Transgender Community In India : Past

Transgender is a term used to describe the people whose gender identity and expression does not match the sex determined at birth. A transgender woman lives as a woman today, but was thought to be male when she was born. A transgender man lives as a man today, but was thought to be female when he was born.

Historically, transgenders were based in Hinduism and they performed solely for Hindus but they were not all Hindu themselves.  Many of them were were Muslims and a few were Christians too.  In fact, some transgenders followed the beliefs and practices of both Hinduism and Islam.  Just as they were not limited by binary views of gender, some were not limited by a single religious tradition.

They were expected to perform dances, songs, and blessings at both births and weddings of Hindus.  To many Hindus, a transgender’s blessings of a baby would confer fertility, prosperity, and long life on the child.  One to two days after a marriage ceremony—transgenders would perform to bless the couple for fertility. They could also curse a family if they were disrespectful or refused to pay for the blessings.  Many Hindus and the transgenders themselves, took these blessings and curses very seriously.

While transgenders were often invited to perform these rituals, they would also attend births and marriages unannounced claiming their right to attend as their sacred religious duty.  Fearful of receiving a curse from transgenders, Hindu families often welcomed them in and paid them for their services even when uninvited.  However, sometimes Hindu families refused them entry or refused to pay, even went as far as calling the police.  Still the cultural authority of the hijra was so powerful that the police would often do nothing to remove them.  Transgenders were treated with both respect and fear.

Under the Mughal rule, transgenders were called Khawjasaras which was a designation of respect and dignity. Transgenders were employed as security officials in charge of female quarters. This role was assigned to transgenders in imitation of their historic role in holy cities where they served as facilitators between men and women performing prayers and pilgrimage. In most parts of the Muslim world, transgenders commanded respect and were considered holy and special in the eyes of God.

They served as courtiers and councils, giving advice to princes and princesses. They were familiar with court etiquettes and knew the secret workings of Mughal households. They were domestic insiders. Having the controls of intelligence officers and the prestige of royal confidantes, transgenders enjoyed special powers and privileges unavailable even to the most powerful wazirs (ministers) of the kingdom. They were educated in statecraft and nuances of religion. This treatment and elevation in the Mughal courts provided a great incentive for non-Muslim transgenders to accept Islam.

The spirituality of transgenders was considered as authentic as that of men and women. The Prophet of Islam treated transgenders with respect, prohibited their ill-treatment and had good things to say about spiritually-inclined transgenders. Believing that transgenders are dearer to God, some Muslim rulers appointed them as intercessors in royal palaces.

In the beginning of the British period in Indian subcontinent, hijra used to accept protections and benefits by some Indian states through entry into the hijra community. Furthermore, the benefits incorporated the provision of land, rights of food and smaller amount of money from agricultural households in exact area were ultimately removed through British legislation because the land was not inherited through blood relations.

Through the onset of colonial rule from the 18th century onwards, the situation changed drastically. Accounts of early European travelers showed that they were repulsed by the sight of Hijras and could not comprehend why they were given so much respect in the royal courts and other institutions.

In the second half of the 19th century, the British colonial administration vigorously sought to criminalize the hijra community and to deny them the civil rights. This was on the basis of Christian beliefs on gender. Ethnocentrism is very much visible in this context. Hijras were considered to be separate caste or tribe in different parts of India by the colonial administration. The Criminal Tribes Act of 1871, instructed colonial authorities to arrest all hijra who were concerned in kidnapping, castrating children and dressed like women to dance in public places. The punishment for such activities was up to two years imprisonment and a fine or both. This pre-partition history influences the vulnerable circumstances of hijra in this contemporary India.

The state of Transgender People in India

The Central Government has informed the Kerala High Court that currently, transgender persons are not legally allowed to enter the National Cadet Corps and the armed forces. The Government also stated that it is their prerogative to create a new division for the third gender. In light of this statement, let us look at the rights afforded to transgender people under the law.

In India, the Transgender Persons (Protection of Rights) Act, 2019 protects the rights of transgender persons and provides for their welfare.

A transgender person is any person whose gender does not match with the gender assigned to that person at birth. This includes:

  • A trans-man or trans-woman
  • A person with intersex variations
  • Any genderqueer person
  • People having socio-cultural identities such as kinner, hijra, aravani, jogta, etc.

Educational institutions which are funded or recognised by the government must provide inclusive education and opportunities to transgender people under the law. These educational institutions are not allowed to discriminate against transgender people and have to treat them on an equal basis with other people.

No establishment should discriminate against any transgender person in matters relating to employment, including recruitment, promotion, etc. This applies to establishments including government bodies, companies, firms, cooperatives, associations, agencies, and other institutions. 

Further, no person or establishment can discriminate against transgender people by denying them healthcare services. Transgender people cannot be denied access to goods, accommodation, benefits, opportunities, etc. that are available to the public. Moreover, no one can deny a transgender person’s right of movement and right to occupy or purchase any property.

A transgender person has the right to be recognised as such a person, and has a right to self-perceived gender identity. Any transgender person can apply to the District Magistrate for issuing a certificate of identity as a transgender person. In the case of a minor child, the application should be made by the parent or guardian of the child.

  • Transgenders do not enjoy a legal recognition in India like most of the Asian counterparts.
  • However, some states like Tamil Nadu, Kerala and Odisha recognise transgenders as the third gender.
  • The Transgender Persons (Protection of Rights) Bill, 2016, intended towards the protection of transgenders is yet to be passed.
  • The Bill defines a transgender person as one who is partly female or male; or a combination of female and male; or neither female nor male.  In addition, the person’s gender must not match the gender assigned at birth.
  • The bill includes trans-men, trans-women, persons with intersex variations and gender-queers.

The law punishes anyone who:

  • Forces or convinces a transgender person to get involved in forced or bonded labour.
  • Obstructs a transgender person from having access to a public place to which other people have access.
  • Forces or causes a transgender person to leave a household, village, or other place of residence.
  • Injures or endangers the life, safety, health, or well-being of a transgender person.

The punishment for doing any of these acts is imprisonment of six months to two years, along with a fine.