In a landmark victory decision for trans people everywhere, India’s Supreme Court ruled that transsexual and transgender persons have the right to self-identify their own gender. This decision resounds in direct contrast to the stigma which trans folks contend with every day of their entire lives.
The implication of the ruling is that Indians who identify as trans can now identify themselves as belonging to the third gender. That is, they do not have to submit medical evidence of their sexuality to be recognized by the government as being part of that gender.
The decision, focused on basic human rights, was in response to a plea filed by India’s National Legal Services Authority two years ago. The request was made on behalf of India’s transsexual communities, which are called hijira, meaning third-gender. The law change is focused on gender identification and the removal of discrimination based on that identity. Furthermore, medical or surgical change is not necessary for the law to apply to an individual. Rather, self-determination is what guides its application.
Moreover, guidelines are set regarding India’s federal and state governments in carrying out the edict. They must follow the standard that “gender identity is integral to human dignity.” The ruling also said that gender identity is at the “core of personal autonomy” and deeply affects a person’s self-determination. The new law allows transgender and transsexual people to continue their education or be employed by government agencies, protected in their third-gender role.
The India court decision was celebrated by human rights groups as a victory for transgender people around the world. However, the battle is not over. India, like nearly 90 nations worldwide, also has a law that criminalizes homosexual behavior, making it illegal for LBGT people to be known as gay or lesbian. In fact, that law was newly reinforced prior to an upcoming election in India, which reversed a 2009 decriminalization that at the time had been met with euphoria. The recent India ruling calls homosexuality “carnal acts against nature.” The penalty in India affects tens of millions of people and is unlikely to be overturned, or if it is, it would take many years. Those convicted face up to ten years in jail as well as harassment. Punishments in other countries include imprisonment, “corrective rape,” and possibly the death penalty.
What is monumental about the India Supreme Court decision is the contrast between how transgender and transsexual people have lived in India – and globally – for centuries and the potential to live without daily law-enforced oppression. Human Rights Watch (HRW) director, Graeme Reid, says that the new law represents a change in acknowledging the painful reality that trans people have to endure. And, L Ramakrishnan, senior organizer of the Rainbow Coalition in the city of Tamil Nadu states that the acknowledgement of third-gender people is an important turning point for sexual minorities in India.
HRW’s Reid speaks of the key role that hijira people played in traditional society. The best-known and important traditional role for hijiras is to be hired as cultural performers in homes, at the highly celebrated birth of a male child. Another role is to perform at a marriage, to bless the couple with fertility. In order to fulfill this role, the performers must be “real” hijiras. That is, they must be intersexed or emasculated, and dance in women’s clothing.
In today’s society in India, however, nearly 75 percent of more than 1,000 third-gender people who live in the city of Chennai, have no economic choice other than to be sex workers. Sahodaran, a trans advocacy group in that city, hopes that the options of transsexual and transgender folks will be increased as a result of the court ruling. If they can have full choice to determine not only their identity, but also their lives, true victory will have been won.
By Fern Remedi-Brown