Historical Background and Legal Status and Rights of Third Gender in Indian Society 

Back to: Gender, School and Society- Unit 2

In Indian society, transgender encompasses all ethnicities, religions, races, and social classes. However, they are from enjoying a respectable life, because of “what they are” and “how they are”. They are subject to anguish and confusion that result from the rigid, forced conformity to sexual dimorphism that exists throughout the recorded history of India. They are prone to facing disparities linked to discrimination, societal stigma, and denial of their civil and human rights. Discrimination against transgenders has been related to high rates of substance abuse and suicides. They also face rampant discrimination in the areas of family life, social life, housing, education, health, etc.

In general, transgender is an umbrella term for people whose gender expression, identity, or behavior does not conform to their biological sex.

It may also include people who do not identify with their sex assigned at birth. This includes Hijras/Eunuchs who, in this writ petition, describe themselves as the “third gender”. They identify as neither male nor female. Hijras are not psychologically women and they are also not men by anatomical appearance despite being like women but with no female reproductive organ and no menstruation.

As per studies, India has an estimated two million transgender people. A few common terms used to describe transgender people in India are transsexuals, cross-dressers, eunuchs and transvestites is a hijra. Campaigners state that they live on the fringes of society, often in poverty because they are ostracised due to their gender identity. Singing, dancing, begging, and prostitution are some of the most common professions they pursue to make money.

Since the colonial era, the abominable state of the third gender has been prevalent. When the legislature enacted the Criminal Tribes Act, 1871, to supervise the deeds of the hijras/TG community, it was deemed by the entire community of Hijras persons as innately ‘criminal’ and ‘addicted to the systematic commission of non-bailable offenses. The Act stressed the registration, control, and surveillance of certain criminal tribes and eunuchs and had penalized eunuchs, who were registered, and appeared to be dressed or ornamented like a woman, in a public street or place. Such people also could be arrested without a warrant and even be sentenced to imprisonment up to two years or a fine or both.

The National Legal Services Authority, constituted under the Legal Services Authority Act, 1997, was enacted to provide free legal services to the weaker and other marginalized sections of society, and this Act advocated the cause of the third gender.