Third gender

The third gender: Everything you need to know

By Harish P Monday, July 30, 2018 - 10:56
Male or Female? We have been clicking these boxes forever on sarkaari and not-so-sarkaari forms. But there is now a brand new box that allows people, who do not think of themselves as male or female, to legally say so on all paperwork. Love Matters brings you all the facts on the third gender.
Who is it really meant for?

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.

Is this new?

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.

Are lesbian, gays and bisexual people also ‘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.

What’s the test for belonging to 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.

Is there a link between Section 377 and the third gender?

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.  

Why don’t we still have this provision on many forms?

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.

Do you have any questions on the third gender? Comment below or share with Love Matters (LM) on our Facebook page. If you have a specific question, please ask LM experts on our discussion forum.

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