Beyond Marriage: Prioritise basic rights for gender non-conforming people

Have we ever bothered to think what it means to be born as a gender non-conforming child? When an infant is born, the first step is to assign a sex to the infant. What happens when the infant’s anatomy cannot be categorised in the binaries of ‘male’ and ‘female’? A baby with ambiguous genitalia is seen as a curse for the family. In many cases, such babies are abandoned at birth itself. In other cases, the infant is made to undergo a ‘sex normalising’ surgery, which is irreversible, risky, medically unnecessary and could lead to mental/physical trauma later in life.

Even where the baby grows up with the family, in majority of cases, the child’s gender characteristics and expressions are unacceptable to the family and the society at large, leading to acute mental and physical repression and torture to the child. By the time they’re in their teens, such children have suffered so much that most feel compelled to leave their home – only to be trapped into the ‘jamaat’ system that forces them to live in a ‘culture’ where sex-trade and begging is the norm. Drug abuse and life-threatening diseases such as HIV/AIDS are rampant in this community. It is the rarest of rare cases that escape this fate.

INTERSEX PERSONS

A person born with ambiguous reproductive or sexual anatomy is termed as an ‘intersex’ person. Earlier the term in use was ‘DSD’, that is a person with ‘Disorders of Sexual Development’. However, the community finds the term offensive.

Intersex is a term used to describe individuals who are born with sex characteristics that do not fit typical definitions of male or female. The biological variations can manifest in a variety of ways, including differences in chromosomes, hormones, internal reproductive organs, and external genitalia. Though some think of intersex anatomy as an inborn condition, it doesn’t always show up at birth. It may become evident during puberty or later in life. What’s important to note here is that intersex is a naturally-occurring biological variation, beyond the control of the child and the parents.

“It is evident that it is not queerness which is of foreign origin but that many shades of prejudice in India are remnants of a colonial past,” Chief Justice of India”
– DY Chandrachud said

The first ‘human right’ of a child, surely, is the right to retain the identity with which it was born! So, why is the elite group of ‘gender rights activists’ silent on the ‘sex normalising’ surgeries that are being silently conducted across the country since ages?

Gopi Shankar Madurai, an intersex person and a passionate gender activist, says: “These surgeries are regularly performed without the informed consent of the person concerned (in this case the infant, who is too young to make the decision). These procedures are completely against human rights of people living with intersex traits. There is no national child policy in place to protect the right of these babies. This is one of the reasons why, just like female infanticide, intersex infanticide exists in Bharat. Midwives in villages are forced to end the lives of babies born with immature genitals or intersex traits.”

Gopi Shankar is one of the petitioners in the recent case that came up before the Supreme Court, and is the South Regional Representative of the National Council for Transgender Persons (NCTP), appointed under the Transgender Persons (Protection of Rights) Act, 2019 (the Act) by the Ministry of Social Justice and Empowerment, Government of India.

In case of sex ‘corrective’ or ‘selective’ or ‘reassignment’ surgeries, 99 per cent of parents insist on their intersex child being made a “boy”. Media reports quote doctors who confirm that families prefer a male child for inheritance purposes and refuse to listen to the logic that the child may grow up to be a psychologically disturbed adult.

Then there is the issue of the birth certificate. Experts estimate that up to 1.7 per cent of the population are born with intersex traits. In Bharat, that translates into a big number! There are only two options to fill in the birth certificate – male and female. So, the doctor has to ‘assign’ a definitive sex to even an intersex infant in the records. Which means that these children have to live with the sex identity they’ve been ‘assigned’ even if later they do not confirm to it.

In a landmark decision in 2019, the Madurai Bench of the Madras High Court banned sex reassignment surgery (SRS) for intersex children. Stating that children must be given time and space to find their true gender identity, the court raised concerns over parents rushing to have SRS performed. In August 2023, the Kerala High Court ruled that sex-selective surgeries on intersex children can only be permitted based on the recommendation of a state-level multidisciplinary committee.

These are only state-specific laws as yet. Activists must work to ensure these regulations across Bharat. The government of Bharat must do all it takes to safeguard these children and to ensure they have the dignity of their own identity. The first step has to be awareness and data collection. “There is no awareness about us, we’re not even part of the Census,” laments Gopi Shankar.

TERMINOLOGIES

We usually use the words ‘sex’ and ‘gender’ interchangeably. Technically, this is incorrect. Sex identity is what all of us are born with, in fact almost all living beings can be categorised as either male or female. ‘Male’ and ‘female’ are sex identities, while ‘man’ and ‘woman’ are gender identities that are used to qualify certain characteristics of human beings. ‘Gender’ is a sexual orientation that has more to do with feelings, behavioural patterns and mannerisms.

Lesbians, gays, transgenders, intersex people etc. are communities that are distinct from each other in their sexual orientation. One term that is used to encompass all those who do not confirm to physical and psychological sex or gender binaries is ‘genderqueer’.

The genderqueer community objects to being defined as the “third gender” – as done by the Supreme Court in 2014. “Who can decide the first, second and third slots? Definitely, man is not the first gender, woman is not the second gender, and transgender is not the third gender,” Gopi Shankar says.

It is increasingly felt, worldwide now, that the term LGBTQIA+ (lesbian, gay, bisexual, transgender, intersex, queer/questioning, asexual, and more) is unable to represent the diverse characteristics of the gender non-conforming people. The new term is SOGIESC, which is seen as more inclusive. SOGIESC is an acronym for ‘Sexual Orientation, Gender Identity & Expression and Sex Characteristics’. It’s an umbrella term for all people whose sexual orientations, gender identities, gender expressions and/or sex characteristics place them outside culturally mainstream categories.

TRANSGENDER PEOPLE

Transgender or transsexual people are born with typical male or female anatomies but feel they’re born into the wrong gender. For instance, a transgender/transsexual person may have typical female anatomy but feel like a male.

“There is a difference between intersex persons and transgender persons. Transgender is a gender identity, we have men, women, and transgender people — actually, there are almost 200 genders,” says Gopi Shankar.

“Gender does not depend on physical attributes but is a feeling that comes from within. It is natural, and not artificial as many believe,” says Reshma Prasad, a transwoman who works to mainstream transgender persons in Bihar.

Community acceptance is a very big challenge in the lives of transgender/transsexual persons also. As soon as their sexual orientation manifests in their mannerisms, the ostracization begins. Most such children drop out of school at an early age. Only a lucky few are able to complete their education. Their luck runs out at that point because the society offers them no job opportunities, no chance at a normal life. They are laughed at, abused and rejected by the ‘normal’ civil society.

The real fight is the fight to be accepted in society as they are, to be allowed equal opportunities in every sphere, to be assimilated and to be allowed to live a life of dignity.

THE BHARATIYA PERSPECTIVE

In the Supreme Court judgement on the same-sex marriage issue, the honourable judges made some significant observations that can guide us, as a society, in working for the rights of the genderqueer.

“It is evident that it is not queerness which is of foreign origin but that many shades of prejudice in India are remnants of a colonial past.” Chief Justice of India (CJI) D.Y. Chandrachud said.

Justice Sanjay Kishan Kaul accepted non-heterosexual relationships as part of the “pluralistic social fabric” and an “integral part of Indian culture”. Centuries before the ‘LGBT…’ term originated, the Bharatiya culture has known about, acknowledged and assimilated the different gender variants. In Vedic times, India had great indigenous culture, ancient temples, and gods dedicated to the ‘genderqueer’.

It is said there are over 50 words in Sanskrit, Prakrit and Tamil that refer to non-heteronormative genders and sexualities used in Hindu, Buddhist and Jain literature.

The word ‘kinnar’ has its origins in Sanskrit ‘kim-nar’ or ‘kim-purush’ that also referred to a ‘divine class of gandharvas who excel at music’ or in other words, a celestial lover and musician, half-human and either half-horse or half-bird. The term ‘hijra’ came much later as it’s of Arabic descent and originally referred to people who moved from place to place.

Gopi Shankar has been researching on this for long. “In Hindu tradition, ancient Tamil Sangam literature uses the word ‘Pedi’ to refer to people born with the intersex condition; it also refers to antharlinga vashi and diverse indigenous non-binary sex identities. The ancient Sanskrit term for Intersex is Kleeba and it became root syllable (Mantra) for Devi worship in India, Nepal and Tibet,” he says.

The Aravan spiritual tradition in the Koovagam village of Tamil Nadu is a folk tradition of the transwomen who are predominantly assigned as male at birth. This is completely different from the sakibeki spiritual tradition of West Bengal, where transwomen don’t have to undergo sex-change surgery or shave off their facial hair. They dress in feminine clothes; still retaining their ‘masculine’ features and sing in praise of Lord Krishna.

The indigenous communities of India include the Nupi Manbis of northeastern India, the Bachura Devi worshipped in Gujarat and the Jogappa spiritual tradition of Karnataka. When the Supreme Court decriminalised homosexuality in 2018, international media reported it as a landmark ruling that overturned a “colonial-era law”. In fact, much before Bharat faced continuous onslaught of foreign invasions, beginning with the Muslim invaders, this community was more ‘normalised’ than it has ever been in modern times. “You’ll be surprised to know that one of the commanders of Nand dynasty in Pataliputra was a transgender. Similar examples were there in many other states in Bharat,” Reshma Prasad says.

In the southern states, there are temples dedicated to genderqueer people and beautiful traditions involving them, community people tell us. But these facts are lost to the common public in the absence of awareness and understanding.

THE JAMAAT SYSTEM

It is an open secret among those who know about the ‘Jamaat system’ that a very powerful Islamic lobby controls the multi-billion dollar economy that runs on the shoulders of the genderqueer community. Those who get trapped in their clutches are never allowed to leave, because there are many dark secrets involved – sex, drugs and spy networks. Unfortunately, since this community is socially outcast, the cases of disappearances and murders also go largely unreported and un-investigated.

In this context, we must know that Islamic laws consider any kind of gender non-conformity to be the greatest sin and punishable with death. In at least nine Muslim countries homosexual or non-heterosexual activity is punishable by death, mostly by stoning. These countries include Yemen, Iran, Mauritania, Nigeria, Qatar, Afghanistan, Somalia, Sudan and Brunei. In other countries that follow Islamic laws, non-conforming gender expressions and activities are criminalised, with varying degrees of punishment. A Forbes report pointed towards de facto criminalisation of such people in 37 countries.

Remember, America’s deadliest mass shooting (49 killed) at a gay nightclub in Orlando in 2016 was done by one Omar Mateen, who called 911 during the attack and pledged allegiance to the anti-gay Islamic State of Iraq and Syria (ISIS) – a group that releases propaganda videos of gay men being thrown off buildings.

In this backdrop, one wonders why and how the marriage issue gets so much hype when the fundamental issues of equality, dignity and inclusivity are yet to get addressed on a serious level? Marriage or civil union status may be one of the issues of consideration, but can it be the only one? The future generations of gender non-conforming children and genderqueer adults should be the focus of gender rights activists, civil society, governments and also the judiciary – for the welfare of the community and the larger good of the society . An inclusive society is a healthy society.