Third Gender Rights and Legislations across the World

By Sunit Kumar Mondal, GNLU

Editor’s Note: This paper discusses the third gender rights and the various legislations across the World. It covers Nepal, New Zealand and India and thereby, presents a comparative analysis of the same.

INTRODUCTION

This may be an interesting subject – for those who don’t have to deal with it at least. In a perfect world it would be the individual who chooses, but this can’t happen until adulthood, can it? It’s the parent that decides which school uniform to be worn – the colour of the bedroom – trunks or swimsuit – appearance in general. It’s not about the choice; it’s about pressure to choose. What a nightmare.

In recent times, the dynamics of legislation have reached a point where the countries like –New Zealand, Nepal, and India along with a number of South Asian countries. The third gender is now being legally recognised around the globe and for the newborns there is an option vested upon the parents for the child to be genetically operated into a male or female.

Intersex people, those born with reproductive or sexual anatomy that does not fit the typical definitions of female or male, are now able to list their gender on passports as X. Transgender people, whose perception of their own sex was at odds with their birth gender, are now able to pick whether they are male or female if their choice is supported by a doctor’s statement. Previously, gender was a choice of only male or female, and people were not allowed to change their gender on their passport without having had a sex-change operation.1

SITUATION IN NEPAL

On Dec. 27, 2007, the Supreme Court of Nepal issued a decision mandating that the government scrap all laws that discriminated based on sexual orientation and/or gender identity and establishes a committee to study same-sex marriage policy. The court took the unique approach of establishing a third-gender category. Nepalese official documents afford citizens three gender options: male, female, and “others”. This may include people who present or perform as a gender that is different from the one that was assigned to them at birth. Nepal’s 2011 census was the first national census in the world to allow people to register as a gender other than male or female. The 2007 Supreme Court decision ordered the government to issue citizenship ID.

SITUATION IN NEW ZEALAND

Birth certificates are available at birth showing “indeterminate” sex if it is not possible to assign a sex. The New Zealand Department of Internal Affairs states, “A person’s sex can be recorded as indeterminate at the time of birth if it cannot be ascertained that the person is either male or female, and there are a number of people so recorded.”2 Passports are available from December 2012 with an ‘X’ sex descriptor, where “X” means “indeterminate/unspecified”.3 These were originally introduced for people transitioning gender.4

SITUATION IN INDIA

The Hijra of India is most likely the most well known and crowded third sex sort in this dynamic world. As many as 175 complaints and issues were disposed of at the ”khula durbar” and most of these pertained to the grant of pension, making ration cards and BPL cards, cleaning of village pools, allotment of 100 sq m plots, drainage of water and removal of encroachments. The Constitution gives rights on the basis of citizenship and on the grounds of gender but the gross discrimination on the part of our legislature is evident. The Constitution, while it contains certain prohibited grounds of discrimination such as race, caste, creed, sex, etc., does not specifically include sexual orientation. A reading of Section 13 of General Clauses Act, 1897 which talks about gender and number makes the discrimination holders more apparent. It says: ”Words importing masculine gender shall be taken to include females”. This in itself shows that the law makers did not take cognizance of eunuchs.

Legal Discrimination against the sexuality minorities takes many forms, the most notorious being Section 377 of the Indian Penal Code (IPC).5 It reads:

”Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal, shall be punished with imprisonment of either description for a term which may extend to 10 years and also be liable to fine.”

There is no mention of eunuchs in this section, even as eunuchs are known to engage in prostitution. Neither the Hindu Marriage Act nor the Special Marriage Act mentions third gender. Degree of Prohibited relationship refers to any relationship between a man and woman that is mentioned in Part I and Part II of the First Schedule of the Act. The focus is on the male and the female sexes. The ‘third sex’ has conveniently been ignored. A BBC correspondent covering a eunuch festival in Bangalore in September, 2003 quoted a eunuch complain that due to their social unacceptability. Even a writ petition 6 was filed in October, 2012. The petition sought several directions from the Court, including granting of equal rights and protection to transgender persons; inclusion of a third category in recording one’s sex/gender in identity documents like the election card, passport, driving license and ration card; and for admission in educational institutions, hospitals, access to toilets, amongst others.

Jobs are denied to eunuchs due to their gender and they are ridiculed in the society. Time Magazine once interviewed a eunuch who complained that the application form for the job has only two sexes mentioned and makes it blatant how unwanted they are. Even if they apply, they are not allowed to enter the offices. The articles also said that the eunuchs were deprived of the liberty of opening bank accounts and possess passports. The BBC report also spoke about eunuchs being deprived of the right to vote as the people shun them. This is a matter of concern that a citizen of the largest democracy in the world is not given his fundamental right granted by any democracy.

The main cause for discrimination against eunuchs is the mindset of the society at large. Owing to the fact that these people are different in matters of their sexual preferences and are strong enough to show it, the society sees it as a violation of a norm and thus subjects them to isolation. Family and popular psychology play a predominant role in perpetuating the present dilemma law needs to step in to ensure that a relatively small but deeply aggrieved humiliate section of the civil society is given its rights guaranteed by the Constitution of the land.

Edited by Hariharan Kumar

1. http://www.theguardian.com/world/2011/sep/15/australian-passports-third-gender-option. Last Accessed 2014-03-19

2. Knight, Kyle (24 April 2012). “Nepal’s Third Gender and the Recognition of Gender Identity”. Huffington Post. Last accessed 2014-03-19.

3. Department of Internal Affairs, “General information regarding Declarations of Family Court as to sex to be shown on birth certificates”

4. http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10852012 X marks the spot on passport for transgender travellers], New Zealand Herald, 5 December 2012]. Last Accessed March 19, 2014.

5. Jaimie Veale – Academia.edu, “The prevalence of transsexualism among New Zealand passport holders, passports with an X sex descriptor are now available in New Zealand”, 2008. Last Accessed 2014-03-19

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