A Comparison of the Legal Rights of Gender Non-Conforming Persons in South Asia

By according legal recognition to transgenders, hijras and other gender non-normative persons, the countries of Pakistan, Bangladesh and Nepal have taken a crucial step to empower these persons and enable them to live a life with dignity and without discrimination. Whether India joins this group of nations or not, will depend on a soon to be announced verdict by the Supreme Court.

Dipika Jain (djain@jgu.edu.in) teaches at the Centre for Health Law, Ethics and Technology at Jindal Global Law School, O P Jindal Global University, Sonipat. Kimberly Rhoten (krhoten@jgu.edu.in), is a research fellow, Centre for Health Law, Ethics and Technology at Jindal Global Law School, O P Jindal Global University, Sonipat.

There is a remarkable trend occurring in south Asia: the official legal recognition of gender non-normative persons (including persons identifying their gender as outside of the traditional binary of woman or man) and their rights to equality. In 2007, Nepal recognised transgender as a separate gender category and granted equal citizenship to them.¹ In 2009 and 2011, Pakistan recognised third gender persons as a category for state official identification documents and ordered the National Database and Registration Authority (NADRA) to issue third gender identity cards to individuals identifying as such.² More recently in Bangladesh, the cabinet presided over by Prime Minister Sheikh Hasina recognised hijras as a third gender for the purposes of government identification and certain entitlements.³In India, there is currently a case pending before the Indian Supreme Court requesting the recognition of and equal treatment for “transgender” persons. Recently transgenders, hijras and other gender non-conforming persons (GNP) in Delhi (and across the country) voted; many of them wanted to utilise their ballots to fight for equal treatment, employment opportunities and welfare schemes for their community.⁴
The majority of countries in south Asia have legally recognised GNP through the country’s judicial branch; however, the categories of persons recognised are vast and extraordinarily diverse. In south Asia, there exists a plethora of gender minority groups, including but not limited to hijras, transmen, transwomen, third genders, aravanis, khusras, zenanas, and kojja.⁵ Each gender non-normative community has its own unique set of characteristics and faces different legal and social barriers in their respective countries. The issue of legal recognition for such groups is, therefore, incredibly nuanced.
Nepal: ‘Third Types of People’
Both in Nepal and Pakistan, the Supreme Court has been the main battleground for GNP rights. In Nepal, the Blue Diamond Society (Nepal’s first lesbian, gay, bisexual, transgender and intersex (LGBTI) organisation) and several other gender minority organisations brought suit⁶ against the Nepalese government on behalf of “third types of people” in the Supreme Court. The petitioners defined “third types of people” as all those persons who identify themselves as homosexual or third gender; thus, the definition of such persons was rather expansive including not only gender minorities (like transmen, transwomen and third gender persons) but also sexual orientation minorities (bisexual, homesexual, etc). The Court’s decision legally recognised third persons for the first time, held that such persons were equal before the law and that the government could not discriminate on the grounds of sexual orientation. Thus, the Court’s holdings ushered in several new GNP and sexual minority rights: the right to gender identification, the right to same sex marriage and the right to engage in homosexual acts. In May 2011, the Central Bureau of Statistics of Nepal has since officially recognised a third gender option for individuals taking the census.⁷
Pakistan: Legal Rights
Pakistan has seen similar developments in the judiciary; chiefly, in the Supreme Court. However, the GNP category recognised and protected by Pakistan’s Supreme Court is remarkably different from that of Nepal’s. In 2009, the country’s Supreme Court legally recognised “eunuchs” as a third gender and declared that their rights to life and dignity be equally protected. Eunuchs as a term was left undefined within the decision. The traditional meaning of the term eunuch is a man who has been castrated. The lack of clarity on what was meant by Court’s usage of “eunuch” is highly divergent from Nepal’s expansive umbrella term of “third types of persons”. Several follow-up decisions were issued to elaborate and provide details on the rights of this community. The most notable being a 2011 decision in which Pakistan’s Supreme Court mandated that the eunuch-persons be allowed to register to vote without encumbrances. Specifically, the Supreme Court instructed the NADRA to allow these persons (GNP), at their own election, to identify themselves as male transgender, female transgender or “khunsa-e-mushkil”. Thus, the Supreme Court widened the reach of its protections and entitlements to other groups of GNP beyond its earlier holdings’ narrow and rather “inappropriate” term of “eunuch”.
Bangladesh: Pioneer
The legal route taken in Bangladesh is a significant departure from the south Asian general trend towards utilising the judiciary. In 2009, the Bangladesh Supreme Court held that hijras had the right to vote. However, the true formal recognition occurred outside of Bangladesh’s courtrooms. In November of this year, the Bangladeshi government announced that it would officially recognise the “hijras” as a separate gender for the purposes of official government documents (passports, identity cards). The announcement was a result of a cabinet meeting chaired by the prime minister, Sheikh Hasina, and was not a Supreme Court decision. This voluntary executive recognition of GNP is worlds apart from Pakistan and Nepal’s forcible judicial mandate to the governments of each country respectively. Not only does the government of Bangladesh’s recognition come without judicial compulsion, it has the potential to be one of the most expansive in the global South with regards to welfare schemes for GNP. According to the announcement, hijras will now be eligible for certain welfare services such as health services, housing and education.
India: A Decision Awaited
In India, a Supreme Court case on the rights of “transgenders” is well underway – the Court having already heard arguments and reserving its judgment. The petitioners have demanded that transgendered persons should be recognised as a separate gender category and be protected from discrimination on the basis of Article 15 of the Indian Constitution. Second, the petitioners have requested that persons belonging to this new separate gender category be given certain welfare entitlements (housing, sexual reassignment surgery, etc) and legal rights (e g, marriage and adoption). During arguments, the justices heavily contested the limits of the petitioner’s “transgender” category and asked questions regarding these persons’ capacity to have “normal sex” and children. According to the petitioner, “transgender” persons cannot have normal sex or children and are defined as a “third gender”. An expert committee on “the issues facing transgenders” has been set up and will announce its policy recommendations in January 2014. It is not yet clear whether the Court will legally recognise this category, and if it does so, then how the Court and expert committee will define it. Yet regardless of the outcome, NALSA vs Union of India & Ors will be marked as the first court case in India to explicitly address the legal rights of GNPs (particularly, hijras).
India’s judiciary has had limited interactions with the transgender and gender non-conforming communities; of these cases, many reflect India’s societal discrimination against these communities. In the case of Kamala Alias Kamala Jaan Alias Hijrah vs Sadiq Ali & Others,⁸ the Court struck down the mayoral election of a self-identified hijra on the basis that the hijra-candidate could not be considered a “woman”. The elected office of the mayor had been reserved for a woman. The Court reasoned that because hijras lack the physical capacity to produce a child, they were not women and thus could not accept the mayoral position. Therefore, the Court held that the election of the hijra candidate was void. This case demonstrates the highly discriminatory treatment of hijra individuals within the court system. As they are seen as neither men nor women, they are unable to be offered the same protective rights as well as entitlements of ordinary citizens. If the hijra-candidate had been a woman, she could have accepted the mayoral position. Furthermore, if she had been considered a man, she (or he) could have applied for a position reserved for a man. However, as she identified as neither a man nor a woman, no position was available to the candidate on the basis that she identified as a hijra. Although NALSA vs Union of India & Ors stands to be the first court case to directly focus on the rights of the transgender community, cases such as Kamala Alias Kamala Jaan Alias Hijrah vs Sadiq Ali & Others show that the Court has historically ruled against the equal treatment of this community.
Though they are few in number, there are a handful of cases that reflect progressive attitudes towards the transgender and other GNP in India. For example, the case of Jayalakshmi vs The State of Tamil Nadu⁹ represents a stark departure from the jurisprudence discriminating against transgender individuals. In this case, the Court found that petitioner’s transgender brother (then deceased from self-immolation) had been sexually harassed and assaulted by the police of Tamil Nadu, and that such police-respondents were liable for their conduct against the deceased. The Court acknowledged that the petitioner’s brother was transgender, yet the Court treated him as an equal citizen warranting protection and deserving of human rights. In a key line of the case, the Court states that the police-respondents had “committed drastic inhuman violence on the body (of deceased)…which is not only a human right violation, but also not expected of the police personal…”.¹⁰ Thus, the Court recognised that a transgender person was worthy of human rights and constitutional rights. This case represents a progressive step towards the recognition of transgender persons as equal in civil society and under the auspices of the law. If India’s Supreme Court elects to recognise the transgender community and mandate equal treatment, cases such as Jayalakshmi may serve as guide-points for the upcoming decision in NALSA vs Union of India & Ors.
South Asia’s trend towards establishing the legal rights of GNP is impressive and stands to continue well on into the future as new cases are being brought both in India and Nepal. Thailand, most likely, will be dealing with this issue in the near future as the military has recently recognised the third gender. Other countries across the globe have also begun to recognise the need to establish gender identity rights and equality. For example, Argentina in 2011 passed legislation granting the right to gender self-identification for all government official documents and guaranteeing access to sex surgical interventions for all persons over 18.¹¹ This past year, Australia adopted legislation making it unlawful to discriminate against a person on the basis of sexual orientation, gender identity or intersex status under federal law.¹²However, with many countries such as the United States, Russia and England still lagging far behind (these countries have not recognised a third gender at a national level), south Asia may be a guiding beacon for the rights of GNP internationally. India may hopefully, with the upcoming Supreme Court decision and expert committee recommendations, help lead the way towards respecting gender identity rights and equal treatment of GNP.