India court recognises transgender people as third gender

[Nakandi]

India's Supreme Court has recognised transgender people as a third gender, in a landmark ruling.

"It is the right of every human being to choose their gender," it said in granting rights to those who identify themselves as neither male nor female.

It ordered the government to provide transgender people with quotas in jobs and education in line with other minorities, as well as key amenities.

According to one estimate, India has about two million transgender people.

In India, a common term used to describe transgender people, transsexuals, cross-dressers, eunuchs and transvestites is hijra.

Campaigners say they live on the fringes of society, often in poverty, ostracised because of their gender identity. Most make a living by singing and dancing or by begging and prostitution.

Rights groups say they often face huge discrimination and that sometimes hospitals refuse to admit them.

They have been forced to choose either male or female as their gender in most public spheres.

'Proud Indian'
"Recognition of transgenders as a third gender is not a social or medical issue but a human rights issue," Justice KS Radhakrishnan, who headed the two-judge Supreme Court bench, said in his ruling on Tuesday.

"Transgenders are also citizens of India" and they must be "provided equal opportunity to grow", the court said.

"The spirit of the Constitution is to provide equal opportunity to every citizen to grow and attain their potential, irrespective of caste, religion or gender."

The judges asked the government to treat them in line with other minorities officially categorised as "socially and economically backward", to enable them to get quotas in jobs and education.

"We are quite thrilled by the judgement," Anita Shenoy, lawyer for the petitioner National Legal Services Authority (Nalsa), told the BBC.

"The court order gives legal sanctity to the third gender. The judges said the government must make sure that they have access to medical care and other facilities like separate wards in hospitals and separate toilets," she said.

Prominent transgender activist Laxmi Narayan Tripathi, who was among the petitioners in the case, welcomed the judgement, saying the community had long suffered from discrimination and ignorance in the traditionally conservative country, reports the Agence France-Presse news agency.

"Today, for the first time I feel very proud to be an Indian," Ms Tripathi told reporters outside the court in Delhi.

In 2009, India's Election Commission took a first step by allowing transgenders to choose their gender as "other" on ballot forms.

But India is not the first country to recognise a third gender. Nepal recognised a third gender as early as in 2007 when the Supreme Court ordered the government to scrap all laws that discriminated on the basis of sexual orientation or gender identity. And last year, Bangladesh also recognised a third gender.

Tuesday's ruling comes after the Supreme Court's decision in December which criminalised gay sex by reversing a landmark 2009 Delhi High Court order which had decriminalised homosexual acts.

According to a 153-year-old colonial-era law - Section 377 of the Indian Penal Code - a same-sex relationship is an "unnatural offence" and punishable by a 10-year jail term.

Legal experts say Tuesday's judgement puts transgender people in a strange situation: on the one hand, they are now legally recognised and protected under the Constitution, but on the other hand they may be breaking the law if they have consensual gay sex.


http://www.bbc.com/news/world-asia-india-27031180

[Iniko Ujaama]

http://fuzzytheory.wordpress.com/2009/06/06/hijras-part-i/

Hijras – Part I


While it is still fresh in my head from teaching this year, I want to write a series of post about Hijras. Before I even get into it, I want to delineate what kind of posts these will be. I will not be doing anything anthropological or ethnographic. If you want some of that, I suggest checking out the work of Serena Nanda. Most of what I will be talking about is historical and theoretical. My main focus will be on how colonialism has and still does impact the lives of Hijras. In some ways my examination will be a case study of the post-colonial condition or the post-colonial predicament based on the Hijras. Once this has been examined to my satisfaction, I want to then look at what impact the category of Hijra has on our own understandings of sexuality and gender. To my mind, if we choose to understand Hijras in a certain way, it can shake up the very foundations of how know ourselves as sexual, sexed, and gendered beings.

For this first post, my focus will be on bringing to light our assumptions and the pre-understanding we carry with us coming into any examination of cross-cultural examinations of “other” modes of sexuality and gender.

We are not neutral subjects. In the last 30 years of intellectual and experiential inquiry, this has assuredly been shown to be not only a truism, but an ethico-political position. The assumption of neutrality is a privileged position; it is a position that is politically motivated in its very assumption that there can be such a thing as a neutral subject. We will see throughout this series of posts how this assumption of neutrality has in practice led to the privileging of certain parochial and finite understandings as if they were natural and universal. The assumption of neutrality is a clever and powerful tool to assert the political ascendency of only a certain kind of knowledge. In short, the “God’s eye view” is a power-play.



In order to explicate this position and locate it within very specific kinds of relations, it is necessary to examine where they come from and locate their histories. It should be no surprise that the myth of the universal neutral has had its most successful implementation in Western forms of knowing, clothed in the guise of science—and disseminated throughout colonial and imperial knowledge production. As a kind of fiction, let us examine the historical roots for the construction of sexuality during the colonial period that, specifically, led the British to propagate a certain kind of knowledge about sexuality and gender in India. Here, for expediency, I will be generalizing and not really making a distinction between the British impact on pre-Raj and British Raj forms of knowing.

Alright. Many of the examinations of 18th and 19th century sexuality in England are indebted to Michel Foucault’s analysis of the repressive hypothesis in his History of Sexuality: Volume One. I don’t wish to provide a summary of his argument, but rather to tease out those elements that impact the construction of colonial knowledge that the British brought to bear in India—but more importantly for this first post, how we have inherited 19th century discursive norms about sexuality and Gender. In this light, Foucault makes two important points. The first point is that the newly bourgeoning discourse of science was being brought to bear on the subject of sexuality with the premise of supporting a rising bourgeois middle class, and constructing a new socio-economic order based on this class. The myth of the nuclear family has its roots in this restructuring of knowledge to fit this new economic model.

The second point is that the idea that the Victorians (and colonial implications therein) had instituted a whole regime to repress sexuality needs to be looked at more closely. The idea is that at some point our sexuality was being repressed and that now we are undergoing a process to liberate ourselves from this repression. Foucault’s point is that regardless of the truth of whether we are, were, or will be repressed the very idea that we should liberate ourselves sets into motion a whole range of discourses about sexuality that shape our very experience of it. Much has been said about this. I am here more concerned with the processes of the science of sexuality and its construction of categories. The assumption of the universality of a bourgeois sexuality and its locus on the family for the purpose of reproduction, aligned with the science of sexuality that yearned to construct a taxonomy of sexuality engendered an increasing explosion of codified sexualities. The very repression (if it was such) of sexuality according to the bourgeois universal norm actually created more and more perversions, deviances, behaviors, and practices as the scientific gaze constructed category after category of deviance and placed them within an order of knowledge. Simply put, the wide-ranging and uniquely contextual experiences of sexuality were pinned down like butterflies as sexologists ran through the fields of sexuality with their categorical nets. Repression indeed.

How does this affect us today? All of our categories of sexuality and gender have their roots in this science of sexuality of the 19th century. Homosexuality was originally a term that meant what we think of today as heterosexuality. Eventually, in the second half of the 19th c. the binary of homosexuality and heterosexuality that forms the basis of contemporary knowledge of sexuality solidified. That we call certain behaviors and people homosexual and heterosexual and know what this means has a short history. The category of bisexuality was a contested term that was taken up in various foundational ways by people like Freud. The opposition of the sexes, long a “truth” was now codified in scientific discourse.

The reason I bring to bear this short historical narrative is to point out that the understanding we have today is a parochial one. It developed out of very specific historical circumstances, and was limited (at first) to Northern European constructions of knowledge. As we shall see, for example, the assumption of two genders, two sexes, is by no means a universal. Hijras in India and the Katheoy in South-East Asia, for example, are examples of a socially ratified third gender. While this understanding has gone through the ringer of colonialism in India, Thailand still holds this view, albeit with dramatic shifts in meaning from say five centuries ago. The point I am trying to make is that our assumptions and categories of sexuality will do us no good in understanding Hijras on their own terms. It would be a blatant act of intellectual imperialism to try and fit Hijras into parochial categories that may not be naturally applicable to Hijras in the context of their social ordering. To ignore this is to do violence to the realities of Hijras through history.

In order to understand Hijras, in history, in their various shifting contexts, we need to “forget” what we know about sexuality. Admittedly, this may be a most difficult task—for in the contemporary context, sexuality is foundational to identity in Euroamerican cultural contexts. Nonetheless, it is important to keep in mind that this understanding that is one of the foundational truths about ourselves is in fact historically contingent, and thus only a local truth at best. To assume otherwise is to be guilty of Eurocentricism (in this case, assuming that local Euroamerican understandings are natural, universal, and given) and in practice becomes a contemporary form of cultural imperialism.

I continue my analysis in two subsequent posts: Hijras: Colonization and Hijras: Decolonization.

Hijras: Colonization -http://fuzzytheory.wordpress.com/2009/06/17/hijras-part-ii-colonization/
Hijras: Decolonization-http://fuzzytheory.wordpress.com/2010/03/20/hijras-part-iii-decolonization/