HIJRAS in India have virtually no safe spaces, not even in their families, where they are protected from prejudice and abuse. The recently released 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 police. The discrimination based on their class and gender makes the hijra community one of the most disempowered groups in Indian society.
Eunuchs from Rajasthan at the All India Eunuch Convention in Rath, some 250 km from Lucknow, in June 2001. The convention was meant to thrash out issues ranging from careers in politics to disciplining the community's younger generation.
However, the human rights movement in India has begun to take notice of the concerns of the community only recently. Legal scholar Upendra Baxi, in the foreword to the PUCL(K) report, says: "The dominant discourse on human rights in India has yet to come to terms with the production/reproduction of absolute human rightlessness of transgender communities.... At stake is the human right to be different, the right to recognition of different pathways of sexuality, a right to immunity from the oppressive and repressive labelling of despised sexuality. Such a human right does not exist in India."
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 status. 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.
The legend in the Mahabharata is that Aravan, the son of Arjuna and Nagakanya, offers to be sacrificed to Goddess Kali to ensure the victory of the Pandavas in the Kurukshetra war. The only condition that he made was to spend the last night of his life in matrimony. Since no woman was willing to marry one who was doomed to be killed, Krishna assumes the form of a beautiful woman called Mohini and marries him. The hijras of Tamil Nadu consider Aravan their progenitor and call themselves aravanis.
The hijra community is divided into seven houses, each headed by a `nayak' who appoints gurus or spiritual leaders to train their wards or `chelas' in badhai and protect them. Hijras in South India do not have the same cultural role as their counterparts in North India and most of them take up sex work as a means of earning a living.
Kothi is a term used to describe male homosexuals who take on the female role; they are largely from a non-English-speaking lower middle-class background. Many kothis marry owing to family pressure but continue to have same sex relationships. There is a symbolic relationship between kothis and hijras, which has been strengthened because of the lack of other support systems for kothis in cities and smaller towns.
For many hijras and kothis, sex work is the only option because no one is willing to employ them because of their gender identity. Even as commercial sex workers, hijras are the most vulnerable group as they are placed right at the bottom of the hierarchy of sex workers. This results in their having little bargaining power and being unable to ensure that their customers practise safe sex. They are also at risk of violence both from customers and the police.
According to the PUCL(K) report, violence is a widespread and everyday reality for hijra and kothi sex workers in Bangalore. Owing to the intolerance they face from their families, hijras and kothis often use public spaces like parks and toilets to entertain sexual partners, lovers and sometimes even clients. The lack of protection or privacy afforded by their own accommodation, makes them vulnerable to violence, inflicted largely by the police.
The harassment and surveillance by the police sometimes extends into the privacy of their homes. The place with the most scope for abuse is the police station where the police, on a regular basis, violate all canons of civilised behaviour by physically, sexually and verbally abusing and humiliating hijras and kothis.
Prisons are also places where anyone who is seen as not being `masculine enough' is harassed and often physically and sexually abused. According to the PUCL(K) report, the deeply sexual nature of the violence indicates that the sexuality of the hijra becomes the target of prurient curiosity, which could in its extreme form manifest itself as brutal violence. Sexual abuse and violence, apart from being the most systematic tool for dehumanising an individual, can be understood as a punishment for not conforming to the gender roles laid down by society.
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 counselling. 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) have 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.
The media have also reinforced stereotypes about hijras. In December 2002, Chandini, a hijra from Bangalore, died of severe burns in her home. The hijra community alleged that her husband, who had a long-standing relationship with her, had murdered her for money, and demanded that an impartial probe be held. The police refused and stuck to their version that it was a case of suicide. The local newspapers, including Police News, portrayed the incident as an exciting romantic tryst between two strangers, in which the unsuspecting man discovered the true sexual identity of the wily hijra. Even a progressive and anti-establishment publication, in its story, described hijras as a race apart, freaks of the underworld, half-man half-woman, almost devilish in their customs and practices. This kind of gender stereotyping was seen in many local English newspapers as well.
The systematic violence that hijras face is reinforced by institutions such as the family, media and the medical establishment, and is given legitimacy by the legal system. The violence that the hijra community faces from the police can be traced to the 1897 amendment to the Criminal Tribes Act of 1871, which was subtitled "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". The law also decreed eunuchs as incapable of acting as a guardian, making a gift, drawing up a will or adopting a son.
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 criminalises "carnal intercourse against the order of nature with any man, woman or animal" even if it is voluntary. In effect, it criminalises 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 marginalised communities vulnerable to police harassment and arrest.
The Immoral Traffic Prevention Act (ITPA) of 1956 (amended in 1986), whose stated objective is to criminalise 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.
Winners of the Miss Koovakkam 2003 beauty pageant for eunuchs held at Villupuram, Tamil Nadu, in April. Hijras converge at Koovakkam every year.
The hijra community is deprived of several rights under civil law because Indian law recognises only two sexes. This means that hijras do not have the right to vote, marry and own a ration card, a passport or a driving licence, 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.
BUT around the world, countries are beginning to recognise 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 Human Rights. 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 recognised in their re-assigned sex.
In Victoria, Australia, the Equal Opportunity (Gender Identity and Sexual Orientation) Bill, debated and amended in the State Assembly in 2000, has laid down a comprehensive definition of gender identity by incorporating various social and cultural factors that shape a person's gender and sexual identity. The International Bill of Gender Rights, adopted in 1995, provides for the right to define and express freely one's gender identity, and is therefore a model for progressive legislative change.
OF late the Indian hijra community has begun to mobilise themselves through the formation of a collective. Sangama, an organisation working with hijras, kothis and sex workers in Bangalore, has played an important role by helping them organise and fight for their rights. Its services include organising 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. When the owners' association of the apartment complex where the Sangama office was located objected to hijras visiting the premises, the organisation sent letters to, among others, the Chief Minister and the National Human Rights Commission (NHRC). The Chief Minister responded saying that he would ensure that the matter was investigated. A letter from the NHRC to the police station concerned resulted in the police assuring Sangama that the rights of all residents of the building, including the employees and visitors to Sangama, would be protected.
In December 2002, hijras, kothis and other sexual minorities in Bangalore formed a collective called Vividha. Its charter of demands includes the repeal of Section 377 and the ITPA. It has also demanded that hijras be recognised as women, be given equal opportunities, with entitlement to housing, employment benefits and rail travel concession.
In 2002, the hijra community in Bangalore organised `Hijra Habba', a festival of sports and cultural events, which was covered extensively and positively by the media. In 2003, the festival was staged again in Bangalore's Town Hall and over 100 hijras participated in the meet. Kajol, a hijra who addressed the packed hall on the occasion, said: "I was initially told not to speak in front of the media because it would affect my family. But I decided that it was important for me to speak and assert my identity." She added that "hijras were part of a wider community of sexual minorities" and singled out society's treatment of lesbians for whom there exist very few spaces.
The organisations 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 organising 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.
(Letters to the Editor should carry the full postal address)
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