India is no longer part of the British Empire. The British colonial territories are left a vast legacy across the globe, and nowhere is that seen more than in India, the jewel in the imperial crown. Tea plantations, test cricket (T20, less so), and the delightful version of English as spoken by those living on the subcontinent are among the positives. Sadly, bad came with the good, including legal and social restraints on those who don’t fall into the conventional male and female roles — the hijra, as transgender people, transsexuals, cross-dressers, eunuchs and transvestites are known.
Geeta Pandey of the BBC noted the “Criminal Tribes Act of 1871 categorised the entire transgender community as ‘criminals’ who were ‘addicted’ to committing serious crimes.” She said that although the law was repealed in 1949 when India became independent, the hijira in general, and transgender Indian in particular, have been abused, ghettoized and harassed by the authorities. Just a few days ago, though, the Supreme Court of India ruled transgender individuals to be a distinct gender.
“Recognition of transgenders as a third gender is not a social or medical issue, but a human rights issue,” Justice K.S. Radhakrishnan, who headed the two-judge Supreme Court bench, said. “Transgenders are also citizens of India” and they must be “provided equal opportunity to grow.” His Lordship also said, “The spirit of the Constitution is to provide equal opportunity to every citizen to grow and attain their potential, irrespective of caste, religion or gender.”
This recognition of the “right of every human being to choose their gender,” however, merely returns the subcontinent to its traditional perspective. Transgender characters appear (and not as horrible abominations) in the Mahabarata, the Sanksrit epic. Indian history prior to the arrival of Europeans is replete with cases of third gender individuals rising to great heights.
Where the court’s decision will have immediate impact is in medical care, education and job prospects. Transgender activist Laxmi Narayan Tripathine, who was one of the petitioners who brought the case, told the media on the court house steps, “Today, for the first time I feel very proud to be an Indian.”
And I am pleased for the estimated 2 million Indians who finally get to be treated as equal citizens under the law. Except that they aren’t going to be, at least not yet.
You see, back in December, the Supreme Court reversed a 2009 Delhi High Court decision that struck down the law against homosexual acts. Section 377 of the Indian Penal Code dates back 153 years, when Britain ruled India and had its own unpleasant laws regarding homosexual acts. In India, such an “unnatural offence,” to use the legal term of the day, could get you 10 years in the chokey (one of my favorite Indo-English words).
So, the question that must be answered, is whether a member of the third gender violates the law against homosexual acts, a law passed when the legal system only recognized male and female citizens. I figure the law needs to go lock, stock and barrel. However, until parliament or, more likely, the courts decide that, the transgender community of India remains in a legal limbo — free but not quite.
Undoubtedly, there will be a court case. And the accused will have to fight all the way to the top. Since the law says that two men cannot legally have sexual relations, the law has a bit of trouble being stretched to include a person held to be legally distinct from the category of an Indian male.
Of course, it’s one thing to change the law, and quite a harder thing to change people’s attitudes. Black Americans achieved legal equality in 1865 with the 14th Amendment (or 1965 with the Voting Rights Act if you were paying attention). I see no evidence that they enjoy social equality as yet.
Nevertheless, we must take our victories as they come, and in India, we are winning.