WHETHER EUNUCH ARE RECOGNISED AS LEGAL ENTITY IN INDIA
SHARDA
III YEAR, VI SEMESTER
CHANAKYA NATIONAL LAW UNIVERSITY, PATNA
GAINDHI MAIDAN
PATNA- 1
India( Bihar )
ADDRESS- D/O DR. SANJAY KUMAR
MAHESH NAGAR
OPP. SHIV PURI HAULT
PATNA-24
Email- sharda4shyam@gmail.com
Ph- +91 9934693410, 0612-2260870.
Introduction
Law has always accepted classification on the basis of sex. Sex is understood as including male and female only. Today, it is possible to alter the intersexed infant’s sex through surgery. This surgery aims at ‘normalizing’ external genitalia to fit societal expectations. That reveals that we cannot conceive of sexual identity outside male-female binary.
One to four percent of the world population is intersexed (people who are anatomically or physiologically part male and part female or who have genitalia that are in between male-typical and female-typical geneitalia), not fully male or female.[1] India is also amongst many countries which recognize two sexes and thus third sex is marginalized[2] Furthermore, India does not recognize sex changes on identity cards, which makes it impossible for an intersexed or male hijra to choose a legal female identity. This article will examine the human rights abuses encountered by third sex in India.
Legal scholar Upendra Baxi, in the foreword to the PUCL(K) report, says: "The dominant discourse on human rights in India has yet to come to terms with the production/reproduction of absolute human sightlessness of transgender communities.... At stake is the human right to be different, the right to recognition of different pathways of sexuality, a right to immunity from the oppressive and repressive labeling of despised sexuality. Such a human right does not exist in India."[3]
This article deals with a pertinent question as to whether eunuch are recognized as persons; whether they are recognized as a third sex or are placed into the category of male or female; whether they are citizens of India; whether they are recognized as legal entity. In addressing such issues, this article eschews a simple focus on equality rights and examines constitutional language, interpretation, rules of citizenship, process of representation, and the constitutional reorganization of international and customary law.
1. WHO ARE EUNUCH
The American Heritage Dictionary defines "eunuch" as: (1) "A castrated man employed as a harem attendant or as a functionary in certain Asian courts," (2) "A man or boy whose testes are nonfunctioning or have been removed."[4] Hijra is the Urdu word for eunuch or hermaphrodite but now means a born hermaphrodite who dresses as a female or, more commonly, a born male who undergoes, or plans to undergo, surgical emasculation. Depending on the linguistic region in which they live, the hijra are also referred to as kinnar or mukhanni[5]. Intersexed hijras only include men who identify as women - never women who identify as men
There are estimated to be between 50,000 and 1.2 million eunuchs in India, where they are known as "hijras."[6]As to whether they are "born" eunuchs, the Wall Street Journal reported the breakdown of eunuchs in subcategories as follows: "Many were born with deformed genitalia; a small fraction is hermaphrodites, and others are homosexual cross-dressers. Some males undergo castration to be accepted in the community[7].
In India, the hijra community has existed for more than four thousand years[8] and is currently believed to number half a million.[9] Eunuchs are not male as they have imperfect or absent penis and they do not have sexual desire for women as men usually have. They walk like women, they have female names, and wear female clothing, jewelry, and bindi.[10] However, even if hijras are like women in terms of their dress and mannerisms, it is clear that they are also not women. Nanda classifies their female behavior as burlesque - dancing, smoking, and acting in sexually explicit ways, all things falling outside of the traditional female role in Indian society.[11] Hijras also work in male occupations such as construction.[12] Finally, hijras do not have female reproductive organs and are not able to have children.
II. Not Male, Not Female: Defining Intersexuality
Sex is typically determined at birth by focusing on external genitalia.[13] This is problematic in two particular cases. The first case is where the sexual organ is ambiguous because it can be classified as either an abnormally small penis or a large clitoris.[14] The second situation occurs when genitals do not correspond to chromosomal sex. For example, individuals with Androgen Insensitivity Syndrome (AIS) have male XY chromosomes but female external genitalia because of insensitivity to androgen, a steroid hormone that directs the development of masculine sex characteristics.[15] In addition to not taking into account chromosomal makeup (XX for females, XY for males), determining sex by only looking at external sex organs is also an erroneous inquiry because it ignores other significant biological sex characteristics, including reproductive sex glands, internal sexual organs, hormones, and secondary sexual features such as facial hair or breasts.[16]
Legal definitions and assignment of sex/gender have powerful implications for individuals.[17] Despite this fact, the legal system continues to adhere to traditional notions of sex and gender, even though other discourses now acknowledge that these categories are not as straightforward as was previously assumed.[18] This lack of recognition serves to isolate the transgender community, especially eunuch in matter of civil rights.
In society where gender identity differs from one’s biological sex leads an individual to become a transvestite, transgendered or eunuch. Gender is different from sex. It is in culture. It is a social construction. The former two is accepted in society but eunuch challenges the male female binary, so there case is more susceptible. Transsexuals and the intersexed challenge the male-female binary head on - by seeking to either transition from one sex to another or by not fully expressing one biological sex.[19]
Sex in traditional approach include only male and female. Webster's defines "male" as "designating or of the sex that fertilizes the ovum and begets offspring: opposed to female”.[20] Likewise, "female" is "designating or of the sex that produces ova and bears offspring: opposed to male." [21] This definition is narrow as it excludes impotent males and sterile women. Why must the courts control bodies that blur gender borders? Sex/gender is not black and white; The English language is rigid, and the thought patterns that form it are rigid, so that gender also becomes rigid. [22] The traditional interpretation of sex has resulted in denial of the status of “legal entity” to the eunuch. A person can exercise their rights and have obligations to perform only when they are recognized as legal entity. Since a foetus in the mother womb is not a person because it is not born, so it is not recognized as a legal entity and thus no rights are available to it. Denying legal status to eunuch who is human violates human rights of eunuch.
However it cannot be said that India do not recognised third sex. Eunuchs are part of Indian culture. An episode in the Ramayana talks about Hijras. In the story, Rama tells a tearful group of men and women, lamenting his banishment, to leave and return to the city. A group of people "who were not men and not women[23] did not know what to do and remained with him.[24] Rama rewarded the hijras for their loyalty by giving them the power to bless auspicious occasions such as marriage and childbirth through customary singing and dancing known as badhai.[25] It is lamenting that Indian court does not recognize a third sex.
The Criminal Tribes Act of 1871, An Act for the Registration of Criminal Tribes and Eunuchs,[26] eunuch was defined to include any impotent male[27]. But, now the court does not consider eunuch in the category of male too.
Our understanding of sex and gender must be expanded to include homosexual, transgendered (people who feel that their body sex differs from their feeling of which sex they belong to--------known as their gender identity------whether or not they have had or may plan to have “sex-reassignment surgery-known respect as post-operative and pre-operative transsexuals)[28], and intersexed individuals.
III. THE LAWS CONCERNING PERSONS
It is true that India do not recognize a third sex, because the word sex is constructed to mean only male and female. However, to say the least they are human beings they should be considered persons as well. Supreme Court has held in plethora of cases that person mean human being. All the persons have a legal entity i.e. they are capable of having rights and performing duties. It is important to examine here what is meant by legal entity.
There are two legal categories of persons: natural and juridical[29]. They are legal persons. They are all entities capable of being rights-and-duty-bearing units all entities recognized by the laws as capable of being parties to a legal relationship. Salmond said: ‘so far as legal theory is concerned, a person is any being whom the law regard as capable of rights and duties. Any being that is so capable is a person[30].
"Natural person" is the term used to refer to human beings' legal status’. So, all the persons who are born as human are natural persons. Certain legal rights adhere automatically upon birth, and the designation of "natural person" may be taken as shorthand for identifying entities that are entitled to the maximum protection under the law[31]. In jurisprudence, a natural person is a human being perceptible through the senses and subject to physical laws, as opposed to an artificial, legal or juristic person, i.e., an organization that the law treats for some purposes as if it were a person distinct from its members or owner. In contrast to "natural person," the designation "juridical person"[32] is used to refer to an entity that is not a human being, but for which society chooses to afford some of the same legal protections and rights as accorded natural persons.
In ancient system not all human being were granted legal personality. The case of the slave is too well known to need stressing. A monk who enters a monastery is regarded in some system as being ‘civilly dead’ and his property is distributed just as if death has in fact taken place. In modern times it is normal to grant legal personality to all human being. So, by the virtue of being human eunuchs are also legal entity.
The word person as defined in oxford dictionary means an individual human being.[33] But does Indian law grant them legal status? If being a human being, they are not recognized as legal entity, then it is gross violation of human rights as they will not only be deprived from exercising their fundamentals rights but also all others civil rights. To understand as to whether eunuch being human being has a legal entity, it is important to examine various provisions of law which defines what person means.
The word person as defined in IPC and General clause act means “Person shall include any company or association or body of individuals, whether incorporated or not.”[34] This definition clearly mentions that person include individual. In Banarsi Dass v. Wealth Tax Officer[35] Supreme Court held that the word individual occurring in Entry 86 of List-of Sch. VII cannot merely means individual human beings but is wide enough to comprehend individuals forming units like HUF. The word individual does not mean only human being and it includes juristic person like a Hindu Idol.[36] So, it can be correct to interpret that the word individual as used in definition of person in IPC and general clause act means all human being. In this case Supreme Court by using the word “merely means individual human being” clearly focused on one thing that it is but natural to consider all human being as person.
However, section 8 of IPC while defining gender states gender means “the pronoun “he” and it derivatives are used of any person, whether male or female.” The use of word whether “male or female after person” may be interpreted as the word person include only male and female. This section mentions that wherever the word he is used, it is used to indicate person, whether that person is male or female. But such an interpretation is not justifiable as it confine the word person to male-female binary. Eunuch being human beings is very well included in person.
The definition of ‘person’ as used in sec. 11 of IPC includes all human being. So, the word person as used in section 8 of IPC must also conform to a wider definition of person. Statutes are interpreted in a manner to avoid conflict. So, narrow interpretation of section 8 of IPC will not be in conformity with sec. 11 of IPC. To understand whether person include male female and third sex, one has to consider sec. 8 and sec. 11 together. However the courts in India have given a narrow interpretation of sec. 8 which is not in conformity with the intention of the legislature.
It is true that if any crime is committed by eunuch they are punished for it. So, to award the punishment, courts sometimes consider eunuch as male and sometimes as female and accordingly punishments are given to them. Every person has to pay for the crime done by him.
Any section in IPC which provides that a person can be punished for committing certain offence will certainly include in its ambit eunuchs as well. Therefore they can be punished if they commit murder. However, if the section of IPC uses the word ‘he’ or ‘she’ instead of person, eunuch can not be covered under such terms and thus they can escape punishment. So, in the interest of justice it is important to interpret the word ‘he’ of IPC to include male, female and third sex too. But where the word specifically mention ‘she’, it consider only female. Because, in section 8 of IPC, it is provided that the word he include she and not the word she include he. So, there is no need to include eunuch sometimes as male and sometimes as female. Law need to be certain and Court will have to take a single stand on the sex to which the eunuch belong.
Though eunuch can not escape punishment for the act of crime done by them but they are deprived of all the rights which are available to the other two sexes. The narrow interpretation of the word sex by the Indian courts is not only contrary to the legislative intention but it has also segregated an important part of Indian society from rest of the group.
It is certainly true that there is no express definition of "person" in the Constitution, nor has the Supreme Court proffered one. Moreover, different state and federal statutes define "person" differently, depending on their goal.[37] But in case, of Shiv Prashad v. Punjab State[38] while dealing with article 14 of the constitution, the court held that the natural and obvious meaning of the expression ‘person’ is a living human being, a man, woman or child, an individual of the human race. As used in law the word includes natural persons and artificial persons like corporations and joint stock companies, but it does not include a State or Government. So, it is very clear that the word person as used in the constitution of India is used in broader sense.
As mentioned earlier every act defines person on the basis of object it sought to achieve. Similarly when we consider constitution of India, the word person used there should conform to the objective it sought to achieve. The objective of the constitution of India is to conform on its people the human rights. It is the protector of human rights. So, giving a narrow definition to the word person as used in the constitution is to undermine the spirit of the constitution. It will defeat the very purpose of the constitution. So, legal category of natural persons includes all human beings once they are born.[39]
Constitution of India prohibits discrimination on the basis of sex.[40] If sex includes only male and female ; the eunuch can not exercise their constitutional rights. If the government is discriminating in their policies against eunuch, eunuch can not do anything. If they go to Supreme court or High court challenging any of this discrimination then Court will simply mention that since sex means only male and female and so the discrimination against a third sex is constitutionally not prohibited. If any law discriminates between male and female, it can be challenged. But, when this discrimination is against a third sex, it can not be challenged as eunuch is not recognized as a category of sex. However, such a decision is against human right of the eunuch.
IV.CIVIL LAWS CONCERNING EUNUCH IN INDIA
Eunuch faces problems because court recognizes only two sex-male and female. But the constitution of India provides that all the persons who has domicile in India shall be citizens of India.[41] So, eunuch is citizens of India. Citizenship act provides the definition of person in a very negative way. It states a person does not include any company or association or body of individuals, whether incorporated or not.[42] It does not means that the word person exclude eunuch. Hijras have been an integral part of Indian population since very early times. Being a human being and a person, these people are citizens of India. But the problem comes when sex becomes an essential part of identification. Official identity papers provide civil personhood. Identification on the basis of sex within the binaries of male and female is a crucial component of civil identity as required by the Indian state. The Indian court policy of recognizing only two sexes and refusing to recognize hijras as women, or as a third sex (if a hijra wants it), has deprived them at a stroke of several rights that Indian citizens take for granted. Among the instruments by which the Indian state defines civil personhood, sexual (gender) identity is a crucial and unavoidable category.
In north India there are instances of hijras standing for election and winning elections as MLAs, Mayors and Councilors. Hijra candidates are running for local, state, and national elections now that they are listed on the electoral rolls.[43] Hijras have formed their own political party, Jiti Jitai (translated as "We Have Already Won", which references the "sexual mystique" they wield); six hijras recently won local and state elections and four eunuch candidates ran in the 2004 election.[44] These elections however become vulnerable to legal challenge precisely because of the difference between the sex at birth (male) and the assumed gender identity (female). Thus in a recent case, the Madhya Pradesh High Court in 2003 upheld the order of an election tribunal which nullified the election of a hijra, Kamala Jaan, to the post of Mayor of Katni on the ground that it was a seat reserved for women and that Kamala, being a “male”, was not entitled to contest the seat. Similarly, the election of Asha Rani the mayor of Gorakhpur was annulled by the court on the ground that she was not biologically female. Lawyer Pratul Shandilya, who is arguing Kamala Jaan's case, said: "I have already filed the Special Leave Petition (SLP) before the Supreme Court, and the court has also granted leave in the petition."[45]
These decisions essentially imply that one cannot choose one’s sex and that one should remain within the sex into which one is born. Hijras are not allowed to stand in elections because they are not male or female but, no where it is written that a third sex cannot contest election. All the citizens of India have a right to give vote and to stand for the post. However, in the electoral rolls only two category of the sex is mention----male and female, which is unfair to the third sex of India.
The High Court verdict came despite a direction from the Election Commission (E.C.) in September 1994 that hijras can be registered in the electoral roles either as male or female depending on their statement at the time of enrolment. This direction was given by the E.C. after Shabnam, a hijra candidate from the Sihagpur Assembly constituency in Madhya Pradesh, wrote to the Chief Election Commissioner enquiring about which category hijras were classified under[46].
The fixing of sex at birth as the sex for all subsequent legal transactions means that a hijra who wishes to claim her legal sex as female while being born a male is unable to do so. Thus the binary classification of gender into male and female which does not recognize a third gender category turns the transgender status of hijras into that of a legal nonentity. It is a cruel paradox that while the transgender identity of hijras poses no problems to the operation of criminal law and its role in criminalizing hijra existence itself, the transgender identity becomes a stumbling block in accessing rights under civil law. Judicial decisions such as these could have a detrimental impact on the hijras' ability to gain political office in order to publicize and ameliorate the discrimination they and other minorities face[47].
But around the world, countries are beginning to recognise the rights of transgender people. In a landmark judgment (Christine Goodwin vs. the United Kingdom, 2002) the European Court of Human Rights declared that the U.K. government's failure to alter the birth certificates of transsexual people or to allow them to marry in their new gender role was a breach of the European Convention on Human Rights. It said that a test of biological factors could no longer be used to deny recognition legally to the change of gender that a transsexual had undergone. In New Zealand, in New Zealand Attorney General vs. the Family Court at Otahuhu (1994), the court upheld the principle that for purposes of marriage, transsexual people should be legally recognised in their re-assigned sex.
In Victoria, Australia, the Equal Opportunity (Gender Identity and Sexual Orientation) Bill, debated and amended in the State Assembly in 2000, has laid down a comprehensive definition of gender identity by incorporating various social and cultural factors that shape a person's gender and sexual identity. The International Bill of Gender Rights, adopted in 1995, provides for the right to define and express freely one's gender identity, and is therefore a model for progressive legislative change.
While there is a need within Indian society to reserve posts for women, hijras should be considered for similar political treatment or be permitted to take a small percentage of these posts, as it is doubtful that they will be elected in large enough numbers to dilute female representation in government[48]. Based on their own experiences of discrimination, the hijras' platform champions the rights of India's other poor and exploited citizens.[49] However, two elections initially won by hijras have been nullified by courts who ruled that the candidates were men and could not therefore take posts that were reserved for women.[50] This verdict of the court is based on the traditional approach to the word ‘sex’ which is confined to male female binary. Eunuch is not biologically male or female. Male and female as determined in India is based on once external gentiles. So, the courts judgment that eunuch being male is not supposed to contest election from the post which is reserved for women. But going by the objective criterion to determine as to whether a person is male, law consider the external genital and eunuch is not male as they do not have penis or they have very small penis. They are not biologically women. So, the court should recognize them as a third sex.
If the court is not accepting eunuch as a third sex, neither are they considering them under a male or female binary then court is denying the basic human right to the eunuch. It is depriving eunuch from exercising all the fundamental rights and constitutional rights which they should enjoy being a person.
It is high time that court should accept that sex include third sex too. The identity of a person is very important as per the rights of the person is concerned. Courts have no authority to exclude third sex from the definition of sex. Constructing sex in male female binary makes eunuch as a non legal entity which is unjustified.
V. INDIAN CONSTITUTION AND RECOGNISATION OF EUNUCH
Article 14 has two limbs: the State is not to deny to any person (i) equality before law and (ii) equal protection of laws. The expression equality before law, means, broadly, that except in a very limited class of cases[51], a court administering justice is not concerned with the status or position of the parties appearing before it; ‘the law is no respecter of persons.[52] As mentioned in earlier chapters, ‘person’ in the constitution of India, include eunuch. So, they are eligible to have certain rights which a person should have. Any rights which are available to males and females and not to eunuchs become violative of Article 14 of the Indian constitution. Article 14 provides that there must be a reasonable classification when the law distinguishes between groups. There must be a nexus between the object which the legislation sought to achieve the classification done. So, any law which distinguishes between ‘male, female’ and ‘eunuch’ violates the equality clause of the constitution of constitution.
While the Indian Constitution has an equal protection clause that prohibits all type of discrimination this guarantee has not barred the State's discriminatory practices, possibly because the equal protection clause does not prohibit discrimination on the basis of sexual orientation or gender identity[53]. For example, in the electoral context, one writer has noted that the hijras have been excluded from the polls in spite of the equal protection guarantee because even if there had not been a blanket ban on participation, "most [hijras] were overlooked in the counting," or had to identify as male "against their wishes" in order to exercise their rights, or "were too embarrassed to go to the voting booths where derisive questions would be raised about their sexual identity."[54]
Constitution of India has always used the word ‘sex’ and not ‘gender’. While the word ‘gender’ as defined in IPC is very narrow. Gender is mutable and determined by dress and behavior that identify the individual as male or female within the individual's society. But in the constitution of India, nowhere the word gender has been used. Article 15, 16 specifically mention that state should not discriminate only on the ground of caste, race, sex, place of birth or any of them. Since sex is constructed to mean only male and female, so eunuch are denied protection under this clause.
Finally, the hijra identity is being recognized in an unexpected location: on Indian passports. As an alternative to choosing to identify as male or female, hijras now have the option of writing "E" for eunuch. [55] The "E" designation is noteworthy because it allows the individual to self-identify outside the male-female binary. The passport application does not require detailed proof to request the "E" status; it is as simple as checking the box. Concurrent with the creation of the "E" option, the Ministry of External Affairs is allowing individuals to change the sex on their passport with a sworn affidavit and medical certification. [56] An "E" or third gender identity option on the passport is an important first step in state recognition of the hijra identity and should be applied to other state forms of identification to ensure inclusion.
Article 21 of the Indian Constitution provides right to life and personal liberty. This right is available to all the persons whether they are foreigners or citizens of India. So, how can this right denied to eunuch who has been a part of Indian society since ages.
In Francis Coralie[57] case while discussion the meaning of word life, Supreme Court held that right to life include right to live with human dignity and all that goes along with it, viz, the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading and writing and expressing oneself in diverse forms, freely moving about and mixing and mingling with fellow human beings. So, if eunuchs are denied there right to stand in elections are right to give votes than it is clear violation of article 21 of the Indian constitution. They too have the right to live with human dignity which is free from exploitation.
Further Article 21 of the Indian constitution provides that right to health and Medical care is a fundamental right.[58] Given the individual's right to define one's own gender identity, and the right to change one's own body as a means of expressing a self-defined gender identity, no individual should be denied access to competent medical or other professional care on the basis of the individual's chromosomal sex, genitalia, assigned birth sex, or initial gender role. Therefore, individuals shall not be denied the right to competent medical or other professional care when changing their bodies cosmetically, chemically, or surgically, on the basis of chromosomal sex, genitalia, assigned birth sex, or initial gender role. If a eunuch goes for a sex change operation, they become a matter of joke. It is doubtful that they will get proper medical care if they have to undergo a sex change operation. It is so because India does not recognize sex change operation.
VI. INTERNATIONAL BILL OF GENDERED RIGHTS
There is a model for such statutory reform: the International Bill of Gender Rights (IBGR).[59]This bill has not yet been enacted as binding law in any jurisdiction.[60] Drafted in 1993 and adopted in 1995 by the International Conference on Transgender Law and Employment Policy, the IBGR grants ten rights, beginning with the right to define gender identity. The bill expresses the viewpoint that gender is "ever-unfolding" and therefore:
All human beings have the right to define their own gender identity regardless of chromosomal sex, genitalia, assigned birth sex, or initial gender role, and further, no individual shall be denied Human or Civil Rights by virtue of a self-defined gender identity which is not in accord with chromosomal sex, genitalia, assigned birth sex, or initial gender role.[61]
The bill additionally guarantees the right to secure and retain employment; the right to control and change one's body to express self-defined gender identity; the right to competent medical care when changing one's body; the right to enter into marriage contracts regardless of an individual's or an individual's partner's assigned birth sex; and the right to conceive, bear, or adopt children.[62]
While the sweeping IBGR may not be enacted anywhere in the near future, it is inspiring local governments to enact laws that will protect intersexed people. In 1995, San Francisco recognized "gender identity" as a protected class in its nondiscrimination ordinance, targeted at accommodating all individuals and prohibiting gender discrimination in employment, housing, and public facilities.[63] In the introduction to the ordinance, the drafters state that "a person's gender identity is that person's sense of self regarding characteristics labeled as masculine, feminine, both or neither. An individual determines their own gender identity and the sole proof of a person's gender identity is that person's statement or expression of their self identification.[64] This view, which validates an individual's self-gender identity and recognizes a gender identity beyond the male-female binary, will protect intersexed individuals.
At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life[65]. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.[66]
What is closer to the "heart of liberty" and more "central to personal dignity and autonomy" than an individual's chosen gender identity - to be granted full legal rights and protection against discrimination even if one does not fall into one of two neat societal boxes labeled male or female.[67] Undoubtedly, the right to identify beyond the fixed male-female gender binary should not be tainted by state compulsion.
The societal belief that sex is a male-female binary fixed at birth leads to human rights abuses for individuals, particularly males, who do not conform to this model, whether this nonconformity is caused by biology, as for intersexed infants in the United States, or choice and biology, as for the hijras in India. To end the discrimination caused by this expectation, countries should allow for self-identification as male, female, or a third gender.
VII. CONCLUSION
Cultural essentialism (a stagnant, exclusive understanding of culture) is being deployed by those in a position of power and dominance to legitimate dominant sexual ideology. It is used to delegitimize those who are trying to challenge dominant sexual ideology and cultural authenticity. Cultural essentialism weaves a cultural tale based on a notion of oneness, of one culture that is fixed and timeless.
Eunuchs are natural person and they are legal entity too. It is high time that court should recognize ‘third sex’. Judiciary should interpret sex as including third sex. Judiciary is regarded as protector of human rights. By giving the narrow definition of ‘sex’ they are denying human rights to eunuch. Something which holds good in a particular time is not good for all the times to come. Judiciary should address the new change which is taking place in the society. Also there is no reasonable basis to deny the status of legal entity to the eunuch.
VIII. RECOMMENDATIONS
Legal Measures
1. Comprehensive civil rights legislation should be enacted to offer eunuch the same protection and rights now guaranteed to others on the basis of sex, caste, creed and color. A clause may be included where ever the word person is defined to include third sex.
2. Courts must interpret sex as including male female and eunuch.
2. Laws should be made to punish the person who discriminates on the basis of their gender identity.
3. A comprehensive sexual assault law should be enacted applying to all persons irrespective of their sexual orientation and marital status.
4. Civil rights under law such as the right to get a ration card, make a will, inherit property and adopt children must be available to all regardless of change in gender/sex identities.
5. Right to marry is a fundamental right of the people[68] so; laws must be made regarding the marriages of eunuch.
6. In the voter’s identity card, one category of eunuch can be added other than male and female .
Interventions by Civil Society
1. We the people can make difference. Eunuchs are not the victim of biasness from the side of government but also from the side of people. So, we must also accept them. Our attitude towards them must be positive.
2. A comprehensive sex-education program should be included as part of the school curricula that alters the heterosexist bias in education and provides judgment-free information and fosters a liberal outlook with regard to matters of sexuality, including orientation, identity and behavior of all sexualities.
3. The Press Council of India and other watchdog institutions of various popular media (including film, video and TV) should issue guidelines to ensure sensitive and respectful treatment of these issues.[69]
[1] Kate Haas, Who Will Make Room for the Intersexed?, 30 Am. J.L. & Med. 41, 41 (2004).
[2] Peoples' Union for Civil Liberties, Karnataka, Human Rights Violations Against the Transgender Community 17 (2003), available at http:// ai.eecs.umich.edu/people/conway/TS/PUCL/PUCL%20Report.pdf [hereinafter PUCL Report].
[3] http://www.countercurrents.org/gen-narrain141003.htm
[4] The American Heritage Dictionary of the English Language 613 (4th ed. 2000). The word comes from the Greek word "eunoukhos," which is a combination of "bed" and "to keep." Id.
[5] Joseph t. Bockrath, law at the margin: bhartia hijro ka dharma: the code of india's hijra, 27 legal stud. Forum 83, 2003
[6] Jonathan Karp, And She's a Eunuch: Ms. Nehru Goes Far in Indian Politics, Wall St. J., Sept. 24, 1998, at A1. See also Eunuch MP Takes Seat, BBC News Online, Mar. 6, 2000, at http://news.bbc.co.uk/2/hi/south<uscore>asia/668042.stm (estimating 500,000 hijras live in India).
[7] Jennifer Rellis, 14 Mich. J. Gender & L. 223, Michigan Journal of Gender & Law School
[8] Peoples' Union for Civil Liberties, Karnataka, Human Rights Violations Against the Transgender Community 17 (2003), available at http:// ai.eecs.umich.edu/people/conway/TS/PUCL/PUCL%20Report.pdf [hereinafter PUCL Report].
[9] Ibid.
[10] Serena Nanda, Neither Man nor Woman: The Hijras of India 13 (2nd. ed. 1999).
[11] Ibid at p. 15.
[12] Id at p. 17.
[13] . Julie A. Greenberg, Defining Male and Female: Intersexuality and the Collision between Law and Biology, 41 Ariz. L. Rev. 265, 271, 274 (1999).
[14] Id. at 271-273.
[15] Id.; Phyllis Randolph Frye, The International Bill of Gender Rights vs. the Cider House Rules: Transgenders Struggle with the Courts over What Clothing They Are Allowed to Wear on the Job, Which Restroom They Are Allowed to Use on the Job, Their Right to Marry, and the Very Definition of Their Sex, 7 Wm. & Mary J. Women & L. 133, 169 (2000).
[16] Id at 278.
[17] See Norman Spack, Transgenderism, Lahey Clinic (2005), http://www.lahey.org/NewsPubs/Publications/Ethics/JournalFall2005/Journal&uscore ;Fall2005_Feature.asp; see also Megan Bell, Note, Transsexuals and the Law, 98 Nw. U.L. Rev. 1709, 1752 (2004) at p. 1720.
[18] Id.
[19] Jennifer Rellis, : "Please write "E' in this box" Toward Self-Identification and Recognition of a Third Gender: Approaches in the United States and India, 14 Mich. J. Gender & L. 223, 2008at p.251.
[20] . See 42 P.3d 120, 135 (Kan. 2002) (citing Webster's New Twentieth Century Dictionary (2d ed. 1970)).
[21] Id.
[22] Leslie Feinberg: Making History from Joan of Arc to Rupaul, Transgender Warriors 27 (1996).
[23] Jennifer Rellis,"Please write "E' in this box" Toward Self-Identification and Recognition of a Third Gender: Approaches in the United States and India,14 Mich. J. Gender & L. 223,2008.p.228.
[24] Id
[25] id
[26] Act. No. XXVII of 1871. Passed by the Governor General of India in Council, 12 October 1871. See also Valdes, supra note 1, for a thorough analysis of U.S. law regarding transsexual issues including applicability of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et. seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et. seq.
[27] Id. at Sec. 24(b).
[28] See e.g Holly Devor, FTM: Female to Male Transexuals (Bloomington, IN: Indiana University Press, 1997);and Bernice Hausan, Changing Sex: Transsexualism, Technology and Idea of Gender (Durham, NC:Duke University Press, 1995).
[29] Paton, Jurisprudence Page 373.
[30] Salmond, jurisprudence, 12th ed., p. 299.
[31] Ibid.
[32] Juridical persons are also referred to as "artificial," "juristic," and "fictitious/fictional" persons. See Trs. of Dartmouth Coll. v. Woodward, 17 U.S. (4 Wheat) 518, 636 (1819) ("corporation is an artificial being"); Sanford A. Schane, The Corporation Is a Person: The Language of a Legal Fiction, 61 Tul. L. Rev. 563, 563-65 (1987) (referring to corporations as fictional persons).
[33] Compact Oxford Dictionary Dictionary, Thesaurus & Wordpower Guide, New York, 2001, p.659.
[34] IPC (45 of 1860), S. 11; general clause act (10 of 1897)sec.3(42).
[35] AIR 1965 SC 1387 at p. 1392
[36] Jogender Nath Naskar v. V.I.T. Calcutta, AIR 1969 SC 1093.
[37] Section 2(j) and Explanation I to the First Schedule of the Andhra Pradesh Tax on Professions, Trades, Callings and Employments Act, 1987; Representaion of People’s Act (43 of 1950), sec. 2(g); sec. 44(d) of Indian Partnership Act (9 of 1932); gift tax Act (18 0f 1958), Sec.2(xvii); Income Tax Act (43 of 1961), sec. 2(31); Patent Act (39 of 1970), sec. 2(s); National Security Act (65 o 1980), sec. 2 (d); Standard of Weights and Measures Act (60 of 1976), sec. 2(q); Consumer Protection Act (68 of 1986) sec. 2; Voluntary Deposits (immunities and Exemptions) Act (47 of 1991), Sec. 2(d); Cable television Networks (regulation), Act (7 of 1995), sec. 2 (e); Foreign Exchange Management Act (42 of 1999), S. 2(4); Competition Act, 2002 (12 of 2003), sec. 2(1); finance Act (no.2) (21 of 1998), sec.87(k); Companies Act, 2002 (12 of 2003), sec. 2(1); Prevetion of Money-laundering Act (15 of 2003) sec. 2(s)
[38] AIR 1957 Punj 150, 151.
[39] See Roe v. Wade, 410 U.S. 113, 158 (1972).
[40] Article 15 and 16.
[41] Article 5 of the constitution.
[42] Citizenship act (57 of 1955) sec. 2(f).
[43] SUPRA N. 3
[44] Paul Watson, Offering India's Voters a Unique Perspective, Los Angeles Times, May 9, 2004 at A3; Eunuchs and Homosexuals Protest for Basic Rights in Bangalore, Hindustan Times, Mar. 31, 2006.
[45] PUCL Report.
[46] Being A Eunuch, Siddarth Narrain, Frontline,14 October,2003
[47] Supra note 3, p.234.
[48] Id
[49] id
[50] PUCL Report, supra note 13, at 51.
[51] E.g public servants cannot be prosecuted for certain offences without the sanction of appropriate government, see sec. 164 of I.P.C read with sec. 197, CrPc.
[52] H.M Seervai, Constitutional Law of india, 4th ed, vol 1, universal law publishing house,2008, p.438.
[53] 14 Mich. J. Gender & L. 223, *
[54] M, F, E or More?, The Telegraph, Mar. 12, 2005.
[55] Passport Information Booklet 2, available at http://www.and.nic.in/passport.pdf.
[56] Passport Information Booklet, supra note 60, at 11.
[57] Francis Coralie Administrator, Union Territory of Delhi,AIR 1981 SC 746
[58] Consumer Education and Research Centre v.Union of India 1995 3SCC 42.
[59] Phyllis Randolph Frye, The International Bill of Gender Rights vs. the Cider House Rules: Transgenders Struggle with the Courts over What Clothing They Are Allowed to Wear on the Job, Which Restroom They Are Allowed to Use on the Job, Their Right to Marry, and the Very Definition of Their Sex, 7 Wm. & Mary J. Women & L. 133, 169 (2000).
[60] Attempts to introduce an Equal Opportunity (Sexuality and Gender Identity Discrimination) Bill in Australia failed. See Australian Democrats, http:// www.democrats.org.au/campaigns/sexuality (last visited Sept. 9, 2007).
[61] Supra note 59.
[62] Id., app. B
[63] San Francisco Human Rights Comm'n, Compliance Guidelines to Prohibit Gender Identity Discrimination (Dec. 10, 2003), available at http:// ww.ci.sf.ca.us/site/sfhumanrights_page.asp?id=6274.
[64] ID.
[65] Jennifer Rellis, "Please write "E' in this box" Toward Self-Identification and Recognition of a Third Gender: Approaches in the United States and India, 14 Mich. J. Gender & L. 223, p. 227.
[66] Lawrence v. Texas, 539 U.S. 558 (2003).
[67] One court has recognized that requiring proof of sex before being allowed to use bathrooms segregated by sex could implicate the fundamental right to privacy. Kastl v. Maricopa County Cmty. College Dist., No. 02-1531, 2004 U.S. Dist. LEXIS 29825 at 19-23 (D. Ariz. June 2, 2004).
[68] Included in article 21 of the constitution of India.
[69] Human Rights Violations against the Transgender Community: A PUCL Report, jan 2004, Do get in touch with Ramdas Rao (ramdas_rao@hotmail.com) or Arvind Narrain (anarrain@yahoo.co.in) about feedback.