Did God Made Only Adam and Eve
(An Insight into the legal position of Eunuchs)
How often do we sit and question our gender or sexual
identity? Is it always the same as the biological sex that we are born in?
Can it be independent entity, irrespective of our biological sex? Most of
us assume, for lack of further information that our overall sexuality that
includes our sex, gender, sexual orientation and sexual behavior are all
determined at some point through some ‘natural’ genetic intervention
during our birth and there is nothing one can do about it. We are taught
to believe in strict binaries of male and female and the separate social
roles associated with both. Today when we see a television advertisement,
where our hero denies a young pretty woman’s courtship, just as he
realized that this attractive woman used to be a man.
Oh! And everyone chuckles. Well, it’s not that funny. Trans sexuality as a
phenomenon has gained very little visibility or knowledge in our society –
precisely why is it so easy for us to distance ourselves and laugh at it.
Our society in fact contains one of the most visible transgender cultures
in the world – the ‘Eunuch’ (Hijra) Community. Eunuchs might have an
accepted place in Indian society, but it is a place pretty much at the
bottom of the social heap – making them not just a sexual but also a
highly deprived social minority.
Transgender communities have existed in most parts of the world with their
own local identities, customs and rituals. They are called baklas in the
Philippines, berdaches among American Indian tribes, serrers in Africa and
hijras, jogappas, jogtas, shiv-shaktis and aravanis in South Asia. The
hijra community in India, which has a recorded history of more than 4,000
years, was considered to have special powers because of its third-gender
It was part of a well-established `eunuch culture' in many societies,
especially in West Asia, and its members held sanctioned positions in
royal courts. Hijras trace their origins to myths in the Ramayana and the
Mahabharata. Rama, while leaving for the forest upon being banished from
the kingdom for 14 years, turns around to his followers and asks all the
`men and women' to return to the city.
Among his followers the hijras alone do not feel bound by this direction
and decide to stay with him. Impressed with their devotion, Rama sanctions
them the power to confer blessings on people on auspicious occasions like
childbirth and marriage, and also at inaugural functions. This set the
stage for the custom of badhai in which hijras sing, dance and confer
blessings. But today, keeping in mind the pathetic condition of them one
can say that this community actually needs the blessings of Lord Rama more
than anyone so that at least they can subsist in the society with proper
dignity, respect and most of the most important identity.
Hijras (Eunuchs) in India have virtually no safe spaces, not even in their
families, where they are protected from prejudice and abuse. The PUCL(K)
Report on Human Rights Violations against the Transgender Community has
documented the kind of prejudice that hijras face in Bangalore. The report
shows that this prejudice is translated into violence, often of a brutal
nature, in public spaces, police stations, prisons and even in their
homes. The main factor behind the violence is that society is not able to
come to terms with the fact that hijras do not conform to the accepted
gender divisions. In addition to this, most hijras have a lower
middle-class background, which makes them susceptible to harassment by the
The discrimination based on their class and gender makes the hijra
community one of the most disempowered groups in Indian society. The
systematic violence that hijras face is reinforced by the institutions
such as the family, media and the medical establishments and is given
legitimacy by the legal system. The hijras face many sorts of state and
societal harassments such as:
Harassment by the police in public places
Harassment at home
Abuse/harassment at police stations
Rape in jails
The roots of contemporary violence against the hijra community can in
fact be traced back to the historical form that modern law in colonial
India has taken. It took the form of the enactment of the Criminal Tribes
Act, 1871 which was an extraordinary legislation that even departed from
the principles on which the Indian Penal Code was based. To establish an
offence under the India Penal Code, the accusations against the accused
has to be proved beyond reasonable doubt in court of law. But certain
tribes and communities were perceived to be criminals by birth, with
criminality being passed on from generation to generation. It fitted in
well with the hierarchical Indian social order, in which some communities
were perceived as unclean and polluted from birth.
The link between criminality and sexual non-conformity was made more
explicit in the 1897 amendment to the Criminal Tribes Act on 1871, which
was sub-titled, ‘An act for the Registration of Criminal Tribes and
Eunuchs’. Under this law, the local government was required to keep a
register of the names and residences of all eunuchs who were "reasonably
suspected of kidnapping or castrating children or committing offences
under Section 377 of the Indian Penal Code". Any eunuch so registered
could be arrested without warrant and punished with imprisonment of up to
two years or with a fine or both. The law also decreed eunuchs as
incapable of acting as a guardian, making a gift, drawing up a will or
adopting a son.
Regarding Civil law they are also not spared here. The hijra community is
deprived of several rights under civil law because Indian law recognizes
only two sexes. This means that hijras do not have the rights to vote,
marry and own a ration card, a passport or a driving license or claim
employment and health benefits. In north and central India, hijras, who
have contested and won elections to local and State bodies, are now facing
legal challenges. In February 2003, the Madhya Pradesh High Court struck
down the election of Kamala Jaan as the Mayor of the Municipal Corporation
of Katni. The court's logic was that since Kamala Jaan was not a woman,
she could not contest the seat, which was reserved for women. Lawyer
Pratul Shandilya, who is arguing Kamala Jaan's case, said: "I have already
filed the Special Leave Petition (SLP) before the Supreme Court, and the
court has also granted leave in the petition."
The High Court verdict came despite a direction from the Election
Commission (E.C.) in September 1994 that hijras can be registered in the
electoral roles either as male or female depending on their statement at
the time of enrolment. This direction was given by the E.C. after Shabnam,
a hijra candidate from the Sihagpur Assembly constituency in Madhya
Pradesh, wrote to the Chief Election Commissioner enquiring about which
category hijras were classified under.
The law that is used most to threaten the hijra and kothi communities, as
well as the homosexual community in India, is Section 377 of the IPC,
which criminalizes "carnal intercourse against the order of nature with
any man, woman or animal" even if it is voluntary.
In effect, it criminalizes certain kinds of sexual acts that are perceived
to be `unnatural'. The law, which has its origin in colonial ideas of
morality, in effect presumes that a hijra or a homosexual person is
engaging in `carnal intercourse against the order of nature", thus making
this entire lot of marginalized communities vulnerable to police
harassment and arrest. The Immoral Traffic Prevention Act (ITPA) of 1956
(amended in 1986), whose stated objective is to criminalize
brothel-keeping, trafficking, pimping and soliciting, in reality targets
the visible figure of the sex worker and enables the police to arrest and
intimidate the transgender sex-worker population.
According to the two main diagnostic systems used in the Indian medical
establishment, transsexualism is defined as a `gender identity disorder'.
The doctors usually prescribe a sexual reassignment surgery (SRS), which
currently resorts to hormone therapy and surgical reconstruction and may
include electrolysis, speech therapy and counseling. Surgical construction
could include the removal of male sex organs and the construction of
female ones. Since government hospitals and qualified private
practitioners do not usually perform SRS, many hijras go to quacks, thus
placing themselves at serious risk. Neither the Indian Council for Medical
Research (ICMR) nor the Medical Council of India (MCI) has formulated any
guidelines to be followed in SRS. The attitude of the medical
establishment has only reinforced the low sense of self-worth that many
hijras have at various moments in their lives.
With every single thing going against the Eunuchs; a notable amount of
awareness has also been seen all over the world. Around the world,
countries are beginning to recognize the rights of transgender people. In
a landmark judgment (Christine Goodwin vs. the United Kingdom, 2002) the
European Court of Human Rights declared that the U.K. government's failure
to alter the birth certificates of transsexual people or to allow them to
marry in their new gender role was a breach of the European Convention on
It said that a test of biological factors could no longer be used to deny
recognition legally to the change of gender that a transsexual had
undergone. In New Zealand, in New Zealand Attorney General vs. the Family
Court at Otahuhu (1994), the court upheld the principle that for purposes
of marriage, transsexual people should be legally recognized in their
OF late the Indian hijra community has begun to mobilize themselves
through the formation of a collective. Sangama, an organization working
with hijras, kothis and sex workers in Bangalore, has played an important
role by helping them organize and fight for their rights. Its services
include organizing a drop-in centre for hijras and kothis, conducting a
series of public rallies and marches, using legal assistance in case of
police harassment, and establishing links with other social movements.
The organizations of the hijra community can be seen as constituting a
larger movement of sexual minority groups in India. They are challenging
the constitutional validity of Section 377 and are organizing a campaign
questioning the government's stand that the law should remain. The
discrimination and violence that hijras face show that it is high time
that both the government and the human rights movement in the country
begin to take this issue with the seriousness it deserves.
Legal Position of Eunuchs:
How often do we sit and question our gender or sexual identity? Is it
always the same as the biological sex that we are born in? Can it be
independent entity, irrespective of our biological sex?
Supreme Court of India granted legal recognition to transgender:
By a landmark ruling on April 15, 2014, the Supreme Court of India granted
legal recognition to transgender people. The apex court, in its
ground-breaking judgment delivered by a Division Bench of Justices K.S.
Radhakrishnan and A. K. Sikri in a Public Interest Litigation filed by
National Legal Services Society Authority.
Rationale of LGBT (Lesbian, Gay, Bisexual and Transgender):
Homosexuality is mostly a taboo subject in Indian civil society and for
the government. Section 377 of the Indian Penal Code 1860 makes sex with
persons of the same gender punishable by law. On 2 July 2009, in Naz
Foundation v. Govt. of NCT of Delhi
Discrimination and Dilemma of Transgender People:
Transgender people bear the brunt of social and economic marginalization
due to discrimination based on their gender identity or expression.
Advocates confront this reality working with transgender people.
Transgender Participation and Discrimination in the Sports field:
Sex testing was first introduced at the European Athletics Championships
in 1966 in response to some allegations that some female athletes were
actually male. In response to this, the IOC (Indian Olympic Committee)
became the first sporting organization to establish a medical commission.
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