Mini S. is a Professor of Law and Director of the Centre for Competition Law and Policy at the National University of Advanced Legal Studies (NUALS) in Cochin, India. She holds a Ph.D in Law from the School of Legal Studies, Cochin University of Science and Technology (CUSAT) for a study on issues relating to social security of labour in the era of globalisation. She taught at CUSAT in Cochin, the National Judicial Academy (Supreme Court of India) in Bhopal and the School of Law, Christ University (Deemed to be University u/S. 3 of UGC Act) in Bangalore before joining NUALS. Her research interests include human rights, labor and competition law. See her bio, linked here.
In 2021, she presented a paper with WWG Co-Founder, Pamela Katz, at the Midwest Political Science Association Annual Conference in Chicago, IL entitled Transgender Rights in India and the United States: A Comparative Approach. A portion of this paper, excerpted below, explores the historical and cultural background of gender distinctions and fluidity in India.
Historically speaking, ancient Indian culture and society displayed a great amount of acceptance to Hijras, a third gender community who never considered themselves male or female completely. They consisted of eunuchs, intersex people and transgender people and were known by different names such as Aravani, Aruvani, Jagappa, Chhakka, Kinnar, Kothis, Shiv-Shakthis etc. in different parts of India.
The recognition of a third gender can be seen in ancient scriptures and literature. Vedic culture recognized three genders: male, female and ‘tritiya prakriti’, the third gender. Kama Sutra mentioned the performance of fellatio by ‘tritiya prakriti’, feminine people of a third sex, which was interpreted as men who desired other men[1]. Indian texts that can trace back as early as 3000 years ago document a third gender, thus showing their existence in the subcontinent since ancient times.[2] Rigveda mentioned that, before creation, the world lacked all distinctions, including of sex and gender, a state ancient poets expressed with images like men with wombs or breasts.[3] Manu Smriti, the foremost dharma shastra, explained the biological origins of the three sexes: "A male child is produced by a greater quantity of male seed, a female child by the prevalence of the female; if both are equal, a third-sex child or boy and girl twins are produced; if either are weak or deficient in quantity, a failure of conception results”[4]. Mahabhaya, Patanjali's work on Sanskrit grammar also stated that Sanskrit's three grammatical genders are derived from three natural genders. Tolkappiyam, the earliest Tamil grammar, also referred to hermaphrodites as a third ‘neuter’ gender[5].
In the Hindu religious texts, stories of gender fluidity can be seen among gods as well as mortals. Hijras are devotees of Ardhanarisvara (pictured above)— the androgynous form of Shiva and his consort Parvathi —and Bahuchara Mata, a goddess associated with transexuality and eunuchism[6]. Regionally, other deities are also worshiped by transgender people.
In the epic poem, Mahabharata, Aravan is offered to be sacrificed to the Goddess Kali to ensure the victory of the Pandavas in the Kurukshetra war. He does not want to die a virgin, so the god Krishna agrees to take the form of a woman (named Mohini) and marry him. Aravan is the progenitor of hijras of Tamil Nadu: they call themselves Aravanis.[7] The Mahabharata also mentions a situation in which Arjun is sent into exile where he assumes an identity of a eunuch-transvestite, Brihannala, for a year and becomes a dance teacher to a princess[8]. Another important character, Shikhandi, is born female, but raised as a man and marries a woman. Shikhandi eventually becomes the reason for the death of the warrior Bhishma, who refuses to fight a ‘woman’[9].
In a Sanskrit epic, Ramayana, when Rama leaves Ayodhya for his 14-year exile, a crowd follows him into the forest because of their devotion to him. Rama notices this and tells all the ‘men and women’ to return to Ayodhya. When he returns to Ayodhya after 14 years, he finds that the hijras, being neither men nor women, have not moved from the place where he gave his speech. Impressed, Rama grants them the ability to bless people during auspicious occasions like childbirth and weddings[10]. This is considered to be the origin of tradition in which hijras sing, dance, and give blessings.
Other regional deities are associated with gender fluidity in different parts of India. Harihara, also called Ayyappa, is considered to be the incarnation of Shiva and Vishnu combined. Gadadhara, the incarnation of Radha in male form, is worshiped in many parts of Andhra Pradesh, Orissa and West Bengal. Yellamma is a goddess worshiped predominantly in Maharashtra and is connected with gender variance.[11] Mohini (mentioned above), the female avatar of the god Vishnu, and Vaikuntha Kamalaja, the androgynous form of Vishnu and his consort Lakshmi, can be added to this list.
Gender variance can also be observed in other Indian religions. The Buddhist Tipitaka (the traditional term for Buddhist scriptures composed about 2100 years ago), documents four gender categories: female, male, pandaka, and ubhatobyanjanaka.[12] It says that the Buddha was tolerant of monks transitioning to nuns. The Jains distinguish what they view as “biological sex and psychological gender and sexuality, which allowed the possibility of a biological male (dravyapuruṣa) need not necessarily be a male psychologically (bhāvapuruṣa)’, that is, endowed with male sexuality, but he may in fact experience female or third-sex sexuality, and the same will be true, mutatis mutandis, for the two other sexes as well."[13]
Transgender people played a crucial role in medieval India. They were called khawajasara, a term for eunuch in Islam. They were considered to be fiercely loyal and possessing strong acumen; they held high positions and enjoyed a life of privilege and proximity to the royalty[14]. Eunuchs had an important role to play in harem management during the Delhi Sultanate period (1206-1526 A.D.). Malik Kafur was a prominent eunuch slave-general of the Delhi Sultanate ruler Alauddin Khilji, who also served as the governor of Devagiri and Viceroy of Delhi[15].
During the Mughal era (1526-1761 A.D.), there are extensive references in historical accounts that depict khawajasaras participating in the political and administrative realms as well as often occupying the spaces of the harem and the bazaar. For example, during Akbar’s reign, khawajasaras were often assigned to guard the outside enclosure of harems [16]. The strategically located province of Gujurat was governed by Khwajasara Wafadar (the Loyal Eunuch) during the reign of Mughal emperor Jahangir and Khwajsara Khwaja Agah was appointed governor of Agra,[17].
British rule changed the picture. Many argue that colonial rule brought several injustices to the transgender community. British officials considered eunuchs ‘‘ungovernable'’ and full of “filth, disease, contagion and contamination.” They were portrayed as people who were “addicted to sex with men” and were not only a danger to “public morals,” but also a “threat to colonial political authority” [18}.
Before the British arrived, hijras were often given land and other special rights and benefits by Indian states, many had important roles in the public sphere and were treated with respect in royal courts. But the British could not understand why and quickly moved to reverse course by, among other things, revoking granted property rights, criminalizing hijra communities and denying their civil rights [19]. In 1861, the British introduced Section 377 in Indian Penal Code to make all penile-non-vaginal sexual acts between people illegal[20].
A short time later, several pieces of colonial legislation were passed in various parts of the country, which collectively became known as the Criminal Tribes Act of 1871.[21} This was a deliberate attempt to, among other things, reduce the number of hijras with the objective of gradually causing their ‘extinction’ by branding them as ‘habitual criminals’[22]. In Part II of the Act dealt specifically with and introduced the broad category of ‘eunuch’ to refer to gender non-conforming communities in India, including hijras, khwajasarais, kotis and all others who didn’t conform to traditional British ideals of masculinity[23]. Under the Act, traditional hijra activities like public dancing or dressing in women's clothing were banned and criminalized. The law armed the police with power of increased surveillance through a registration scheme and severely limited the rights of gender non-conforming communities by, for example, prohibiting a registered eunuch from making a gift or will, acting as a guardian to any minor, and adopting a son [24].
Transgender people’s lives in India after independence was also full of stigma and inequality. They faced discrimination in social, political and economic spheres during the British era and its effects continued even after independence. The Criminal Tribes Act, 1871 was repealed in 1952. However, the Indian Government passed a model Habitual Offenders Act that same year, which preserved most of the harms of the Criminal Tribes Act to hijras by tagging individual members of some tribes (including hijras) as habitual criminals. [25]
All these legislative interventions contributed to confusion in the minds of general public. Generation after generation, the traditional approach recognizing the non-binary nature of gender has faded away to some extent, but is still very much present. The British/colonial way of misunderstanding has created a shift in attitude of some people towards the transgender community in India, setting the stage for complicated policymaking challenges in India’s vibrant democracy.
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[1] 1883 Richard Burton translation, Chapter IX, Of the Auparishtaka or Mouth Congress, Kama Sutra,
[2] Barbara A. West, Encyclopedia of the Peoples of Asia and Oceania (2010, ISBN 1438119135), pp. 277-278
[3] Serena Nanda, ‘Gender Diversity’ (2014, ISBN 147861546X), p. 28
[4] M. Michel raj, ‘Historical Evolution of Transgender Community in India’, Asian Review of Social Sciences ISSN: 2249-6319 Vol. 4 No. 1, 2015, pp. 17-19.
[5] Supra
[6] Venkat, Vidya ‘Transgender persons are finally getting their due with the Tamil Nadu government announcing a welfare board for them’. Frontline. 25, February 2008.
[7] Narrain, Siddharth, ‘In a twilight world’, Frontline. 20 (21), October 2006. Click on this link for more about the Mahabharata.
[8] Nanda, Serena, ‘Hijra and Sadhin’. Constructing Sexualities. Ed. LaFont, S., New Jersey: Pearson Education, 2003. Print.
[9] Sorabji, Cornelia, and Warwick Goble, ‘Shikhandi: The Maiden-knight and Other Stories’. Bombay: Blackie and Son, 1916. Print.
[10] Joseph T. Bockrath, ‘Many, if not most, translations of Valmiki's Ramayana do not contain this reference.’, "Bhartia Hijro Ka Dharma: The Code of India's Hijra", Legal Studies Forum 83, 2003.
[11] "Hindu Deities and the Third Sex (1)". Gay & Lesbian Vaishnava Association. Retrieved 14 March 2016.
[12] Michael G. Peletz, ‘Gender Pluralism: Southeast Asia Since Early Modern Times’, 2009, ISBN 1135954895, p. 77
[13] Zwilling, Leonard; Sweet, Michael, ‘‘Like a City Ablaze': The Third Sex and the Creation of Sexuality in Jain Religious Literature’, Journal of the History of Sexuality. 6: 359, 375, January 1996
[14] Dona John, ‘Living a Life of Exclusion: Being a Transgender in India’, Focus Menschenrechte – Living a Life of Exclusion 09/17
[15] Kishori Saran Lal, ‘History of the Khaljis (1290-1320)’. Allahabad: The Indian Press, 1950.
[16] Adrija Roychowdhury, ‘When eunuchs were the mid-rung of power in the Mughal empire’, July 19, 2018
[17] Lubna Irfan, ‘’Third gender’ and ‘Service’ in Mughal Court and Harem’, Servants Pasts European Research Council Funded Project 2018
[18] Soutik Biswas, ‘How Britain tried to erase India’s third gender’, BBC News, 31 May 2019.
[19] M. Michelraj, ‘Historical Evolution of Transgender Community in India’, Asian Review of Social Sciences ISSN: 2249-6319 Vol. 4 No. 1, 2015, pp. 17-19.
[20] India Code Section 377, Unnatural Offenses.
[21]Jessica Hinchy, ‘Obscenity, Moral Contagion and Masculinity: Hijras in Public Space in Colonial North India’, Asian Studies Review; Vol. 38 2014
[22] Criminal Tribes Act of 1871.
[23] Shane Gannon, ‘Exclusion as Language and the Language of Exclusion: Tracing Regimes of Gender through Linguistic Representations of the ‘Eunuch’’. Journal of the History of Sexuality. 20 (1): 1–27, 2011. ISSN 1043-4070. See also, Khan, Shahnaz, ‘Trans Individuals and Normative Masculinity in British India and Contemporary Pakistan’. Hong Kong Law Journal. 46: 9–29, 2016.
[24] Criminal Tribes Act, supra, Part II, Secs 26-29.
[25] The Habitual Offenders Act has been repealed. See NHRC India
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