CHAPTER-1

INTRODUCTION

1.1 BACKGROUND TO THE STUDY

Family is the smallest unit of a society and every society has its certain ethics
and norms. Every member of the society gradually and voluntarily follows those
ethics and norms; and in return the society accords them protection and recognition.
However, this is not the scenario with delinquents. On petty matters, the society starts
rebuking and disowning them, but when some grave crime is committed, it becomes
tough to him/her; and strictly deals the matter as per the law of the land with the help
of State.

The above mentioned practice is good because the person was at his/her fault
and that calls some punishment which aims to re-establish the peace of the society as
well as to teach a lesson to the offender, but what should be the behavior of the
society with a person who is not at his/her fault but is a creation of God with both
sexes i.e. a transgender? Surely, from all corners of the world answer would be that
the society must be polite, humble, open-minded, protective and supportive. However,
the reality is totally different and for getting familiar with that this, the research
proposal was drafted, the research has been conducted and now they are reproduced in
this thesis.

As every person is unique, transgenders too. They are not aliens, but the God’s
creation. God did not create Adam and Eve only; it also created a third part to make
this world more colorful. Moreover, the beauty of law does not lie in being masculine
or feminine but being humanitarian, where the laws are inclined on neither side. 1
Historically one may witness the presence of transgender people in almost every part
of this world spanning across different culture, race, and class.2

1
Mandeep Verma, Saleena, et.al., “Problems of God’s own Creation” 3(7) Cri.LJ 219 (Jun., 2012).
2
Transgender people and their problems, available at: http://socialjustice.nic.in/pdf/introduction.pdf
(last visited on June 15, 2018).

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 1.2 EVOLUTION OF ‘TRANSGENDER’ – HISTORICAL
PERSPECTIVES

A transsexual is an individual who experiences “a persistent sense of

discomfort and inappropriateness about one’s anatomical sex and a persistent wish to
be rid of one’s genitals and to live as a member of the opposite sex” (American
Psychiatric Association: Diagnostic Statistical Manua1 1987, 75).

Transsexual discourse has been mainly situated within the

medical/psychological field, resulting in it being viewed as “something that is
wrong”, with an emphasis on diagnosis, classification and treatment. This discourse
adheres to sex and gender having binary values which dictates that there are only two
true sexes and genders, both of which are seen as supportive of stable and fixed
identities. Thomas Lacqueur (1990), a historian, explores how this dimorphism is an
invention of modernism as he charts how bodies and sex have changed over the
centuries. He argues that until the late eighteenth century, medical theory and
scientific thought suggested there was only one sex in which male and female bodies
were not thought of in terms of difference. A woman’s body was an “incomplete”
version of the man’s body, and “complete” and “incomplete” described the difference
between the two genders.

Messerschmidt (2007) explains how this inequality was imposed on bodies

from the outside, not from the inside, and to be a man or a woman was to have a
specific place in society as determined and designed by God. As different sex roles
developed for males and females, awareness of biological differences grew which is
how “natural” inequalities were constructed.

Messerschmidt (2007, 4) cites Lacqueur (1990, 10-11) when he points out

that the two-sex model developed only “until such differences became politically
important” and “sex” therefore became “explicable only within the context of battles
over gender and power”. In other words, Messerschmidt (2007) seems to suggest that
Lacqueur was making the point that a two-sex model was not the result of scientific
advances, but rather a product of a re-evaluation of the body according to a particular
social and cultural context.

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 The eighteenth century laid the groundwork for the naturalization of gender
categories, specifically, that there were two opposing sexes and that gendered
behavior was a matter of biology. Medical science established a binary system of
gender by emphasizing the physical differences between men and women.

Herdt (1994) notes how, by the nineteenth century, normative sex and gender
distinctions were well in place and it is within this context that the multidisciplinary
field of sexology developed. These dualistic definitions influenced sexological writing
which was making a distinction between nature and nurture, and biology and culture.
The contemporary paradigm of sexed and gendered differences was firmly established
as a western ideology by the late nineteenth century (Herdt 1994a).

In the late nineteenth century, sexology was developing as a sub-discipline of

psychology and medicine, and homosexuality became the main topic of study. There
was no distinction between gender and sexual identities, and homosexuality was
conflated with gender-variant behavior (Lev 2004).

In the late nineteenth century, early transsexual research was closely

connected with homosexuality. Krafft-Ebbing (1840-1902), Havelock Ellis (1859-
1939), and Hirschfeld (1868-1935) were physicians who investigated different areas
of sexual deviation during the late nineteenth and early twentieth centuries. Katz
(1995) considers Krafft-Ebbing’s major work, Psychopathia Sexualis, first published
in 1886, as a founding text of heterosexuality in which the superiority of different-sex
eroticism was established. The new category of “hetero-sexual” appeared in
Psychopathia Sexual is illustrating Krafft-Ebbing’s belief that any deviation from
procreative heterosexual intercourse was a form of emotional or physical disease.

Katz’s (1995) study of the evolution of the term “heterosexual” traces it back
to this time when the term “sexual instinct” was concerned with reproduction and
“pathological sexual instinct” was used to describe non-procreative desire. Katz
(1995) notes that, the term “heterosexuality” made its first appearance in 1901 in
Dorland’s Medical Dictionary where it is defined as “abnormal and perverted appetite
towards the opposite sex”. In 1923, “heterosexuality” entered Merriam Webster’s
New International Dictionary defined as “morbid passion for one of the opposite sex”.
Heterosexuality was not equated here with normal sex but with perversion and this
definition lasted until the 1930s: it was linked with “abnormal sexual appetite” and

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called “psychical hermaphroditism” and assumed that feelings have a biological sex.
This led to the development of the idea of an innate sexual orientation which has
contributed to proclaiming heterosexuality as a natural and fixed state.

Katz (1995, 29) explores non-procreative pathology and distinguishes

between “congenital sexual perversion” which is caused by an inborn biological
anomaly and “acquired sexual perversity” which is a voluntary act. In Ellis’ (1927)
Sexual Inversion, the second of six volumes of Studies in the Psychology of Sex, he
continues to develop the theory that heterosexuality and homosexuality are inborn and
biologically determined and, in doing so, challenges the hegemonic idea of sexual
deviance as criminal.

Krafft-Ebbing’s (1886) and Ellis’ (1927) work illustrate western sexologists’

attempts to de-criminalize and medicalise sexual behaviors, this was a move away
from the church’s view that sexual perversion was an issue of morality and instead it
was reframed as “a disease” for which people were not responsible. Sex became a
category that connoted the biological aspects of sexual identity, specifically the
genitals.

Prior to the 1950s, the categories of “homosexuality”, “transvestism” and

“transsexualism” were all grouped together as sexual deviations. From the outset there
was disagreement among sexologists as to the classification of these categories.
Hirschfeld (1910) argued against Krafft-Ebbing’s (1886) idea that all transvestites
are homosexuals, seeing transvestism as an independent phenomenon. He opened the
world’s first institute of sexology in 1919 and was one of the earliest advocates of gay
rights. Hirschfeld’s (1910) text The Transvestites, argues for homosexuality and
transvestism to be thought of as a spectrum of “sexual intermediaries” ranging
between purely manly or womanly characteristics. The term “antipathic sexuality”
was used to describe anyone who went against the “natural” characteristics that were
allocated to the two sexes. Hirschfeld believed that homosexuals were true
“antipathics”, whereas the transvestite’s sexual impulse remained “normal”, implying
heterosexual.

Instead of using the term transvestite, Ellis (1927) preferred the descriptive
word “eonism”, named after Chevalier d’Eon who in the eighteenth century adopted
feminine dress and was seen as a woman privately and publicly. The term “eonism” is

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useful in that it locates the tension between the two main types of cross-sex behaviour
which was split into two categories, “transvestism” (cross-dressing for one’s
pleasure), and “transsexualism” (cross-dressing as an expression of a profound
identification with the other sex). Clearly there was a need for classification and
definition in order to distinguish between the two concepts. This also illustrates the
way that the sexologists were thinking about them: namely as distinct and static
categories with no movement across the boundaries.

All modern expressions of sex and gender identity depend on the current 2-sex
system for their expression (Hird 2000, 359). It has to be noted that the early
sexologists’ classification of sex and gender diversity is embedded within a cultural
matrix that both reflects the social context of sex and gender and the sexologists’
personal belief systems. Indeed, Lev (2004) warns against comparing sex and gender
variant behavior from one period to another as language and meanings vary and
change cross culturally and historically. In researching the literature, this creates
contradictions and confusions around conceptualizations and use of terminology that
resist any attempt to delineate boundaries. However, in mapping the early sexologists’
research into sex and gender diversity, a significant boundary that can be defined is
the shift of paradigms from physiology to psychology and back to physiology.

In the earlier part of the nineteenth century, deviant sexual and gender
behavior had been seen as a lapse of morality caused by a biological defect. By the
1890s, psychiatry was gaining ground and used the idea of the “sexual instinct” and
its natural function of reproduction to classify perversions; all perversions were
mapped against this “natural function” and seen as psychic diseases of the sexual
instinct which were involuntary symptoms of a deeper personality structure (Waters
2006). By the early twentieth century, sexologists sought to classify gender deviance
as a psychological perversion demarcating the normal from the abnormal.

In 1946, sexologist David Cauldwell became involved with the publication

Sexology: Sex Science, and became well known for his numerous articles providing
sex education for laymen. Cauldwell (1949a) was credited with introducing the term
“transsexual” into the sexological literature in the article entitled Psychopathia
transexualis in 1949. Ekins & King (2001) note that Bullough & Bullough (1993,
257) cite Hirschfield in 1910 as coining the category “transsexualism” when he

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introduced the term “seelischer Transsexualismus” (psychic transsexualism, though
no such reference is locatable).

Cauldwell (1949b, 275) used the term “psychopathic transsexual” stating that
such a person is mentally unhealthy because they want to live as the opposite sex,
which contrasted with transvestism which he was inclined to see as a “quirk”. This
was basically another version of the nineteenth century pathological view of aberrant
sexualities. Cauldwell (1949c, 6) went on to argue that transsexualists are always
transvestites as a change of sex is impossible: he stated that “to attempt to medically
treat transvestism would be as foolish as to try to treat some star to make it behave
differently in its relation to the solar system”. It was not until 1952, after the hormonal
and surgical treatment of George/Christine Jorgenson, that transsexualism and
transvestism were more clearly differentiated, and transsexualism was recognised as a
medical syndrome.

Before the twentieth century, there was no notion of the influence of hormones
on the body’s biochemistry. Rubin’s (2003) exploration of the nature and history of
transgender identities illustrates the crucial role that endocrinology had in organizing
understanding of bodies, sexualities and gender in the early twentieth century. Rubin
describes how in the 1920s and 1930s, early genetic theory posited the gene as the
determining factor of sex, but biochemical endocrinology defined sex hormones as
refining the process of becoming a “sexed” body. The dualistic model of sexed bodies
(where bodies were either male or female) believed that androgen was exclusively
found in men and oestrogen was exclusively found in women.

Rubin (2003) reports that in 1931, two of the key findings in endocrinology
were the discovery of “male” hormones (androgen) in normal “females” and, in 1934,
the discovery of “female” hormones (oestrogen) in normal males (Oudshoorn 1994,
25-26). These findings were instrumental in creating the possibility of later sex
change treatments for transsexuals involving the use of hormones to change their
bodies. Rubin’s (2003) historical account of the use of endocrinology in
transsexualism also touches on the treatment of homosexuals with hormones. This is a
more controversial area as the homosexual trajectory consists of a history of
compulsory treatment to get rid of homosexual behavior, whereas for transsexuals the
hormone treatment was needed as part of the sex reassignment surgery (changing sex)

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in the 1950s. It is interesting to note that in the 1940s, even though sexual and gender
“deviance” was seen as a result of hormone deficiency, endocrinologists discovered
that hormones did not cure deviants’ desires — in this case male homosexuals. In
other words, “testosterone could affect the power but not the direction of the sex
drive” (Rubin, 2003, 47).

As much as cross-gender and cross-dressing have been historical features of

human experience, changing one’s biological sex has only been possible in the last
fifty years. Harry Benjamin, M.D. (1885-1986) popularized the term “transsexual”,
disagreeing with Caldwell’s assertion that transsexuals were mentally unhealthy.

Benjamin’s 1954 article, Transsexualism and Transvestism as Psycho-Somatic

Syndromes attempted to create a systematic way of thinking about the various
interrelationships between sexed body, gender identity, and sexual desire that can be
observed in transgender phenomena. Benjamin (1954) was one of the first doctors to
argue that disturbed gender identities could not be cured by psychoanalysis, pointing
out that psychotherapy is ineffective if it seeks to cure transsexualism:

If it is evident that the psyche cannot be brought into sufficient harmony with
the soma, then and only then is it essential to consider the reverse procedure, that is,
to attempt fitting the soma into the realm of the psyche (Benjamin cited by
Meyorwitz 2004, 113).

Benjamin (1954) placed transsexualism firmly back into the medical model,
affirming that sex reassignment was the only treatment, with the demand for surgery
being a central symptom. This expressed a shift from psychology to physiology and it
was around this notion that the transsexual subject was, and is, consolidated.
Benjamin (1954, 220) continued the work in differentiating between transvestism and
transsexualism by stating that “the transsexualist always seeks medical aid while the
transvestite as a rule merely asks to be left alone. To put it differently: in transvestism
the sex organs are sources of pleasure: in transsexualism they are sources of disgust”.
Benjamin developed his thinking from his 1954 paper in his subsequent 1966 book,
The Transsexual Phenomena, which attributes transsexuality to hormonal imbalances
or genetic difficulties.

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 Benjamin (1966) developed a medical model of gender variance represented
on a transvestism/transsexualism continuum which helped to diagnose those
transsexuals who were acceptable for hormonal and surgical treatment. Standards of
Care (SOC) were created by the Harry Benjamin International Gender Dysphoria
Association (HBIGDA) in 1979 as a way of setting ethical boundaries in assessing
who qualified for hormonal and surgical treatment. There has been much controversy
regarding hormonal and surgical treatments and who decides the eligibility for
treatment, but Benjamin’s contribution at least initiated developing some standards of
care where previously there had been no clinical guidelines.

Virginia Prince (1912-2009) played a key role in the development of the

transgender community in the 1950s and in shaping contemporary debates about the
category of “transgender”. Among her major accomplishments was the establishment
of an organizational structure whereby people in the transgender community could
contact each other, and she published the first transvestite magazine in 1960. Prince
(1978/2005b) made important distinctions between transvestites, transsexuals and
homosexuals, mainly arguing that the “discovery” of transsexualism further
complicated her belief that it was possible for a man to live as a woman without
having to remove his male organs. She pointed out that sex is anatomical and gender
is psycho-social. Transvestism, for Prince, notably referring to male transvestites, is
the expression of suppressed femininity.

Prince (1967/2005a, 24) argued that the one thing that transsexuals and
transvestites do have in common is the desire to “remove the incongruity between
their exterior appearance and their inner feeling, but one does so on the physical-
anatomical level and the other on the psycho-social level”. Despite the differences
between the “transsexual” and “transvestite” categories, transgender has come to be
known as an all inclusive term for identities that disrupt and subvert the normative
linkages assumed to exist between sex, gender, and desire.

John Money (1921-2006) was a psychologist and sexologist known for his
research into sexuality and gender. Money developed the sex/gender distinction in his
research on intersex people, suggesting that hormonal, chromosomal and gonadal sex
or genitals did not determine gender orientation which could be learned (Hausman
1995). In 1952 in his research with intersex people, Money adopted the term “gender”

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as a term distinguishing between masculinity and femininity. By using the term
“gender” he could differentiate between the physical and biological aspects of an
individual and their socialized behavior. Money developed this idea further by
introducing the term “gender identity”, meaning an individual’s basic identity as a
man or woman, including the level of conformity to society’s definition of masculine
and feminine. The individual’s “gender role” was symbolized in dress and behavior
and this was expected to be “gender congruent” with “gender identity”. Money was a
firm believer in gender dimorphism and the duality of masculinity and femininity and
this reflected society’s prevailing belief in sexual essentialism. Ironically, his
sex/gender distinction became a way to think about and develop what was to become
transsexual and transgender theory.

In 1966 a gender programme was established at the John Hopkins University

that helped transsexuals to go through “sex reassignment”. This transsexual model
provided a medical framework and treatment that enabled transsexuals to live as the
opposite sex. In the 1960s and 70s, the John Hopkins University’s programme
continued to provoke professional opposition from psychoanalysts who argued that
surgeons were colluding with the patients’ psychotic demands, labeled all
transsexuals as “ border-line psychotics” (Merloo 1967, 263) and surgery as non-
therapeutic. As sociologists Kessler and McKenna (1978, 120) noted at that time:

“genitals have turned out to be easier to change than gender identity, what we
have witnessed in the last 10 years is the triumph of the surgeons over
psychotherapists in the race to restore gender to an unambiguous reality.”

As the idea gained ground that sex change surgery seemed to be more
effective than psychotherapy, the medical perspective became the cultural lens
through which gender was viewed. This supported the argument that transsexualism is
a “given” disorder and in 1969, American psychiatrist Richard Green published
Transsexualism and Sex Reassignment, the first interdisciplinary professional text.

Transsexualism became the contested ground of different therapies from

surgery to psychoanalysis where the focus on psychological factors became more
accepted. Robert Stoller (1925-1991), a psychoanalytic psychologist, built on the
work of Money and developed a theory about transsexualism in the 1960s.

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 Stoller (1968, 46) suggested that we all have a core gender identity, which is
one’s overall sense of identity, that stays the same and is either male or female. This
core gender identity is produced by three components: the infant-parent relationship,
the child’s perception of its external genitalia and by a biological force. This develops
the idea that core gender identity is central to the stability of personhood. Stoller
(1968) realized that sex and gender were mismatched in transsexuals, and this led him
to develop Money’s theory of “gender identity”. Stoller (1968) distinguished between
the psychological and biological dimensions of sex. He described “gender identity” as
referring to someone’s psychological experience, with “sex” describing the biological
traits of maleness and femaleness.

Stoller (1968) proposed that transsexualism was the product of unconscious

rearing of the child in the opposite sex. He asserted the importance of being ascribed a
definite sex assignment at birth, particularly in the case of ambiguous-appearing
gentilia, in the belief that this would avoid future emotional problems. His aim was to
delineate what was normal and abnormal, diagnosing transsexualism as a
psychological disorder and identity issue produced by post-natal psychodynamic
factors. Stoller introduced the term “gender identity” into psychoanalytic literature in
1968 and his development of the sex/gender distinction was later taken up by feminist
theory and queer theory, albeit in contrasting ways.

It’s not so much that there have always been transgendered people; it’s that
there have always been cultures which imposed regimes of gender (Wilchins 1997,
67). Most western European sex and gender discourses have relied on psychology and
sexology to create some understanding of gender and sexual deviance from the norm.
This has resulted in pathologising discourses in which people are marginalized and
seen as perverse. Main challenges to the medical/psychological discourse have come
from sociologists (Kessler & McKenna, 2000), feminist theorists and activists
(Greer 1999), cultural/gender theorists (Halberstam, 2005) and more recently from
transgender theorists (Whittle, 2006b).

In the last 50 years, one strand of political action has been aimed at trying to
achieve social acceptance for post-operative transsexuals. These efforts have focused
on the judicial system and medical profession: the transsexual experience has been an
illegal one since the law in western society forbids an unclear sex (Lenning 2004,

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36). While the Gender Recognition Act in 2004 changed the legal definition of what
constitutes male and female, the notion that there are legally only two sexes remains
unchanged (Sandland 2005; Cowan 2005). However, the transgender political
agenda also has another line of argument and action by asserting that it is the binary
gender system that is wrong, rather than transsexualism or transgenderism.

Transgender is a concept of the 1990s and is an inclusive term for people who
have broken away from society’s expectation that sex and gender are essential, binary
congruent categories. Whereas one model of transsexualism viewed transsexuals as
“trapped in the wrong body”, the model of transgenderism views gender as a
continuum and calls for gender trajectories to suit the individual (Denny 1998,
2004a). Transgenderists do not necessarily see themselves as transsexuals or
transvestites or indeed have any claim to any clear cut identities. The category of
“transgender” is itself multiple and contested and incorporates a principle of diversity
rather than uniformity, moving from dichotomy to continuity where it is not so easy to
categorize people into male-female dualities. The term “transgender” moves away
from a physically based definition (sex of the body) and encompasses a more social
definition whereby a transgendered identification may refer to people living as social
men or social women who may, or may not, seek sex reassignment surgery
(Cromwell 1999). They live their lives in a gender that opposes, according to
dominant discourse, their biological sex.

The division of human beings into two mutually exclusive gender categories
has been receiving increasing attention from transgender authors (Stryker 2006). As
the transgender political and social activist movement has developed, the diversity
and variance of gender identities has become more visible. The category of
“transgender” is expanding to include a wider variety of behavior that can be grouped
together and, in the process; it undermines the established notion of gender categories.
Gender is undergoing a “category crisis”, old ways of categorizing do not work
because transpersons cross boundaries from one category to another (Mackenzie
1999). It is worth noting however, that using the category of “transgender” as an
umbrella for a variety of identities is problematic and its many meanings currently
remain in dispute. I adopt a simple definition used by Gilbert (2000, 2) as it refers to
a mind/body dissonance of some kind without being specific:

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 “Transgendered” applied to an individual signifies some degree of discomfort,
all or some of the time with one’s birth-assigned gender designation.

“Transgender” is not so much an externally assigned category as it is a self-

defined one that moves away from medical definitions and describes a range of
deviations from gender norms. This situation means that there is a need to challenge
the linguistic barriers and develop language and terminology that describe this new
self-definition in ways that do not rely on existing categories.

Though the transgender model initially appeared to be potentially liberating,

Denny (2004a) outlines some disadvantages. First, if transsexuals and transgendered
people are not mentally ill, there is no psychiatric justification for hormone or surgical
treatment, and also legal protection is threatened if transsexualism is not seen as a
“perceived disability” (Denny 2004a, 32). Second, transsexuals by definition (the
desire to change sex) want to belong to one gender and are not interested in any
ambiguous genders. At the same time, Denny (2004a) notes, the transgender model
has opened up middle ground that is so much more inclusive for gender-variant
people’s lived experiences that do not fit into the traditional transsexual model, in
which transsexuals were required to manipulate these experiences in order to be taken
seriously. The main discourse of the heteronormative binary model of sex and gender
has resulted in the regulation of generations of transgendered people’s sexed and
gendered identities. Of course, it is impossible to know whether these same people
would have made different decisions if they had been born in a different socio-
historical context. What current research does show however is that the contemporary
transgender model has allowed a wider range of lived experiences to be taken
seriously, and that this has opened the door to the development of a variety of
transgender theoretical discourses. The importance of the category of “transgender” is
that it enables individuals and groups to develop a political and social discourse that
reflects the significance of one’s identity and one’s place within a wider community.

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 1.3 THE KEY CONCEPTS AND DEFINITIONS

The heterosexual matrix (1990) designates the way in which subject positions
are rendered socially coherent in terms of the matrices of sex, gender and sexuality:
‘that grid of cultural intelligibility through which bodies, genders and desires are
naturalized’ (Butler, 1990:208 fn6) 3 . The cultural matrix through which gender
identity has become intelligible requires that certain kinds of “identities” cannot
“exist” – that is, those in which gender does not follow from sex and those in which
the practices of desire do not “follow” from either sex or gender (Butler, 1990:23).

An international panel of experts meeting in Yogyakarta in 2006 adopted 29

principles that applied international human rights law to the protection of sexual
orientation and gender. The Yogyakarta Principles define sexual orientation as
follows:

“The ability of each person to create emotional,

emotional and sexual attraction, as well as intimate and
sexual relationships with people of different sex, gender
or gender” (Yogyakarta, 2007:6 fn1)4.

The Yogyakarta defines gender identity as:

“The internal and individual experience of each person,

deeply felt, about the gender, which may or may not
correspond to the sex assigned to the birth, including the
personal sense of the body (which may involve, if freely
chosen, the modification appearance or function of the
body, by doctors, by surgical means or other) and other
expressions of gender, including clothing, speech and
manners” (Yogyakarta, 2007:6 fn2).

3
Butler, Judith (1990/1999) Gender Trouble: Feminism and the Subversion of Identity. New York:
Routledge.
4
Yogyakarta Principles (2007) Yogyakarta Principles on the Application of International Human.
Rights Law in Relation to Sexual Orientation and Gender Identity. Chairpersons: Sonia Onufer Corrêa
& Vitit Muntarbhorn. Available at www.yogyakartaprinciples.org visited on December 10th 2018.

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 The introduction of ‘sexual orientation’ and ‘gender identity’ into human
rights discourse can be considered: ‘a reconfiguration Judith Butler’s heterosexual
matrix’ (Waites, 2009:148)5. Matthew Waites contests the emergence of this new
discursive framework in that it privileges binary gender models in which identities
and desires are: ‘defined exclusively in relation to a single gender within this binary’
(2009:138) as a category separation: ‘a product of a Western sexuality/gender
distinction’ (2009:139), and ‘of biomedical and psychological understandings’
(2009:152). Waites nevertheless suggests that the broad definitions offered by
Yogyakarta open up possibilities for future contestation and transcendence of
meanings (2009:152). He emphasizes ‘the need to switch from unproblematized,
undefined uses of “sexual orientation” and “gender identity”, recommending instead:
‘careful, explicit definitions of the concepts that are compatible with the diversity of
sexual and gender subjectivities’ (2009:153).

Sex, gender and sexuality are ‘stabilizing concepts’ which allow individuals to
claim particular identities, ‘called into question by the cultural emergence of those
“incoherent” or “discontinuous” gendered beings who appear to be persons but who
fail to conform to the gendered norms of cultural intelligibility by which persons are
defined’ (Butler, 1990:23)6. Extrapolating from Butler for the purpose of the current
study, a working definition of gender variance was formulated as: the subjective
experience of gender as ontologically incongruent with that of sex assigned at birth;
the social expression of gender as categorically incoherent with binary gender
attributions, and culturally unintelligible to prevailing normative gender assumptions.

1.3.1 Sex
Sex is most easily understood as whether a person is male or female. It refers
to biological status as male or female and includes physical attributes such as sex
chromosomes, gonads, sex hormones, internal reproductive structures, and external
genitalia.

5
Waites, Matthew (2009) ‘Critique of “sexual orientation” and “gender identity” in human rights
discourse: global queer politics beyond the Yogyakarta Principles’. Contemporary Politics. 15:1. 137-
156.
6
Butler, Judith (1990/1999) Gender Trouble: Feminism and the Subversion of Identity. New York:
Routledge.

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 1.3.2 Gender
Gender is composed of a social understanding of gender expression, and
gender identity. Gender is a term that is often used to refer to ways that people act,
interact, or feel about themselves, which are associated with boys/men and
girls/women. While the aspects of biological sex are the same across different
cultures, however, the aspects of gender may not be.7

Gender identity can be defined as an individual’s internal subjective

experience of ‘being’ a particular gender as for example: man, woman, or neither, or
third gender, and not necessarily corresponding with birth sex assignment. Gender
expression is the external presentation or ‘doing’ of masculine, feminine, or
androgynous gendered characteristics, behaviors, presentations, practices; which
forms the basis of gender attribution upon which socially recognized
masculine/feminine binary gender roles are allocated. There are multiple forms and
possibilities and configurations for gender identity and expression in relation to sex
and sexual orientation. Initial sex assignment at birth as female or male or intersex, is
based on collective physical characteristics such as body structure and function.
Primary sex characteristics are the organs of the reproductive system - genitals,
gonads, chromosomes and hormones. Secondary sex characteristics are features not
directly part of the reproductive system that appear during puberty in humans such as
breasts and beards. These characteristics can be sexually dimorphic, but present
differently in every individual so are not always unambiguously male or female.

Gender is a delineating social category, fundamental to the defining of

personal and social identity. Gender judgments are pervasive and seemingly
instinctive, and usually the initial classification individuals make about others. Gender
attribution is based on gender performance and physical characteristics, although
these may not necessarily accurately reflect the internally experienced gender
identification of an individual. In Western societies, traditional normative conceptions
of both gender identity and gender roles are limited to a binary system: female or
male, feminine or masculine. Gender is a concept that divides humanity into two
categories operating as a set of hierarchically arranged gender roles and meanings, in

7
Butler, Judith (1990/1999) Gender Trouble: Feminism and the Subversion of Identity. New York:
Routledge.

15 | P a g e
which the masculine is dominant and positively-evaluated and the feminine
subordinate and negatively-assessed.

1.3.3 Distinction between Difference between Sex and Gender

The Yogyakarta defines gender identity as:

“An inner experience that an individual felt that may or may not correspond to
gender assigned at birth, this may include personal sense of body and other
expressions as related to gender such as clothing, mannerisms, and speech.”8

1.3.4 Gender Identity

Intrinsic meaning of what it is for a person to be man, woman transsexual or
transgender, is one of the fundamental aspects of life is referred to as gender identity..

1.3.5 Sexual Orientation

Sexual orientation is the characterization of how an individual is attracted
towards other human beings physically, romantically and/ or emotionally.
Homosexuality, bisexuality, heterosexuality, asexuality etc. are various forms of
sexual orientation. These characteristics orientation may or may not change after
gender transmission.9

1.3.6 Distinction between Gender Identity & Sexual

Orientation
Gender identity is the internal concept of self as a man, a woman, a
combination of both or one of them. This is how people perceive themselves and how
they are called. Gender identity may be the same or different for an individual as
compared to one assigned at birth. For transgender people their own sense of gender
identity and one that was attributed at birth do not coincide. As mentioned previously,
sexual orientation is description of attraction either physical or emotional between
two human beings. This may be expressed as homosexuality, heterosexuality,

8
Transgender FAQ, available at http://www.hrc.org/resources/transgender-faq visited on December 12th
2018.
9
National Legal Services Authority v. Union of India, (2014) 5 SCC 438.

16 | P a g e
bisexuality etc. Therefore a transgender person can have any of the above sexual
orientation.10

1.3.7 Gender Expression

The term gender expression is external and socially perceived. It refers to all
of the external characteristics and behaviors that are socially defined as either
masculine or feminine, such as dress, mannerisms, speech patterns and social
interactions.

1.3.8 Distinction between Gender identity & Gender

Expression
Gender identity is the innate and deeply felt psychological identification as a
man, woman or other gender. Whereas, Gender expression is the external
manifestation of individual’s gender identity. These may or may not conform with the
socially defined characteristics and behaviors typically associated with the genders.11

1.3.9 Transvestite
In 1910, the German sexologist Magnus Hirschfeld coined the term
transvestite; in 1965, psychiatrist John F. Oliven of Columbia University used the
lexical compound trans+gender in the transexualism section of ‘Primary
Transvestism’; and in December 1969, Virginia Prince, a transgender-identified
author, expressly used the term ‘transgenderal’ to distinguish herself from
‘transsexuals’ or those who physically alter their bodies through hormones and
surgery. Transgenderist were individuals leading a life as cross-gender without any
sex reassignment surgery. Transgender and trans people were umbrella terms for
transgender individuals in the mid 1970s. TG was the abbreviation used for
transgenderist in educational material by 1976.

1.3.10 Gender Dysphoria

If a person is born as a female, but not happy with being a girl, or born male
and feel unhappy being a boy; this is known as gender dysphoria. Most people are

10
Reporting About Transgender People? Available at http://www.hrc.org/resources/reporting-about-
transgender-people-read-this visited on November 22 2018.
11
Transgender FAQ available at http://www.hrc.org/resources/transgender-faq visited on December 12th
2018.

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happy with their gender. For example, a baby born male will be happy to be known as
a boy as he grows up.

1.3.11 Third Gender

Third gender refers to a person who does not have self-identify with their
biological sex. This includes cisgender and transgender individuals, intersex people
with a personal identity that is not exclusively female or male, agender individuals
without a gender, gender-fluid individuals whose gender identity changes, pangender
people who have traits from all genders and more.12

1.3.12 FTM and MTF

A person who was designated as woman at birth but identifies and expresses
as a man is referred to FTM, Female to Man or Trans Man. A person designated as
man at birth but identifies and expresses as a woman is referred to as MTF, Man to
Woman or Tans Woman.13

1.3.13 Genderqueer
When an individual does not identifies to the “generic” identities of man and
woman and in many circumstances considers them both man and woman or “other”.
They may be referred to as Gender Queer.

1.3.14 Transgender Transition

Once a person decides to live by the gender they identify with, the process
through which that gender is achieved is called transition. It starts with living in
congruency with the gender they identify as. The transition process comprises of
multiple steps such as hormone replacement therapy and gender reassignment
surgery. These procedures are extremely costly and not all can undergo this
procedures due to medical reasons. Although transition takes places in a public
domain, it is a very personal process that demands the individual’s right to privacy.14

12
Lola Mendez, May 19, 2017, Here’s what the world could learn from India’s third gender acceptance
https://matadornetwork.com/bnt/drove-psychedelic-tuk-tuk-across-india-heres-learned/ visited on 31st
July 2018.
13
Transgender FAQ, available at http://www.hrc.org/resources/transgender-faq visited on December
12th 2018.
14
Reporting About Transgender People? Available at http://www.hrc.org/resources/reporting-about-
transgender-people-read-this visited on November 22nd 2018.

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 1.3.15 Pride symbol
The Transgender Pride banner was designed by Monica Helms. It was first
shown at a Pride Parade in Phoenix, Arizona, USA, in 2000and is the symbol of
Transgender Pride.

Figure 1.1: Pride Symbol of Transgender: It consists of five horizontal stripes,

two light blue, two pink, with a white stripe in the center.

1.3.16 Human Rights of Transgender

Human rights treaties have stated that states have an obligation to protect
everyone from discrimination based on sexual orientation or gender identity. Six of
the eight main human rights treaty bodies regularly refer to sexual orientation and
gender identity. 15 General Assembly declares "being lesbian, gay, bisexual or
transgender does not limit your right to enjoy the full range of human rights’.16 Sexual
Directives and gender identity are often not explicitly mentioned as grounds for
discrimination in international human rights treaties, with the exception, to a certain
extent, of EU treaties, but are covered by their clauses of open discrimination. States
are required to protect, respect and respect certain international human rights
standards applicable to LGBT persons. Over the last forty years, many global,
regional, binding, non-binding, general and specific rights have been defined and
clarified, obligations that States must fulfil. Some of these human rights were not / are
not always covered (ideally) for LGBT people. Right to work, security of person, seek
asylum, private life, and freedom of opinion and expression are the most commonly
under pressure or violated for transgender folks.

15
These six are the Committee on Civil and Political Rights, the Committee on Economic, Social and
Cultural Rights, the Committee on the Elimination of Discrimination Against Women, the Committee
on the Elimination of Racial Discrimination, the Committee on the Rights of the Child, and the
Committee Against Torture; International commission of Jurists, 2010.
16
General Assembly, A/HRC/19/41: 2011.

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 1.3.17 Gender Confirmation Surgery

Gender confirmation surgery, also known as "genital reconstruction surgery"

or "gender affirmation surgery," is a surgical procedure that involves modifying the
body or genitals of a transgender person to align them with their gender identity. . For
transgender women, surgery usually involves vaginoplasty to build a vagina. For
transgender men, this may involve phalloplasty or penis construction. The growth of
the testosterone clitoris means that some transgender men also undergo
metoidioplasty, an operation in which the clitoris is further lowered to serve as a
penis.

1.3.18 Transgender
In 1979, Christine Jorgensen publicly rejected transsexuals and identified
herself in the newspaper as a transgender saying: "Sex has nothing to do with
bedfellows; it's about identity. By 1984, the concept of " transgender community "
solidified to be inclusive of individuals who did not conform to the gender they were
born with but the once they identified most with Richard Elkins created the Trans-
Gender Archive in 1985 at the University of Ulster to increase awareness. In 1992,
the International Conference on Transgender Rights and Employment Policy defined
the transgender person as a general term that includes transsexuals, transgender
people, transvestites and anyone in transition. Therefore, the terms "cisgender" and
"transgender" became very popular in the 90s. The term cisgender comes from the
term cissexual, used for the first time by the German sexologist Volkmar Sigusch in
1995 in the title of his article, Transsexual Desire and Cissexual Defense, as well as
by him in 1998 in his essay, The Neo-Sexual Revolution. However, the terms
cissexual and cisgender were used explicitly in 2006 in an article in the Journal of
Lesbian Studies and in 2007 by Julia Serano in her book Whipping Girl. In Latin, the
term cisgender means "on this side of". In short, the word cisgender is used to refer to
people who are certain of their gender identity from birth, whether it is a man or a
woman, and who, in an integral way, represents the existence of a binary gender
identity.

The term transgender is the antonym of the term cisgender. In Latin, the term
transgender means "on the other side of". Transgender means on the other side of
gender. The grammatical meaning of "transgender" goes beyond the genre. Therefore,

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the term transgender may also include persons who do not identify with the sex
assigned at birth, as well as persons who intend to undergo a sexual conversion
operation (hereinafter referred to as SRS). SRS is a surgery to align the sex to the one
that the individual identifies as to become that gender.

The first published use of the term transgender has often been attributed to
Prince (1976)17. In a series of re-published articles she had originally written for the
magazine Tmisvestia, she described herself as “transgenderal” (p. 145). She used this
term to differentiate herself from transsexual. Since she only changed her gender, not
her sex, she was transgenderal (Prince, 1976; 1978)18. Transgenderal has since been
changed to transgender or transgendered and has gained significant credibility within
the transgender community both as a personal and a social identity. As a personal
identity, it is used by people who “feel a need to express a gender identity different
from the one society associates with their genitals” (Rothblatt, 1995, p. 17)19.
Transgendered people “perceive and orient themselves as persons of the
gender other than their biological or chromosomal gender” (Nelson, 1994, p. 523) or
acknowledge that their gender at birth is different from the gender of their identity
(Rucker, 1995). People who have a transgender identity tend to adopt a gender role
(in manner, dress, and interpersonal relations) different from their biological and
chromosomal sex normative role. Sometimes, a person who is transgendered may
identify as transgender. Transgenderists live as the “other” gender, either part or full-
time, often passing as the other sex or creating innovative gender presentations by
blending elements of both masculinity and femininity into their appearance
(American Educational Gender Information Service, 1996; Tri-Ess, 1996). They
may rely on cosmetic and hormonal interventions to help them achieve their desired
gender presentation, but typically they do not wish sex re-assignment surgery, which
distinguishes them from pre-operative transsexuals (Hausman, 1995).

As a social identity, transgender has become an umbrella concept to describe

the entire collective or community of those who change their gender either
temporarily or permanently. In this way, transgendered means “neither just male nor
just female” (Rothblatt, 1995, p. 162). The most inclusive definition of the

17
Prince (1976), Understanding Cross Dressing. Los Angeles: Chevalier.
18
Ibid.
19
Rothblatt Martine, 1995. The Apartheid Of Sex: A Manifesto In The Freedom Of Gender. New
York. Crown Publishers.

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transgender community includes anyone who shows significant amounts of behavior
ordinarily reserved for the other sex, their partners, or anyone with a concern for
gender oppression (Nangeroni. 1996) 20 . This approach subsumes a wide range of
previously distinct identities under the banner transgender. The majority would be
male-to-female and female-to-male pre, post, and non-operative transsexuals,
transgenderists, and cross-dressers (Rothblatt, 1995). It also includes intersexes and
hermaphrodites. Even more broadly, it encompasses those people who present a
significant amount of nontraditional gender behavior.

The transgender community is diverse and complex, with numerous genders

and multiple social identities each of whom define themselves in diverse ways. As
diverse as they are, they are bound together by the need to express their selves outside
traditional gender and sex roles (Rubin, 1996). As an umbrella terni, arising out of
the community itself, transgender replaces a whole “alphabet soup” of gender
identities and variations (mostly medical and psychiatric diagnoses) with an
overarching, transcendental identity. Most significantly, transgender replaces old
distinctions between transsexuals and transvestites. This term serves as the most
inclusive term to unite a diverse group of people together for liberation (Feinberg,
1996).

This term collectivized the idea of individuals in all stages of transition to

attain the gender they identify the most with which may be man, woman or other.
Grouping of this varied sexual orientation under one umbrella is suggested by some
experts. However, there is a need to perform research in different segments as the
scope of research is varied and has different aspects.

Twentieth Century has provided an avenue for rights and recognition of

human rights and the Universal Declaration of Human Rights, 1948. According to the
United Nations, "human rights" are rights inherent to all human beings. These do not
discriminate based on nationality, sex, nationality or ethnic origin, religion, language,
or other. These rights are interdependent, interdependent and indivisible.21 The right
of choice provides a fundamental principal for an individual and in an inseparable part

20
Nangeroni Nancy. 1996 Invisible Lives: The Erasure of Transsexual and Transgendered People.
Transsexual News Telegraph 7 (Summer 1997), 26-27, 46.
21
What are human rights?, available at:
http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx (last visited on August 8, 2018).

22 | P a g e
of the human rights. To reach full potential of each individual realization of human
rights is a cornerstone achievement. People can be empowered through the use of
human rights. Therefore, human rights serve as the guide wire for moral and pre-legal
rights. These cannot be granted by people nor can they be taken away by them.
Aristotle, a Greek philosopher, opined that justice is simply evaluating equal
things equally and unequal things unequally to ensure justice are served. Immanuel
Kant, a German philosopher, based justice on the golden rule to treat everyone
equally.22 When the Supreme Court of India (hereinafter referred to as SC) combined
John Rawls’s, an American moral and political philosopher, described fairness in
justice to be distributive to which Noble Laureate Prof. Amartya Sen has also
subscribed, they formed the legal basis for providing basis for justice to vulnerable
groups and the transgender community is one such group. Furthermore, Fundamental
Rights are the rights provided by the Constitution of India under Part III (Articles 12-
35) to its entire citizen which includes transgenders too. Thus theoretically, the whole
of the study will revolve around the concepts of Human Rights and Fundamental
Rights of the transgender community of India and empirically their availability to the
transgender community of the National Capital Territory of Delhi (hereinafter referred
to as N.C.T.).

World widely, the transgenders are recognized by several words, like, Hijra,
Kinnar, Chakka, Tritiya Prakriti, Nisarga, Ardhnarishwar, Napunsaka, Aravanis,
Thirunangi, Kothi, Jogtas/Jogappas, Shiv-Shakthis, Cross-dresses, Transvertites, Drag
kings, Drag queens, Queers, Transsexuals, Eunuchs, Bisexual, Hermaphrodites,
Homosexuals, Androgynies, Third gender, Shemale, Pansexual, Spansexual, Intersex,
Female to Male (FtM) transgender man, Male to Female (MtF) transgender woman,
Sistergirl, Brotherboy, Gender variant, Gender different, Gender non-conforming,
Pangender, Polygender, Genderqueer, Agender, Gender dysphoria, Berdaches,
Passing women, Two-Spirited, etc.

Early sexologists in the nineteenth century, such as Ulrichs, Westphal, and

Krafft-Ebing, initiated the shidy of homosexuality and gender “abnormalities.”
Ulrichs was the first to propose that people who had same-sex desire were different
from others (Bullough & Bullough, 1993). He coined the term urnings to describe

22
Ibid.

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homosexuals and considered urnings a third sex. Krafft-Ebing (1 887/1906), in his
Psychopdhia Sexualis, catalogued quite an array of sexual “perversionsm-any sexual
behaviour not directly leading to reproduction-and felt that they were probably the
result of hereditary degeneracies. During this early period, these sexologists debated,
changed, and expanded upon categories of sexual “pathologies”, part of this
expansion, centered on differentiating gender from sexual orientation.

A follower of Ulrichs, Magnus Hirschfeld believed that many people were not
entirely man or woman (Bullough & Bullough, 1993). These intermediaries, as he
called hem, included hermaphrodites, people who had mixed secondas, sexual
characteristics, homosexuals, and transvestites. Moreover, he believed not al1 female
impersonators were homosexual.

Indeed, Hirschfeld's (1910/1991) study of transvestites was the first to

acknowledge a distinction between gender expression and sexual orientation. In this
study, Hirschfeld, himself a homosexual reformer and cross-dresser (Brame, Brame,
& Jacobs, 1996), labeled transvestites as people who crossed gender but were not
homosexual. Later Ellis (1906/1936), another pioneer sexologist, joined in the effort
to set apart gender and sexual orientation (King, 1996).

Despite Hirschfeld's and Ellas's contributions, transvestitism and gender non-

conformity have continued to symbolize homosexuality. A manly woman is often
seen as lesbian and an effeminate man is considered gay. This confusion may have all
started with views like that espoused by Ulrichs, in which male homosexuality is the
consequence of being “a woman trapped in a man's body” (Bullough & Bullough,
1993). Moreover, many early 20th century sexologists conflated “third sex” (e.g.,
homosexuals) with “third gender” (e.g., transvestites), seeing them as essentially the
same (Herdt, 1994). This conflation between gender and sexual orientation has
continued in modem gender research. Indeed, the premise behind Green's (1974)
studies of “sissy boy syndrome” is that feminine boys are at risk for non-traditional
gender-roles and sexuality.

Green found that femininity in young boys is a “risk factor” for homosexuality or
bisexuality, but not trans-sexuality (as he originally suspected), so he began studying
the “sissy boy syndrome” as a precursor for homosexuality in men (Green, 1987).

24 | P a g e
The association between gender nonconformity and homosexuality has continued to
dominate psychological investigations of gender (Bailey & Zucker, 1995).

Beginning in the late 1970s and early 1980s, there has been a movement to undo
the link between gender non-conformity and sexual orientation. For instance, G.
Rubin (1984) hoped to develop a radical theory of politics of sexuality that
denounces erotic and sexual oppression. However, she found that several core beliefs
about sexuality such as the belief that sexual orientation is an essential biologically
determined aspect of one's identity, stood in the way. Consistent with sex historians
such as Weeks (1977, 1981) and Foucault (1976/1978), who argued sexual desire is
not tied to biology; G. Rubin (1984) argued that sex and gender are two different
things and that sexuality is not necessarily linked to either sex or gender. Her
argument was supported by Money (1988) who also supported a break in the absolute
connection between gender identity, role, and sexual orientation. Although Money
(1988) admitted “sexuoerotic” activity is typically a part of gender coding, since part
of society's expectations for both masculine and feminine gender roles is heterosexual
orientation, he allowed that sexual orientation and gender may be cross-coded for
both homosexual and heterosexual people. For example, heterosexual masculine men
may be attracted to masculine women, homosexual masculine men may be attracted
to other masculine men, and so on (Money, 1985, 1988).

An important discussion in the discussion of MSM and transgender issues in

India is commonalities and differences of LGBTs. However, MSM and Transgender
are two extremely different groups with specific issues for each group when it comes
to discussing the human rights issues of either group. According to UNDP (2010) and
NACO (2011), transgender people and men who have sex with men (MSM) are two
different problems and need to be treated separately. Although they had consultation
meetings with members of the transgender community in India of UNDP and NACO,
the transgender community does not wish to be clubbed with the LGBT segment. This
is further cemented by the fact that transgender people usually do not identify as
having homosexual orientation (like MSM). Transgender have more hetero normative
approach towards their issues as compared to the LGBT population.

Transgender bodies transgress the norms of both sexes, and it is this policy that
drives transgender people into discussion. The fluidity of gender identity is not well

25 | P a g e
understood in the Indian social construct. There is a huge need of education and
awareness among the society to understand the issues faced by the transgender
community in India.

The Western transgender term is a general term used to group together several
types of people who do live their life as a gender that they identify with (Bettcher
2009). Transgender is as much a transgression of gender from man to woman (FtM)
as from woman to man (FtM).

Although the term transgender is a general term for people who do not fall within
solid boundaries of gender identity, it has recently been used to include hijras in India.
The hijra population is an important segment of the transgender community (MtF) in
India. The identity of the hijra is often confused with other transgender identities of
MtF. There is a shortage of literature on transgender people poses a challenge to
understand the social and economic challenges faced by this community at large.. The
categories / identities of transgender people of MtF and FtM are not covered and
sufficiently discussed in the available literature.

1.3.19 Hijra
An important discussion is whether the convergence of research and discussion
on LGBT and transgender communities pose a valid combination.1. MSM is a sexual
orientation behavior with same-sex persons, and the problems of transgender people
are very broad in terms of gender identity and the rights of transgender people.
According to UNDP (2010) and NACO (2011), the two segments of the society are
too separate groups with less commonality as previously thought and the research
showed that individuals belonging to the two groups did not want to be classified as
one. Transgender people are generally heteronormative in sexual orientation as
compared to MSM. Much of the discussion about transgender people in India focuses
on gender transition (TF) and its association with femininity and women's identity. In
addition, MtF's transgender sexuality is viewed from a hetero-normative angle.

Transgender people transgress norms of both sexes and it is this policy that drives
transgender people to the discussion. The Western transgender term is a general term
used to group several types of people who do not fit the gender they were born with
but wish to lead a life in gender they identify as (Bettcher 2009).

26 | P a g e
 Although the term transgender is a general term for people who transgress sex, it
has recently been used to refer to hijras in India. The identity of the hijra is often
confused with other transgender identities of MtF. Shortage on research on the hijra
population and other sexual minorities poses challenge to understand the complexity
of the issues faced by these communities particularly in reference to the transgender
population. The categories / identities of transgender people of MtF and FtM are not
covered and are sufficiently discussed in the available literature.

1.4 HIJRAS AND TRANSGENDERS: SIMILARITIES &

DIFFERENCES
The following section provides a brief description of the religious and cultural
context of the hijras, the hijra jamaat subculture, the hijra situation under Mughal and
colonial rule.

1.4.1 Religious and cultural context

The hijra population in India is an invisible population that has been part of
Indian society for a long time. The hijras are related to the religious and cultural
context and are considered demigods. In Ramayana and Mahabharat hijras are
referred to as Third sexes (Nanda 1996, Krishna and Gupta 2002) and other
scriptures also refer to third sexes.. 23 Among the characters mentioned in the
Mahabharata epic are Arjuna in Brihannala (master eunuch), Shikhandi (born again as
a man) who confronted Bhishma during the war of Kurukshetra and Lord Krishna as a
woman who marries the son of Arjuna Lord Aravan.

Bahuchara Mata is worshipped by hijras (Barbara 1994, Nanda 1996, Lal 1999,
Bakshi 2004, Hill and McBride 2007). The temple is located in Bahucharaji,
Mehsana district, Gujarat, India and shows the deep integration of these individuals
into the mainstream society from earlier time. Mohini is the feminine form of Lord
Krishna and Ardhanarishvara is the feminine form of Lord Shiva (Nanda 1996, Lal
1999).

23
According to hijra folklore, in the epic Ramayana when Lord Rama leaves for exile with Sita and
Lakshmana, he is followed by people and at the banks of the river, at the edge of the forest he turns and
appeals to his followers to wipe their tears and says ‘men and women please go back and perform your
duties’. He turns and never looks back. While returning back after fourteen years he finds a group of
people still waiting for him. Upon questioning he realizes that the words ‘men and women’ were not
meant for the group and hence they stayed back. This was the hijra group that waited for Lord Rama
for fourteen years. Lord Rama blessed hijras for their devotion as they waited for his return for fourteen
years (Lal 1999; Krishna and Gupta 2002).

27 | P a g e
 Lord Shiva is represented in the image of Ardhanarishvara, or "the Lord who is
half woman." Lord Shiva and Parvati together in a body are called Ardhanarishvara
(Krishna and Gupta 2002; Kalra et al. 2010).24 In various paintings and sculptures
Lord Shiva’s half body is female and half is male.

1.4.2 Hijra jamaat

Hijra jamaat is the community of Hijras and is a hierarchical system of well-
structured hierarchical power, which exists mainly in the western and northern states
of India (and also in some eastern states). The community is well organized based on
a hierarchal pattern as described by Kalra (2011).

Figure 1.2: The hierarchical system in a Hijra Gharana (Kalra 2011: 3)

According to Nanda (2000) and Reddy (2006), these gharanas carry their
own names and multiple such communities may exist in close proximity. Head of
each such family is called Naik or Nayak and has several understudies called
chelas (Figure 1) (Nanda 1996, 2000, Mukherjee 2004, Reddy 2006, Kalra
2011). The decisions are made by the El Nayak. The tree is a broad based
pyramid as once goes down the pyramid more individuals have those positions.

Hijra jamaat can be evaluated as a typical local / traditional village panchayat

system observed in Indian villages. Thorner (1954), Mathew (2003) and Sharda

24
In one of the myths of the Hindu religion, Lord Shiva breaks off his phallus and tosses it and the
phallus breaks in pieces and extends fertility over the entire earth. Though Lord Shiva loses the power
to procreate, his phallus becomes a symbol of ‘universal fertility’ and therefore one can trace the cult of
lingam (phallus) worship. This is seen as an exact description with hijras who themselves are impotent
but bless others for fertility (Lal 1999).

28 | P a g e
(2010) noted that the hijra communities are structured similar to panchayat systems
where people of the local village come to the chosen elder for advice and guidance.
The panchayat head is responsible for the welfare of the individuals. The hijra
communities mirror the gram panchayats in that there is societal divide based on socio
economic background as well. There is fine for wrong doings and support for right
actions.

The guru is the direct mentor of the chelas in the community. All profits made
are given to the guru (Nanda 1996, Mukherjee 2004). The guru is responsible to
providing for the chelas in terms of basic support systems inclusive of shelter,
clothing and food. Due to their feminine identity, the hijras follow a matrilineal
relationship (Nanda 1996, Lal 1999, Toumey 2008, Kalra 2011).

1.4.3 The Mughal rule and the colonial period

In the pre-colonial stage, the hijras have acquired a state of dignity. During the
Mughal government, they occupied favorable posts such as reliable servants and
harem guards. The hijras were appreciated for their honesty and service to their
employees. Hijras were employed as confidants and advisors, national supervisors and
subordinate servants by the sixth nizam of Hyderabad. The state even provided police
protection to this segment of the population in ways of hijra inspectors to ensure
safety and avoid harassment (Krishna and Gupta, 2002). Hijras claimed public
income through cash and land grants and in some places had a formal "right to start"
and codified in India (Lal 1999).

However, many laws were then introduced against the Hijras that were against
their human rights. According to the law 1329 F of the eunuchs of Andhra Pradesh
(region of Telangana), there is a statutory law, the term eunuch refers to people who
admitted being impotent or who remained defenseless after a medical inspection. This
law made impotence an inclusion criterion for being a eunuch. Government
maintained a registry of hijra names and contact information for its residents.
Restrictions were also imposed on hijras conducting their job of entertainment and
congratulating. There was also a restriction on self-emasculation and emasculation
practiced in other people. The law inhibited the day to day activities of hijras and
created a negative environment for them (Kannabiran 2009, 2013).

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 Thus, the situation of the hijras began to deteriorate when the British colonial
leaders proposed their binomial ideologies of sex/gender and their perspectives of
hetero-normative sexuality. The body of the hijra was problematic due to its
ambiguity and its difference with the body that is being procreated/disabled
heterosexual (Kannabiran 2009). Little by little, as the Mughal rule ended the rights
of the hijras were curbed.

Under colonial rule the Law if Criminal tribes designated hijras as a criminal
tribe and further sealed the fates of this community by inhibiting rights and ensuring
strict control of economic activities.(Reddy 2006, UNDP 2010) The lands owned by
the hijra community was forcefully ceded as the Mughal reign were coming to an
end.25

Section 377 of the Indian Penal Code introduced in 1860 further sealed the
fate of the larger sexual minority communities. This article prohibits sexual
intercourse between persons of the same sex and is often referred to as the "law
against sodomy". In 2009, the Delhi High Court decriminalized homosexual acts
between adults of the same sex among adults (Guide for Women Activists in
Yogyakarta, 2010). The support towards these communities was shown as by the
India people as these laws were never used against hijras/transgender community in
India. The reported cases have been reported in Bangalore, where hijras have been
reserved under Section 377 (Popular Union for Civil Liberties, Karnataka [PUCL-
K] 2003).

Since British colonial rule, the hijra community has remained clandestine and
has led an isolated life. They lived mainly on the outskirts of the villages and
remained for a long time as a closed group.

1.4.4 Difference between Transgender and Hijra

The key difference could be that transgender is the state in which a person’s
gender identity does not match with his/her physical sex. Hijra is a South Asian term
used for males who have physiological feminine gender identity. Therefore
Transgender people may identify as heterosexual, homosexual, bisexual, pansexual,
polysexual, or asexual. It does not apply to any particular form of sexual orientation.

25
These lands were given by the previous rulers as inam lands or granted by royal decree.

30 | P a g e
 Mishra (2015) defines, transgender as:

“Of, relating to, or designating a person whose identity does not conform
unambiguously to conventional notions of male or female gender roles, but combines
or moves between these.”

“People who were assigned a sex, usually at birth and based on their genitals,
but who feel that this is a false or incomplete description of themselves.”

“Non-identification with, or non-presentation as, the sex (and assumed gender)

one was assigned at birth.”

While Hijras are the males who have feminine gender identity, according to
the South Asian culture, they adopt feminine gender roles and appear in women's
clothing. The hijra gender includes intersex people as well. As the Hijra is not
classified under males or females, the Hijra community is lobbying for recognition for
themselves as a 'third sex or gender'. Nirwaan is a religious act that is carried out by
many Hijras at the initial stage. It consists of removal of the male reproductive organs.

Table 1.1: Differences between transgender and hijra

Transgender Hijra
Definition A state where a person identifies A male who has
oneself by gender orientation physiological feminine
and not as a member of a gender identity and wears
community. women's clothing.
Includes  People who do not identify Males; they do not have any
exclusively with either particular sex orientation. In
gender. fact, they challenge the
 Cross-dressers. sexual orientations and
 Pre-operative, post-operative consider themselves a new
and non-operative gender; ‘third gender’.
transsexuals who generally
feel they were born into the
wrong physical body.
 Others who feel they do not
fit our society’s usual
expectations of gender
behavior or appearance.
 Intersex persons.
Applies to Any sexual orientation; Mostly males, but some may
heterosexual, homosexual, be intersexual.
bisexual, pansexual, polysexual,

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 or asexual; and both the genders.
Discrimination As gender is so outwardly They face discrimination in
visible; transgender people who the society; however, they
are transitioning may be are respected for some
vulnerable to discrimination, and religious beliefs and
will have a strong need for the ceremonies
support of family and friends.
Sexual There is no particular sexual or As declared by them, Hijra is
gender orientation, so they can a new gender and surpasses
Relations
have sexual relationships with any sex orientation. They
any person of their desire. have sexual relations
Generally, sexual relationships amongst themselves and also
are carried out with the original with males. Many work as
gender of the person. Example, a sex workers for survival.
transgender male gets
transformed into a female by the
way of surgery. Now, the person
being a female will have sexual
relations with a male.
Family Like the rest of the population, It is not physically possible
there is a range of sexual for a Hijra to conceive or
orientations within the give birth. They have been in
transgender community; and existence from generations
conceiving depends on the by adopting young boys who
sexual orientation of a couple are rejected by, or have fled
that can be natural or medical. from their family.
Legalization Transformation of transgender There are no laws made for
people is legalized in many legalization of the Hijra
countries but still there are a community. However, there
number of countries that don’t are constant efforts made by
allow transformation of genders. many Hijra activists for
official recognition for
themselves as a third gender.

1.5 LEGAL HISTORY OF TRANSGENDER’S IDENTITY

The previous section elaborates on, firstly, the circumstances of transgender
Community, secondly, provided recommendations for the betterment of the neglected
transgender Community and thirdly, pointed out the various challenges for the social
work organizations and the government. This section aims to present, through the use
of the concept of community work and methods and procedures under the theoretical
perspectives.26

26
S. A. M. Husain, Tritio Prokriti: India erHijraderArthoshamajikChitro Hidden Gender: A Book on
socio-economic status of Hijra community of India 164-68 (Dhaka: Sararitu, 2005).

32 | P a g e
 The restricted binaries of male and female and the separate gender specific
social roles attributed to these two have been imbedded in our thinking. Even in
today’s liberal world, the over usage of the proverbial hero running away from a
pretty woman he was courting only to find out she was a man earlier, draws more
laughter than most other jokes. As a naturally occurring and accepted phenomenon,
trans-sexuality has gained very little takers mainly because of the limited knowledge
or intentional arrogance of our society, this is the main reason why is it so easy for us
to distance ourselves and ridicule it. India consists of one of the most visible
transgender cultures in the world, the ‘Eunuch’ (Hijra) Community. Eunuchs, mainly
due to a lack of empowerment have been forced into accepting, arguably the lowest
place in India’s social heap, which contributes to them becoming not just a sexual but
also a highly deprived social minority.

Broadening our outlook, Transgender and Transgender Communities exist in

all parts of the map with their own, customs, rituals and unfortunately similar position
in local social hierarchies. In Philippines, they are known as baklas, American Indian
tribes refer to them as berdaches, In Africa, serrers; and in South Asia they are known
as hijras, jogappas, jogtas, shiv-shaktis and aravanis. The unrecognized third gender
status given to the transgender community in India is considered to have special
powers in their 4000 years of recorded history. In many countries, especially in West
Asia, members of the ‘transgender culture' held sanctioned positions in royal courts.
Origins of the transgender can be traced to the Ramayana and the Mahabharata. Lord
Ram, after being banished for 14 years asks all the ‘men and women’ to go back to
the city. The Hijras amongst stayed with him and did not heed to his requests. This
deviation impressed lord Ram and they were bestowed with the duty of blessing
families on auspicious occasions such as marriage and child birth. This led to the
custom of ‘badhai’ in which transgender are invited to dance and sing and confer
blessings. But today Lord Ram’s blessings are needed by them more than anyone
even to exist as part of society in a position of dignity and identity.37

Transgender in India are subject to prejudice and abuse. This is well

documented on The PUCL (K) Report on Human Rights Violations against the
Transgender Community in Bangalore. Prejudice very quickly escalates into violence,
often of a brutal nature, in public spaces, police stations, prisons and even in their
homes. The fact that society has not come to terms that Transsexuals do not conform

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to the accepted gender classifications remains the main factor behind the violence.27
Also, in India, most Transsexuals lower middle-class background contributes to
making them an easy target of harassment by the police. The discrimination based on
their class and gender has made the transsexual community one of the most
disempowered groups in Indian society. The Transsexuals face many sorts of state
and societal harassments such as that in public places, hat home, police stations and
rape.

The struggle of the transsexual communities against this type of contemporary

violence goes back to the historical form of the law in colonial India. The Criminal
Tribes Act of 1871 posed a huge challenge to the rights of minority population as this
act deviated from the principles of penal code, the accused if proven to be guilty of
the accusations against him beyond any reasonable doubt in court of law. But
criminality was perceived to be inherited by birth in certain tribes and communities in
India, passed down from one generation to the next.

At the time India’s hierarchical social order consisted of some communities

that were perceived as unclean and polluted from birth and this act was in line with
the prevailing social conditions. ‘An act for the Registration of Criminal Tribes and
Eunuchs’ was an addendum to the Act in 1897 which further specified criminalization
of eunuchs.

Local government maintained a registry of eunuchs and marginalized

populations and increased suspicion was put on these populations. Such registered
eunuch could be arrested without warrant and punished with fines and
imprisonments.28

Transsexuals are heavily discriminated against even in Civil law. As Indian

law only recognizes two sexes, the Transsexual community is left in obscurity under
civil law. Basic civil rights of a citizen of India such the right to vote, marry and own
a ration card, a passport or a driving license are denied to transgender. Transgender,
who have contested and won elections to local and State bodies, are now facing legal

27
Robert Wintemute, ‘From ‘Sex Rights’ to ‘Love Rights’: Partnership Rights as Human Rights’ in
Nicholas Bamforth (ed), Sex Rights: The Oxford Amnesty Lectures 2002, Oxford University Press
(2005) , pp.255-69.
28
R. B. Towle and L.M. Morgan, Romancing the Transgender Native: Rethinking the Use of the "Third
Gender" Concept 111-124 (Transgender Studies Reader. Routledge: New York, London, 2006).

34 | P a g e
challenges. In February 2003, the Madhya Pradesh High Court ruled that the
contested seat, which was reserved for women, and won by Kamala Jaan, a
transgender was not legal and her election was stuck down. The Election Commission
(E.C.) in September 1994 ruled that transgender can be registered in the electoral
roles either as male or female depending on their statement at the time of enrolment
after a transgender candidate wrote to the Chief Election Commissioner enquiring
about which category transgender were classified under.29

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
“unnatural intercourse 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 soliciting and pimping, in
reality affects the sex workers 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, trans-sexualism is defined as a ‘gender identity disorder’. The doctors
usually prescribe a Sexual Reassignment Surgery (SRS), which currently resorts to
hormone replacement therapy and surgical reassignment surgeries may include
electrolysis, speech therapy and counselling.30 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
transgender 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

29
Dr. V. Chakrapani, “Hijras/Transgender Women in India: HIV, Human Rights and Social Inclusion
United Nations Development Programme (UNDP)” 96-99 (2010).
30
Leena Abraham and K.A. Kumar, “Sexual experiences and their correlates among college students in
Mumbai City, India,” International Family Planning Perspectives 25(3) 139–146 (1999).

35 | P a g e
establishment has only reinforced the low sense of self-worth that many transgender
have at various moments in their lives.31

With every single thing going against the transgender; 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. A breach of Human rights
was noted by the European Convention in Human Rights by the UK when it did not
allow transgender individuals to change their gender on birth certificates. It said that a
test of biological factors could no longer be used to deny recognition legally to the
change of gender that a transgender had undergone.

In New Zealand, in the case of New Zealand vs the Attorney General and
the Family Court of Otahuhu (1994)32 confirmed transgender individuals should be
able to recognize as the reassigned gender. Of late the Indian transgender community
has begun to mobilize themselves through the formation of a collective. Sangama, an
organization working with transgender, 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 transgender 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 transgender 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
transgender 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. Moreover, in order to analyze the perspectives of this community regarding
their needs, gender concepts have been used to understand their social context and
where they belong. These concepts do not reflect a single theoretical approach but
combine different perspectives.

31
“Sexual Minorities – Homosexuals” Australian Government Refugee Review Tribunal 144-148
(2010).
32
CA 181/94.

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 Gender Identity clearly alludes to how an individual feels internally. An
individual's sex is normally doled out during childbirth; however a generally little
gathering most of the self-learning and identification is done by the individual as they
grow up. Occasionally, problems in the genital system may arise in specific
individuals, their intrinsic impression of themselves is not gender specific during
childbirth and may include transsexuals before and after the experience or not having
access to the operation incorporates people who cannot experience a successful
operation.33

Nations around the world, including India, treat the issue of sexuality to
people who recognize that they are of the opposite sex. Few people experience a
different surgical methodology to change their physical and bodily appearance to
achieve gender-specific sexual qualities that reflect their gender impression, thus
creating legitimate and social complexities, since their sex during childbirth differs
from the expected sexual personality.

The sexually oriented personality refers to the individual's body sensation

which may include a substantial alteration of appearance or abilities by medical,
surgical or other means, as well as different sex joints, including dress, speech and
characteristics. Sex character, subsequently, alludes to a singular's recognizing toward
oneself proof as a man, lady, transgender or other distinguished class.

Sexual introduction alludes to a singular's persisting physical, sentimental

and/or passionate fascination in someone else. Sexual introduction incorporates
transgender and sex variation individuals with substantial sexual introduction and
their sexual introduction might change amid or after sex transmission, which likewise
incorporates homosexuals, bisexuals, heterosexuals, abiogenetic and so forth. Sexual
introduction alludes to a singular's persevering physical, sentimental and/or
enthusiastic appreciation for someone else.

Sexual orientation personality and sexual introduction, as officially

demonstrated, are diverse ideas. The sexual introduction and character of each
individual are necessary for their identity and determines how the person identifies
and to what flexibility. Forcing individuals to undergo SRS or hormone therapy

33
Ajayi Ayorinde and Wesley Clark, Annabel Erulkar, Karin Hyde Schooling and the Experience of
Adolescents in Kenya 201-205 (The Population Council, Nairobi, 1997).

37 | P a g e
without full understanding could be an inhibitory step as well as a need to legally
distinguish its gender identity. 34

1.6 TRANSGENDER RELATED IDENTITIES,

CULTURES AND EXPERIENCE IN INDIA
Hijras: Hijras are naturally born men who reject their "masculine" personality
at the right time to recognize themselves as a lady, a "no man" or "in the middle of a
man and a woman", or "neither man nor woman". The hijras can be considered as
transgender / transsexual people (from men to women), however, Hijras have a strong
social structure and have designated pathways to enter the local communities (which
becomes specific to each Hijra group). There are local iterations of the defining term
used to referring to Hijras for example, Kinnars (Delhi) and Aravanis (Tamil Nadu).

Eunuch: the eunuch refers to a man weakened and intersexed to an individual

whose private parts are equivocally identical to those of a man during childbirth.
However, the tyke that had been given to the male sex would be reclassified as
intersexual as a hijra.

“Aravanis and Thirunangi” - The Hijras of Tamil Nadu are known as"
Aravani. "The Tamil Nadu Aravanigal Social Welfare Council, an express
government under the Department of Social Welfare, characterizes the Aravanis as
organic types that are recognized as a woman captured in the body of a man.

Kothi - The Kothis are a mixed bunch of individuals and can be described as
as organic types that show changing degrees of "femininity" that can be situational.
Some kothis drive blind and are tied to a lady.

Jogtas / Jogappas: the jogtas or jogappas are ardent followers of Yellama or

Renuka Devi. These serve as sanctuaries for the transgender community. "Jogta"
refers to the male servant of this goddess and "Jogti" refers to a servant (also
frequently called "Devadasi"). Many of them have their place in the transgender
community.

Shiv-Shakthis: Shiv-Shakthis is considered a type controlled by or especially

close to a goddess who has a statement of female sexual orientation. Periodically,

34
Joan Roughgarden, Evolution's Rainbow: Diversity, Gender, and Sexuality in Nature and People 36-
39 (University of California Press, 2004).

38 | P a g e
Shiv-Shakthis wears and uses decorations and decorations that are wholesale /
socially involved for women.

1.6.1 HIV PREVALENCE

The transgenders confronted Discrimination everywhere and proclaimed,
particularly in the field of human services, business, training, leave aside social
prohibition. United Nations Development (UNDP – India) took interest in this areas
and conducted and delivered a report in December 2010 on Hijras/transgenders in
India35

“HIV Human Rights and Social Exclusion”

The report states that: "The human immunodeficiency virus, HIV and sexually
transmitted infections (STIs) are increasingly present in the Hijra / transgender
population." The estimated size of the population of (MSM) and males who are sex
workers in India (which probably includes the Hijras/TG communities) are 2,352,133
and 235,213 respectively, and it was said that there were no reliable estimates
available for women on HIV prevalence Hijras/TG In the MSM population it was
7.4% compared to an adult HIV prevalence in general of 0.36% It has recently been
reported that people with hijras/TG were included in the category of MSM in
serological surveillance of HIV, and recent studies also reported that women with
Hijras/TG had a very high prevalence of HIV (17.5% to 41%).

The studies conducted by NACO also highlight a pathetic situation. The

reports presented by the NACI and the Working Group NACP IV, reported that the
Hijras and other transgender groups are extremely vulnerable to HIV. Both reports
highlight the urgent need to take measures to improve their sexual and mental health
and address the problem of social exclusion.36

35
Arvind Narrain, “The Articulation of Rights around Sexuality and Health: Subaltern Queer Cultures
in India in the Era of Hindutva” Health and Human Rights, 7 2 41-44 (2004).
36
Amar Singh, H.S.S., Wong WoanYiing and H.J.H. Noor KhatijahNurani. “Prevalence of Childhood
Sexual Abuse among Indian Paramedical Students” Child Abuse Neglect 20(6) 487–492 (1996).

39 | P a g e
 1.7 THE NON-GOVERNMENTAL ORGANIZATIONS
(NGO) & GOVERNMENTAL ORGANIZATIONS (GO)
WORKING FOR WELFARE OF TRANSGENDER IN
INDIA
Many of NGO & GO offer professional counseling, family counseling,
helpline services, emergency shelters, reproductive health advice, medical aid, and
safe spaces for conversations, networking, sports, and legal support to LGBT
community people. To name a few, they are as follows:

1.7.1 NON-GOVERNMENTAL ORGANIZATIONS (NGO)

Udaan trust, Maharashtra; Bharosa trust, Lucknow (U.P.); Sangama,
Bengaluru, Karnataka; Sappho, Kolkata, West Bengal; Maan Foundation, Lucknow
(U.P.); Sahodari Foundation, Tamil Nadu; SAATHI, Chennai, Tamil Nadu; The
Umang, Mumbai; Samapathik Trust, Pune; Maharashtra; Samabhavana Society,
Mumbai, Maharashtra, Sarathi Trust, Nagpur, Maharashtra; East West Center for
Counseling and Training, Chennai, Tamil Nadu; Orinam, Chennai, Tamil Nadu;
Srishti, Madurai & Chennai, Tamil Nadu; Swabhava Trust, Bengaluru, Karnataka;
Maya4Women/(M4W), Bengaluru, Karnataka; WHaQ!/We’re Here and Queer!,
Bengaluru, Karnataka; and Sahayatrika, Kerala.

First and foremost amongst many is the Naz Foundation, Delhi successfully
petitioned against the Section 377 of the Indian Penal Code, 1860 and won in the
historic against the Govt. of NCT of Delhi before the Hon’ble Delhi High Court.
LGBTQ fundamental human rights have been a long term goal for this foundation.

The Adhikaar, New Delhi is an advocacy and activist organization that works
in direct partnership with 13 grassroots LGBTQ community organizations from
different parts of the country for securing equal citizenship rights for all LGBTQ
persons.37

The Sangini trust, of the Naz Foundation is the oldest non-governmental

organization providing community support program, both online and offline, in India
to reach out to Lesbian, Bisexual and Transgender persons, and providing them with
support. By providing shelter and vocational support to the LGBTQ people the trust
37
Lakshya Kalra, “Because We Were Born This Way: Here Are Ten Indian Organizations Working For
The LGBTQ,” available at: https://www.youthkiawaaz.com/2013/08/because-we-were-born-this-way-
here-are-ten-indian-organizations-working-for-the-lgbtq/amp/ (Visited on June 01, 2018).

40 | P a g e
supports the individuals. It provides 24/7 emergency response services to LBT
individuals whose human rights are being violated.

The Mitr Trust, New Delhi is headed by Rudrani Chettri; a transgender

activist from Delhi. It has worked for more than ten years, in spreading awareness and
fighting to improve transgender lives in India. The Trust helps over 1,500 TG people
in Delhi alone.

The TARSHI (talking about Reproductive and Sexual Health Issues) founded
in 1996, New Delhi, India is a registered NGO based in New Delhi, India. The
organization aims to provide inclusive information, oriented to the audience and easy
to understand.38

The Nazariya, is a great resource for the lesbian community, and focuses on
lesbian, bisexual, queer, gender and non-binary people assigned to the female gender
of women. They have a direct line and offer consultations in person from 11 am to 6
pm (Monday through Friday). Apart from this, they have a support group for workers
of the working class LBT.

Finally, the Humsafar Trust: Established in 1994, in Mumbai the Trust has
become one of India's most influential voices on health and human rights for LGBT
communities. It provides resources for the transgender community specifically the
hijras worskshops for vocational training for transgender and hijra people,
"Sanjeevani" for MSM and transgender people living with HIV and other programs
for the LGBT individuals. Through its six major projects on prevention, care, support
and treatment, the organization targets more than 9,000 MSM and transgender people
in Mumbai.39 On April 7, 2017, the trust company inaugurated its new community
center in Sant Nagar, east of Kailash, Delhi, to offer its services to the LGBTQ
community of Delhi and to offer them a welcome center. Sonal Mehta, CEO of the

38
MJ, “Indian NGOs/Support Groups For LBT Persons You Need To Know,” available at:
http://gaysifamily.com/2017/08/16/12-indian-ngossupport-groups-lbt-persons-need-know/ (Visited on
June 01, 2018).
39
The Humsafar Trust,available at: http://www.satyamevjayate.in/accepting-alternative-
sexualities/ngo-humsafar-trust.aspx (Visited on 23.05.2018).

41 | P a g e
AIDS Alliance are extremely important partners of the trust in encourage for change
in the sexual practices in the country to decrease incidence of AIDS.”40

1.7.2 THE GOVERNMENT ORGANIZATIONS (G.O.) & AGENCIES

The Kochi Metro Rail Ltd: this is a company owned by the Government of
Kerala, which is the first government agency in India to open its doors to transgender
people, from a landmark Supreme Court ruling in 2014 that recognized the three
Million transgender people in the country. The company is providing jobs to
transgender people as part of an innovative government-owned initiative to integrate a
community that has long suffered discrimination and has survived on the margins of
society. Twenty-three transgender people work in the areas of ticket sales, customer
service and cleaning services, which gives them the opportunity to meet thousands of
people on the subway. Kudumbashree project manager, Dilraj KR, said: "Ordinary
people like you and I will also have the opportunity to interact with these people,
which will make it easier to understand that there is nothing fundamentally different
between us and the people. They are also human beings like everyone else.”

To ensure success in their initiative, the Kerala Information, the public

relations department of Kerala, India, published the 30-second video aiming to
promote diversity at Kochi Metro Rail in Kerala, south India. The video is a way to
educate the public about discrimination and to welcome new employees at the Kochi
Metro. The 30-second video and the message behind it have been received well. It
was posted on June 16, 2017 and has over 1.3 million views and 28,000 shares since
then. Although the video was created specifically for the new Kochi Metro and their
transgender employees, the message is universal and can be used and applied to any
workplace environment that supports diversity and inclusion in the workplace.41

The Ministry of Social Justice & Empowerment: This ministry has been
dealing with the matters relating to transgender persons with effect from July 2012.
However, the work relating to transgender persons was allocated to this Department
under the Allocation of Business Rules in the month of May 2016. To study these

40
Humsafar LGBTQ Centre in Delhi inaugurated on April 7, 2017, available at:
https://www.facebook.com/notes/humsafar-trust/humsafar-lgbtq-centre-in-delhi-inaugurated-on-april-
7-2017/10154664041389200/ (Visited on 29.06.2018).
41
Lenyon Whitaker, “Indian government releases video to show support for its transgender employees,”
available at: https://www.metro.us/lifestyle/kochi-metro-transgender-employees-video, (Visited on
June 01, 2018).

42 | P a g e
issues a committee was assigned to research and report ion issues being faced by the
Transgender Community. The Committee has submitted its report on 27 January
2014, suggesting various measures to ameliorate the condition of the transgender
persons. The concerned Central Ministries and the State/ UT Governments are being
consulted for their suggestions/views on the recommendations made by the Expert
Committee and furthermore, confirm what action can be taken at their end.42

The Expert Committee has recommended “Ministry of Social Justice &

Empowerment may set up a Standing Coordination Mechanism in the form of an
Inter-Ministerial Committee for coordinating the welfare activities being undertaken
by the various Ministries and State/UT Governments for transgender community
comprising representatives of concerned Central Govt. Ministries and representatives
of State Governments.” Accordingly, an Inter-Ministerial Committee has been
constituted to discuss these issues. Till date, four Inter-Ministerial meetings have been
conducted. The Centre has amended rules to include the welfare of transgender
persons in charter of work to be handled by Ministry of Social Justice and
Empowerment, following demands from civil society and transgenders to check
incidents of social harassment and crime against the 'third gender'.43

In 2014, the Supreme Court of India in a civil writ petition titled as “National
Legal Services Authority (NALSA) versus Union of India”44 (NALSA Judgment in
short) pronounced a landmark judgment and recognized transgender people as the
‘third gender’. The situation for India’s transgender community is dire, but news that
the nation will now officially recognize them as third sex comes as a largely positive
step on an ever-rocky journey. 45 The NALSA judgment was delivered in pursuance

42
Social Defence, available at: http://socialjustice.nic.in/UserView/index?mid=47564, (Visited on
June 01, 2018).
43
PTI, “'Welfare of transgenders' to be handled by social justice ministry,” available
at: https://economictimes.indiatimes.com/news/politics-and-nation/welfare-of-transgenders-to-be-
handled-by-social-justice-ministry/articleshow/52488638.cms (Visited on June 01, 2018).
44
(2014) 5 SCC 438.
45
Dr. MaheswarSatpathy, “Lives and Stories of Transgender Population in India Realities, Challenges,
Policy and Practices Implications for Policymakers and Practitioners,” available
at: https://www.researchgate.net/profile/Maheswar_Satpathy/publication/311614187_Lives_and_Stori
es_of_Transgender_Population_in_India_Expert_Resource_Document_on_Sensitizing_High_Level_G
overnment_Stakeholders_on_TG_Human_Rights_Issues/links/5850e02c08ae4bc8993b7352/Lives-
and-Stories-of-Transgender-Population-in-India-Expert-Resource-Document-on-Sensitizing-High-
Level-Government-Stakeholders-on-TG-Human-Rights-Issues.pdf, (Visited on June 01, 2018).

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of a Public Interest Litigation filed on 12 September 2012 by the NALSA46 against
the respondents namely, Union of India, State of Jammu & Kashmir, State of
Haryana, State of Nagaland, State of Uttarakhand, and State of West Bengal, seeking
to address the grievance of the Transgender Community. It prayed for a legal
declaration of their gender identity other than the binary gender, i.e., male or female.
A similar writ petition was also filed on 11 May 2013 by Poojaya Mata Nasib Kaur Ji,
Women Welfare Society47 against respondent namely, Chief Secretary, Ministry of
Home Affairs, seeking similar reliefs for the Kinnar community and the same has
been decided in the NALSA judgment.

While concluding it can be observed that the years 2012 to 2014, in India,
recognition of transgender as “third gender” has become a hotly debated topic. This
new found support system has fostered a trial for recognition and protection of rights
of the transgender. Significantly, in achieving this battle of recognition, several GOs,
NGOs and social activists have played a commendable role, and without their joint
and sincere efforts, our country could not reach up to this level. Nevertheless, there is
a lot to achieve qua welfare of transgender.

1.8 STATEMENT OF THE PROBLEM

Since time immemorial, the Indian Transgender community finds mention as
the marginalized and neglected section of the society and their pitiable experience of
life is well depicted in an Ad of IIN. 48 The condition of the Indian transgender
community before the year 2014 was despotic and desperate. However, being newly
recognized as a gender category i.e. ‘Third Gender,’ they are questioning the
Government of India as well as the society ‘Do we have to live with day-to-day
discrimination our whole life?’ and ‘Is it a sin to be born a hijra?’

The high level of protection and good remuneration in the National Capital
Territory of Delhi makes it a city of attractions for many which include transgenders
too, thus, a large number of transgenders migrate to N.C.T. of Delhi. However, being

46
Diary No. 30488/2012 Filed on 12-09-2012; Case No. W.P.(C) No. 000400 / 2012 Registered on 18-
09-2012.
47
Diary No. 15597/2013 Filed on 11-05-2013 Case No. W.P.(C) No. 000604 / 2013 Registered on 30-
07- 2013.
48
Idea Internet Network IIN Eunuch 25 sec TVC, available at:
https://www.youtube.com/watch?v=ozNlW_iYhX4&list=PL-bwsdPppjHAr6s8dsY3H3-
49gLuoHqZj&index=3 (last visited on June 15, 2018).

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the world’s second most populous city has its own barriers and shortcomings in
promoting the wellbeing of all its inhabitants especially the vulnerable sections of the
society including transgenders.

In 2012, in order to ascertain the exact population of transgender population in

India, a study under the aegis of NE-ICMR, UNDP and NACO was conducted,
however, only seventeen states were bought under the ambit of study and surprisingly
the study did not cover the N.C.T. of Delhi. Therefore, it can be said that there is not a
single study representing the status of the transgenders of the N.C.T. of Delhi.

Thus, to find out the real position and status of the transgenders of the N.C.T.
of Delhi, their problems i.e. of personal, social, political, legal, religious, educational,
economic and professional nature, etc.; causes of those problems as well as their
solutions, wishes, expectations and wants, the researcher undertook this study.

1.9 AIMS & OBJECTIVES

The researcher had the following measurable objectives:

1. To explore the national as well as international status of the rights of the

transgender community;
2. To rationally examine the relevance of the National Legal Services
Authority v. Union of India,49 Judgment of the SC of India; and
3. To analytically examine the standard of living of the transgenders of the
N.C.T. of Delhi.

1.10 HYPOTHESES
The researcher had the following hypotheses:

1. Whether the national safeguards on the transgender community are

compatible with the international standards?
2. Whether Supreme Court’s decision in National Legal Services Authority v.
50
Union of India, is helpful to bring the Indian transgender community at
par with the other citizens of India?

49
(2014) 5 SCC 438.
50
Ibid.

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 3. Whether the standard of living of transgenders of the N.C.T. of Delhi are
confirming the Constitutional and legal rights prevailing in India?

1.11 RESEARCH METHODOLOGY

NATURE: The research is a combination of doctrinal and non-doctrinal (i.e.

empirical) methods of study. The study is a socio-legal research having inter-
disciplinary linkage, namely, with law, medicine, psychology and sociology fields.

SOURCES: For doctrinal research, the secondary sources has been used and
broadly, it revolves around several national and international legislations, national and
international reports, the law libraries resources, legal, fictional and non-fictional
books, commentaries, online and offline articles, the historical, latest, national and
international judicial pronouncements, magazines, newspaper editorials, movies
(national and international), websites, etc. and are properly explained in the
bibliography section. The non-doctrinal research is based on the primary sources
collected by the researcher by following the below explained research methodology.

SAMPLE: For doctrinal study, the selective-comparative method is used and

which is limited to the following named countries, i.e., India, the United Kingdom,
the United States of America and some international bodies, namely, the United
Nations Organization, the European Council, etc. For non-doctrinal study, the
researcher is the simple random sampling method.

UNIVERSE: For the non-doctrinal study, the whole of the N.C.T. of Delhi is
the universe of the study.

SAMPLING DESIGN: The researcher has placed its respondents in three

Groups totaling one hundred four (104) in number and these are selected by following
the simple random sampling method.

 The Group I: This group consists of fifty transgenders from the universe.
 The Group II: This group consists of four Heads/Managers (one from
each from the actively working Four NGOs for transgenders rights in
the universe).

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  The Group III: This group consists of total fifty adults from the general
public which composes of twenty five male and twenty five female from
the universe.

TOOLS & TECHNIQUES: A structured-questionnaire interview method is

opted to have data in analytical manner and which consists several close-ended
structured as well as several open-ended structured questions.

To represent the close-ended questions data in graphical form the rating scales
technique is used with the help of the International Business Machines Statistical
Package for the Social Sciences (in short known as: IBM SPSS) Package i.e. the
modern version of Microsoft Excel.

The collected data of the doctrinal study is analyzed in comparative manner by

following the named steps i.e. a) Classification of Data, b) Analysis of Data and c)
Conclusion, Inferences and Suggestions.

For non-doctrinal study, the data has been collected, and the researcher
analyzed the responses by observing the named steps: i.e. a) Editing; b) Coding; c)
Classification; d) Tabulation or Charts; e) Statistical Analysis of Data; and f)
Interpretation and Inferences.

1.12 THE CHAPTER PLAN

This thesis has total seven chapters:

 The CHAPTER-1 is the INTRODUCTION. In this chapter the historical

evolution as well as the current meaning, genesis and development of the
notions on the transgender community have been appraised. Furthermore,
this chapter has holded the guiding light to the researcher to conduct the
research in proper manner.
 The CHAPTER-2 is the COMPARATIVE INTERNATIONAL
PERSPECTIVE ON TRANSGENDER COMMUNITY. This chapter
displays the historical and current status of the laws and policies of the
United Kingdom, the United States of America as well as the conventions
and resolutions of the international bodies, working, representing and
protecting the transgender Community world at large, such as, the United
Nations Organisation, the European Union, etc. Furthermore, the chapter

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 also contains the explored international judicial precedents and
pronouncements on the subject matter.
 The CHAPTER-3 is the INDIAN CONSTITUTIONAL
PROTECTION OF TRANSGENDER COMMUNITY. This chapter
discloses the Indian legislative as well as constitutional protection of the
transgender community. Moreover, comparative analysis of the latest
developments and the efforts of the State Governments from the ground
level to bring the transgenders in the mainstream and to bring Indian
transgenders equivalent to the transgenders of the whole world.
 The CHAPTER-4 is the NATIONAL JUDICIAL APPROACH
TOWARDS TRANSGENDER COMMUNITY. This chapter discloses
the role of the Indian Judiciary and its approach towards transgender
community.
 The CHAPTER-5 is the ANALYSIS OF THE PROPOSED INDIAN
LEGISLATIONS ON TRANSGENDER COMMUNITY. This chapter
deals with all of the legislative measures and advanced done by our
legislature by way of the Bills and Acts in the better of the transgender
community.
 The CHAPTER-6 is the STATUS OF THE TRANSGENDER
COMMUNITY OF THE NATIONAL CAPITAL TERRITORY OF
DELHI: A SOCIO-LEGAL EMPIRICAL ANALYSIS. This chapter
represents the real and actual position of the status transgenders as well as
status of adults of the universe of the study i.e. the N.C.T. of Delhi. The
approach being comparative, so that, all of the natural intentions, problems
and solutions of all the respondents reached directly in hand of the scholar
and the findings are being represented in analytic and scientific manner.
 The CHAPTER-7 is the CONCLUSIONS & SUGGESTIONS. This
chapter represents the chapter-wise conclusion and the results of the
hypotheses. Moreover, this chapter share the suggestions of the researcher
grounded on the findings of the research.

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