The third gender is not a new gender. It is a provision for transgender people to identify themselves as transgender on all paperwork and documents. It applies to transmen, transwomen and hijras, albeit without separate categories for each trans identity.
Although a third gender option has existed for a long time, when applying for a variety of official identity cards, such as the ration card or a passport, with its landmark 2014 ruling, the Supreme Court reaffirmed the fundamental rights of the transgender people under the Indian constitution, providing much needed support to transgender people in their fight for equal rights.
The court also directed the government to grant the members of the third gender community, reservations in educational institutions and public appointments. In a highly empathetic ruling, the judges also urged the authorities to take active steps to reduce the stigma around the third gender.
No. The third gender concept applies to only gender identity (that is whether one identifies themselves as male, female or transgender) and not sexual orientation (and so not for lesbian, gays or bisexuals. LGB people can identify themselves as male, female or transgender and thus do not need a separate category as far as gender is concerned.
Due to lack of clarity on the matter, two years after the original ruling – in 2016 – the Supreme Court issued a clarification saying that only transgender people are included under the third gender.
There is no test. The court has left the decision to the individuals. Anyone who wishes to be identified as the third gender can choose to do so. Furthermore, transgender people do not have to undergo a sex reassignment surgery or a hormone replacement therapy (that is, physically convert themselves to the gender they identify with) to use the third gender category. The gender is to be based on what the persons feel they are.
The infamous Section 377 of the Indian Penal Code, that makes ‘unnatural sex’ (anything other than the peno-vaginal sex but mostly focused on anal sex), has no link or bearing with the third gender concept. Section 377 applies to all individuals – homosexuals or heterosexuals, if they engage in ‘unnatural sex’. Although, the provision has mostly been used to harass homosexual people.
The implementation of the landmark 2014 ruling has been a mixed bag. In 2016, the Supreme Court of India slammed the government for repeatedly seeking clarifications on how to identify the third gender leading to delay in implementation of the ruling. Although, there have been some positive developments already. In March 2016, the Bihar government announced reservation for the third gender in government jobs.
However, the ruling is yet to be fully applied by all public and private institutions and so we still come across many official documents that do not have a provision for the people to identify as a third gender. And then other battles remain, including the one for transgender people to either have public separate toilets or their right to use the toilet for the gender they identify with.