instead, I took the money and went to live with a group of Hijras in Erode.
(Sachin's Story, A Peoples Union for Civil Liberties (Karnataka) Report on Human Rights Violations against the Transgender Community, released in September 2003.)
The institution of family plays a significant role in the marginalization of Hijras and Kothis. Instead of protecting their child from the violence inflicted by the larger society, the family is often an arena where the intolerances prevalent in society get enacted. They have to face daily humiliation and beatings from the family itself.
Then one day my parents asked me to leave the village to avoid the shame. 'Go work somewhere else', they said. I don't know how to read or write, I never went to school, how would I ever get a job? That night I cried a lot. I realised that for my parents respect in society was much more important than their own son. I drank some rat poison, hoping to kill myself. But I started throwing up which woke my parents up. They rushed me to the hospital where I recovered. I told my parents, 'You wanted me to leave, I have nowhere to go. No education. No skills. I wanted to kill myself.'(Sachin's Story, A Peoples Union for Civil Liberties (Karnataka) Report on Human Rights Violations against the Transgender Community, released in September 2003.)
And once they become financially independent, the attitude of the family changes drastically. They still resist the concept of being a eunuch but are willing to use the money which their eunuch child brings home.
I am beginning to see a change in the way my family treats me. Now because I am earning, my mother wants me to stay at home. When I go back to the village, no one says anything, because I am earning now. My mother asks me for a fan, a tape recorder, a new stove. I have been giving them money for all this. I have also bought jewellery and other presents for my sisters' kids.(Sachin's Story, A Peoples Union for Civil Liberties (Karnataka) Report on Human Rights Violations against the Transgender Community, released in September 2003.)
Media plays an important role in hegemonising heterosexuality by reinforcing the gender stereotypes. Media addresses them as lurid, sleazy and evil. In December 2002, Chandini, a Hijra from Bangalore, died of severe burns in her home. The Hijra community alleged that her husband, who had a long-standing relationship with her, had murdered her for money, and demanded that an impartial probe be held. The police refused and stuck to their version that it was a case of suicide. The local newspapers, including Police News, portrayed the incident as an exciting romantic tryst between two strangers, in which the unsuspecting man discovered the true sexual identity of the wily Hijra. An article in Lankesh Patrike by R. Somnath described Hijras as freaks of the underworld, half-man half-woman, almost devilish in their customs and practices.
This reminds me of Edward Said's work according to which the Occident seeks to define the Orient in this light. There is always an 'otherness' about the other which is darker than the self and is based on a desire to establish a supremacy over the other by so projecting it. The use of the word "eunuch" or "napumsaka" itself stems from the patriarchal notion of masculinity and sexual potency. Time and again, the media seeks to define and lay the standards of being "normal" as being heterosexual.
The Chandni case reveals how Chandni's sexual and cross gender identity is seen not as a choice but as a deception, a trick to lure innocent men with.
In recent Bollywood movies, Masti and Kal Ho Na Ho, a mockery of homosexuality was the essence of the comedy revealing how the yardstick of heterosexuality reigns supreme. When sexual minorities are present on television shows or movies or serials it is unfortunate that the roles they play often tend to enforce prevalent stereotypes.
Though "homosexual" is too narrow a term to encompass the eunuch community, media can help to increase tolerance of sexual diversity in society by bringing into people's homes images of unfamiliar sexual identities. The media can play a role in making the population more - or less - comfortable with these ways of living and can do away with the gender stereotypes to spread awareness in the society.
The Criminal Tribes Act of 1871
The eunuchs are exploited in a double bondage in the colonial and patriarchal legal system. Colonial perception of eunuchs as expressed by a British officer Mac Munn in relation to criminal tribes is that they are absolutely the scum, the flotsam and the jetsam of Indian life, of no more regard than the beasts of the field. (Baxi Upendra, Human Rights Violations against the Transgender Community: A PUCL Report)
The term "criminal tribes" was concocted by the British rulers that targeted itinerant communities comprising entertainers such as singers, dancers, acrobats, tight rope walkers, fortune tellers etc. and entered the public vocabulary for the first time when a piece of legislation called the Criminal Tribes Act was passed in 1871 (hereinafter referred to as CTA). It notified about 150 tribes around India as criminal, giving the police wide powers to arrest them and monitor their movements.
The effect of this law was simple: just being born into one of those 150 tribes made one a criminal. The link between criminality and sexual non conformity was made explicit in 1897 Amendment to the Criminal Tribes Act of 1871, which was subtitled 'An Act for the Registration of Criminal Tribes and Eunuchs'. Under the provisions of this statute, a eunuch was "deemed to include all members of the male sex who admit themselves, or on medical inspection clearly appear, to be impotent". 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 who appeared "dressed or ornamented like a woman in a public street...or who dances or plays music or takes part in any public exhibition, in a public street... [could] be arrested without any warrant and punished with imprisonment of upto two years or with a fine or both".
After India became independent, the Constitution framers thought of bringing all such groups out of entrenched prejudices and to develop them socially and economically, so that they could enjoy the constitutional right of equality. Nonetheless, it took them half a decade to repeal the CTA, 1871, and its two concomitant Acts — Habitual Offenders Act (HOA) and Habitual Offenders Restrictions Act (HORA) in 1952. But, once labelled as criminals, the social stigma continues and the society still harbours the same prejudices and false notions created by the British rule.
The prejudice creeps not only into individuals but also social groups. These ex-criminals continue to be identified, treated and persecuted as born criminals not only by individual groups but by society at large. Even in police records, despite orders to the contrary, they remain criminals. If there is any criminal act, the "Criminal Tribes" of the nearest settlement are suspected. Not only are they arrested without any warrant and detained but beaten up and tortured to obtain a confession. However, it is the poor, marginal and deprived social groups who are worst affected and are at the receiving end. Their marginality results from racial, sexual, ethnic, social, linguistic, and cultural discrimination. Although "prejudice is a common human instinct yet state-sponsored prejudice can spell disaster for humanity".
There is but one law for all; namely, that law which governs all law, - the law of our Creator, the law of humanity, justice, equity; the law of nature and nations.(Burke)
Universal Declaration holds that "all human beings are born free and equal in dignity and rights" (Article 1) and that "everyone is entitled to all rights" (Article 2). In other words, everyone irrespective of gender, race, caste, creed etc. is entitled to human rights. Human rights and personal liberty are closely connected to human dignity. Human dignity means that an individual or a group feels self-respect and self-worth. It is concerned with the physical and psychological integrity and empowerment. It is harmed by the unfair treatment premised on personal traits or circumstances which do not relate to individual needs, capacities or merits.
It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals or groups are marginalized, ignored or devalued, and is enhanced when laws recognize the full pace of all individuals and groups within society. Right to Dignity has not been specifically provided as a Fundamental Right in the Indian Constitution, but the Supreme Court in its ever expanding scope of Article 21 has included Right to Dignity as part of Right to Life. In Francis Coralie v. Union Territory of Delhi, Bhagwati J. opined:
We think that the right to life includes the right to live with human dignity and all that goes along with it, namely the bare necessities of life such as adequate nutrition, clothing and shelter over the head and the facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.
Rejection of any rights is discrimination as per Article 2, paragraph 1 of International Covenant on Civil and Political Rights and Article 1 of the Convention on Elimination of all forms of Racial Discrimination. Though the term 'Human Rights' has not been expressly used, the humanitarian character of the constitution is emphasized in the Preamble itself, which seeks to secure to all citizens:
- Justice - social, economic and political;
- Liberty - of thought, expression, belief, faith and worship;
- Equality - of status and of opportunity;
and to promote among them all
- Fraternity - assuring the dignity of the individual and the unity and integrity of the nation.
Despite the fact that the Indian constitution also guarantees equal treatment and protection, irrespective of sex, religion, caste, etc., the rights are granted on the basis of gender. The fundamental rights exist for the rich and the affluent. Poor have neither access to courts nor education to claim fundamental rights. In North and Central India, Hijras, who have contested and won elections to local and state bodies, are now facing 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 logic given by the court was that since Kamala Jaan was not a woman, she could not contest the seat, which was reserved for women. What to talk of contesting elections, some are not even given right to vote, right to claim a formal identity through a passport, a ration card, a driver's license, right to education, right to health, right to employment, right to own property, right to marry etc. The Indian administration requires identification of gender, judged in accordance to the biological standards as male or female, for every purpose- admission, registration, ration, voting cards, passport, etc. There is no place for the third sex in these columns. They are marginalized and isolated which results in discrimination in terms of access to education, employment, health care, etc. - a direct violation of their fundamental rights.
Apart from this, they are denied a right to sexual identity because they are not born in accordance with 'biological standards' required by law and society. Psychology does not play a role in this. For example in Corbett v Corbett , it was held that the sex of a person is determined at birth in accordance with stated biological criteria and without any considerations of the person's psychological sex. This disparity between their appearance and their official identification creates innumerable legal and social problems. Eunuchs in India often like to identify as 'third sex', while some prefer to be identified as 'women', but they are denied both the status.
The Indian Constitution guarantees that states have an obligation to ensure that no one faces discrimination on the basis of sex. 'Sexual identity' is an essential component of human expression, and inherent in the fundamental right to freedom of expression.
The educated English speaking eunuchs do not face this treatment because of their social and economic status in the society. They become fashion designers, interior decorators, hair stylists etc. Someone has rightly said that written laws like spider's webs only entangle and hold the poor and weak, while the rich and powerful easily break through them.
Indian Penal Code
Sexual Reassignment Surgery
According to two main diagnostic systems used in Indian medical establishment, transsexualism is defined as a 'gender identity disorder'. The doctors usually prescribe a Sexual Reassignment Surgery (SRS), which currently resorts to hormone therapy and surgical reconstruction and may include electrolysis, speech therapy and counselling. Surgical construction could include the removal of male sex organs and the construction of female ones.
Under Section 320 of the Indian Penal Code (IPC) 'emasculating' (castrating) someone is causing him 'grievous hurt' for which one can be punished. And under Section 322 , IPC even 'voluntarily causing grievous hurt' is a punishable offence. Therefore even if one voluntarily (with consent) chooses to emasculate oneself the doctor will be liable to punishment under this provision and the person undergoing the emasculation could also be punished for 'abetting', aiding in this offence. Since government hospitals and qualified private practitioners do not usually perform Sexual Reassignment Surgery due to fear of prosecution, many Hijras go to quacks, thus placing themselves at serious risk.
Very few eunuchs, who can find the resources and a willing doctor, manage to get surgeries like castration but again they are performed in highly surreptitious circumstances, leaving little space for quality, efficiency and accountability. As a result most eunuchs all over the country continue to follow traditional practices of castration that often result in fatal consequences. This is a direct violation of the right to health care, which has been held to constitute an important element of the fundamental right to life. Neither the Indian Council for Medical Research (ICMR) nor the Medical Council of India (MCI) has formulated any guidelines to be followed in SRS.
Frustration and hunger pangs drove a eunuch 40-year-old Iqbal to amputate his underdeveloped genitals. Though his behaviour and physical features were more like a eunuch, due to the presence of genitals, in vestigial form, he was being not accepted in the community. He neither used to get any share out of the collections made by the community, nor was he accepted as an employee by the outside world for obvious reasons. As a result, he had to live at the mercy of a few 'generous' eunuchs who, however, used to exploit him for the little they spared. Therefore, he decided to get them chopped off from a quack who stitched it haphazardly along with the urethra, thereby closing the urinary track. However, as soon as the urinary bladder swelled with liquid, the bleeding started profusely. When these inferior treatments could not bring any relief, Iqbal rushed to medical college. Such horrid incidents reveal the importance of SRS in the life of a transsexual.
Section 377 of the Indian Penal Code criminalizes carnal intercourse which is against the order of nature. This section is intended to punish sodomy, buggery and bestiality. Over 50 countries have blocked anti-sodomy laws. In many countries, the law does not expressly permit or prohibit the acts of sodomy. Moreover, in some countries, bills have been passed and are waiting for necessary legislation to decriminalize such acts. In the remaining part of the globe, such acts are punishable. Despite this law which punishes sodomy, the acts are still performed.
But the entire queer people in India, particularly the Hijras and Kothi sex worker population, are vulnerable to harassment under Section 377. Going by the nature of availability of space, most often it is the marginalized populations who engage in the sexual activity proscribed under this section in public areas such as parks and public toilets and hence end up being vulnerable to arrest.
Immoral Trafficking Prevention Act, 1986
Immoral Trafficking Prevention Act, 1986 (ITPA) is another Indian State's regulation of prostitution whose mandate is to prevent the traffic of women and children into prostitution. The objective of the law on trafficking is not to criminalize prostitution per se but to criminalize brothel keeping, trafficking, pimping and soliciting. The enforcement of ITPA targets the visible figure of the sex worker and generally spares the hidden and powerful system that supports the institution of sex work. Under the amended act, there is shift of focus from women (female gender) to any person (any other gender).
Sex work, however, is allowed to exist as 'a necessary evil' because it serves a male sexual need, but its practice has to be continually hedged around with legal structures, police harassment and intimidation. For many Hijras and Kothis, sex work is the only option because no one is willing to employ them because of their gender identity. Even as commercial sex workers, Hijras are the most vulnerable group as they are placed right at the bottom of the hierarchy of sex workers. This results in their having little bargaining power and being unable to ensure that their customers practice safe sex. They are also at the risk of violence both from the customers and the police.
The State Machinery
Once I met a man but he was a police officer. He asked me to come and have sex with him. I asked for Rs.50 but he said that he would only give me Rs.20. I said o.k. and started sucking him. But after he came he just walked away. I stopped him and asked him for my money but he said that he won't pay. I told him that I would complain, and he laughed at me stating that I had no proof. Then I showed him the condom, tied carefully in a knot that still had his sperm. He said, "Who knows that it's mine?" and left the place.
The harassment and surveillance by the police sometimes extends into privacy of their homes. The place with the most scope for abuse is the police station where the police, on a regular basis, violate all the canons of civilized behavior by physically, sexually and verbally abusing and humiliating Hijras and Kothis. Eunuchs are stripped; their private parts are probed with sticks on the pretext of determining their sexual identity. And if police is not convinced, they are raped.
A policeman caught Sachin, a eunuch and took him in the bushes and asked him to remove his clothes to see if he could get his penis up. He started hitting Sachin with a lathi, took Rs. 100 from him and raped him. Similarly, Smita was taken to Cubbon Park Police station where on her way she was sexually harassed and when she reached the Police Station, she was sexually abused. Some men have also extended this treatment to the third sex; they rape them and run away without paying money. Some also run away with the clothes. These are indeed shocking and brutal instances of sexual violence but have become everyday reality of life of Hijras and Kothi sex workers in some parts of India.
As observed by Upendra Baxi, President of the Indian Society of International Law, the reason why the sexuality of Hijras incites such gratuitous violence could be twofold. First, since sexuality is often the most intimate part of a person, sexual abuse and violence can be seen as the most systematic tool for dehumanizing an individual. Second, the sexual nature of the violation can be understood as an apt punishment for a transgressive sexuality.
The first People's Union for Civil Liberties report indicates that the police capitalize on the fears of the queer community and deeper societal homophobia in order to blatantly subject queer people to all forms of harassment and violence, knowing fully well that the third sex will never speak against the state machinery and even if they do so, well, who will listen?
Role of Civil Society
The weed of discrimination against the third sex is embedded in both State and Civil society. The violence that this community faces is not only due to the State but also has deep societal roots. The stereotypes of heterosexuality are frequently enforced by media, family and law and it punishes an individual who subverts this social order.
We don't need you to love us, or give us anything to eat, just treat us like human beings. (Sahay Smita, Kajol, a eunuch in India's 'third sex': ridiculed, persecuted, shunned.)
The UN-laid Millenium Development Goals (MDGs) have to be achieved uniformly by all states. It has overlooked the eunuch community which is poorest of the poor, and, more oppressed and marginalised of the downtrodden sections. The fruits of globalisation and development do not reach this section of the society. The MDGs are not sufficient to pacify special needs of each country based on inherent difference in their social, cultural and historical backgrounds. The responsible members of International Community should make an attempt to sub categorize the goals to include the eunuch community as target groups in poverty alleviation and literacy programme etc. in the MDGs.
The time has come when we should fight for the rights of sexual minorities. We should not stand aside and witness the gross and systematic violations of human rights. The human rights movement depends on government compliance with international covenants and conventions which become binding, contractual treaties with the authority of law only when the state agrees of its own free will to accept the obligations contained therein; and victim advocacy for these rights.
The question then is that how will the suppressed and oppressed third sex speak for itself when it has no access to resources from which it can know or assert its rights? We must, as citizens of India, members of International Community and as Human Rights Advocates, reach out to them and educate them about their rights and help them fight for justice. We can speak on their behalf right now, and a time will come when the third sex will be able to speak for themselves!