Why Trans Genders Are Neglected In The Binary of Life?

by Shahnawaz Ahmad

The need is to tackle problems of the third gender by helping evolve a legally backed institutional mechanism to address their problems; spanning from mental health issues like fear, PRTD, PTSD, dystopia, shame, depression, suicidal tendencies to sensitizing the society about rights of the third gender.

A genderqueer waiting for his turn to collect the food kits in Srinagar is surrounded by other members who have already been provided with the kits. KL Image: Bilal Bahadur

March 31, every year, is the “International transgender day of visibility”. Like other “international days” dedicated to numerous spheres, celebrating or recognizing contributions of persons or institutions, belonging to different walks of life; for the transgender community, March 31 was another day of invisibility, like all other 364 days of a year.

The day, sadly, was marked by the absence of any “major activity” on or off social media to celebrate their life, their contributions or to highlight the miseries and pain these neglected souls face at the hands of those who enforce the “biased societal standards of hetero-normality” and consider themselves as champion defenders and guardian angels of same.

There were no trending hashtags, no marathons and sadly not even a doodle; which otherwise are a common sight. Perhaps speaking for this neglected gender is no more a catchy thing on social media, nor is it a hot cake to sell or form our opinions on. Imagine carrying a name that is still struggling to come visible onto the societal spectrum, with equal dignity and respect as enjoyed by the other two shades of life which we duly recognize and identify as male and female genders – something more inclusive and socially acceptable.

Where does society fail this“particular” gender?

Since times immemorial, the human race has witnessed discrimination in one way or the other. Some discriminatory practices, to a larger extent, have now vanished with the winds of change; apartheid being the best example to quote, while others have withstood the positive winds of change and exist in the same form and manner as before – the discrimination against the third gender being one of the best examples to quote.

When it comes to identifying gender, our buck stops at a binary; either male or female. Many of us also categorically refuse to identify a third human out of that binary spectrum – as someone who prefers to be called a gender or more appropriately as a transgender or as somebody who is not binary.

Missing Identity

Transgender, by definition, refers to a person whose gender identity is different (read special) from the sex assigned at birth; a choice that makes it hard for the person to live with dignity and honour. The result is that these less fortunate souls suffer systematic discrimination and prejudice based on their gender of sexual orientation in different spheres of life. The graph of violence committed on them suffers intermittent troughs only to be followed by more steady crests; accompanied by deteriorating mental health issues that are commonly found in this population subset.

With society as a whole not laying any claim of acceptance on the less fortunate individuals of the third gender, the result is often a social divide; dangerous, discriminatory and equally inhumane. They have suffered this systematic discrimination and prejudice based only on their gender or sexual orientation. Society at large has not been sensitized regarding the rights of the third gender.

There are remarkable loopholes and serious flaws even in the educational system, where no scope has been left for the introduction of courses intended to educate the students regarding the rights of the third gender; and therefore it leaves no room to facilitate gender sensitization, at school or even higher educational levels. This has left the student community out of the policymaking exercise on issues related to trans people. Bullying, mocking, and harassment of transgender students in educational institutes have led to an increase in dropout rates resulting in the waste of a productive workforce.

In healthcare also, trans-people face a lot of difficulties mainly arising because of lack of proper training and sensitization in hospital staff vis a viz the health vulnerabilities of transgenders like HIV infection and other sexually transmitted diseases. There is a lack of separate HIV sero surveillance centres for transgender as mandated by law.

Thus, the discrimination faced by transgenders remains an important concern for all reasonable sections of society and equally for institutions working for their welfare in India (and abroad). The stigma that the trans community faces leads to a lack of opportunities – a misanthropic form of exclusion from the benefits of social and moral acceptance.

Despite legal protections, the fate of these fence-sitters hangs in balance.

It was the year 2014 that Supreme Court pronounced its famous judgment in a case titled NSLA vs. UOI. The judgment, famously called NLSA judgment, apart from legally recognizing the “third gender” within the umbrella term of transgenders, also paved the way for transgenders to live a life of dignity and honour as enshrined in Articles 14, 19 and 21 of the Indian constitution, read with Yogyakarta principles; more appropriately principle 3.

Gender Bias

But, it has been near to a decade since the judgment was passed, yet the trans-persons in India continue to face a myriad of problems, condensing into the socio-economic and religious inequality they face. Not only this, transgenders have been devoid of their right to reservation in jobs and educational institutes, as mandated by the famous NLSA judgment.

The state governments have shown a deep sense of hesitancy in granting transpersons their share of reservations; the state of Karnataka being an exception, which has provided 1per cent reservation to trans-persons in government jobs. Moreover, due to the lack of a legally sanctioned institutional mechanism in place, transgenders have been deprived of their right to inherit property because in India inheritance of property is governed by personal laws of respective religion and community.

Gendered inheritance laws like “The Hindu succession Act of 1956 which is codified law to intestate succession among Hindus, Buddhists and Sikhs doesn’t mention or categorically define “Transgenders” vis a viz their succession ladder or inheritance of property thereof. Similarly, the Muslim Personal Law (Shariat) Application Act has also its shortcomings when it comes to “categorically” define and mandate the property share that transgenders can have based on what can be inferred from the terms used in the list of shares in Shia and Sunni inheritance laws.

The same denial of legally mandated property share is a clear violation of international laws like a universal declaration of human rights (UDHR) and the third of Yogyakarta principles. Also post decriminalization of homosexuality by reading down Section 377 of IPC (NavtejSinghJohar vs UOI) and despite the government enacting the Transgender Persons (Protection of Rights) Act 2019, in consonance with Navtej Singh judgment, the government has failed to honour the self-perceived gender identity.

Further, the government restricted same-sex couples to opt for altruistic surrogacy under the Surrogacy (Regulation) Act 2021, despite the fact that they are one of the most prospective categories of parents. Moreover, Transgenders have been deprived of adoption rights under personal laws. These loopholes despite judicial intervention point to the insensitive nature that successive governments in power have had for trans-genders vis a viz their rights.

Gender Crisis


Shahnawaz Ahmad

A fundamental question that needs to be asked is that people in their absolute choice continue to make changes in whatever they wish; in their personality, body, going for implants and what not – just to make sure that they look handsome. Even some change religion and nationality.

Among all these stories of hope, why has gender been one sacred thing that has become inert to change? The need is to tackle problems of the third gender by helping evolve a legally backed institutional mechanism to address their problems; spanning from mental health issues like fear, PRTD, PTSD, dystopia, shame, depression, suicidal tendencies to sensitizing the society about rights of the third gender.

(The writer is pursuing a master’s degree in political science and International relations through IGNOU. He writes on politics, conflict, social issues and education. The opinions expressed in this article are those of the author and do not purport to reflect the opinions or views of Kashmir Life.)

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