A transgender person should have the option to choose either 'man', 'woman' or 'transgender' as well as have the right to choose any of the options independent of surgery/hormones, the Parliamentary Standing Committee on Social Justice and Empowerment, headed by the Chairperson Ramesh Bais has recommended in its 43rd report presented in the Loksabha.
The Transgender Persons (Protection of Rights) Bill, 2016, which seeks to define a transgender person and prohibit discrimination against them says, "Transgender community is one of the most marginalized communities in the country because they do not fit into the general categories of gender of male or female".
The Committee, in its historic report, has recommended that the Bill must recognize transgender persons' right to marriage, partnership, divorce and adoption, as governed by their personal laws or other relevant legislation.
Noting that the transgender community faces problems ranging from social exclusion to discrimination, lack of education facilities, unemployment, lack of medical facilities and so on; the report observes that the Constitution of India under Article 14 guarantees to all persons equality before law, Clauses (1) and (2) of Article 15 and Clause (2) of Article 16, inter alia prohibit in express terms discrimination on the ground only of sex and sub-clause (a) of Clause (1) of Article 19 ensures freedom of speech and expression to all citizens, yet the discrimination and atrocities against the transgender persons continue to take place.
The term 'eunuch' refers to only those people who wish to be treated as neither male nor female and embrace a lifestyle that is in conformity with their sexual divergence. This group does not include those intersex people who pretend to lead their lives as either males or females and embrace a normal lifestyle.
The eunuch, which has a recorded history of over 2,000 years, are ubiquitous in India, standing out in crowds throughout the length and breadth of the country. Intersexual people are not visibly distinguishable in the West. In marked contrast, eunuchs in the Indian subcontinent are found to dress and behave differently, in addition to living apart in bands and groups.
India and other South Asian countries are the only places where the tradition of eunuchs is prevalent today. According to a survey carried out by Salvation of Oppressed Eunuchs (SOOE), the number of eunuchs in India is around 19 lakhs approximately, as of March 1, 2011. However, as per Census of India 2011, the population of persons who has registered as 'others' as their gender (Neither male nor female) constitutes 4,87,803 only.
For most Indians today, eunuch are 'diabolic creatures', a source of eternal disgust and perennial fear. They are looked upon as hapless and strange creatures, bereft of sexual potency. This is evident from the way the word 'hijra' is used in the day-to-day conversations of people. It is often found being used to abuse people. Even dictionaries in Hindi define hijra in derogatory terms. The very utterance of the word carries with it an obvious sense of denigration. In India they are a stigmatised, socially marginalised and economically impoverished people.
Observing the trauma and fate of masculinisation faced by transsexual kids the Committee has recommended that a definition of 'discrimination' be included, in Chapter I of the Bill which must cover a range of violations that transgender persons face.
Fearing possibilities of any physical and sexual abuse of a Transgender child, the Committee recommend that "No child who is a transgender shall be separated from his or her parents or immediate family on the ground of being a transgender except on an order of a competent Court, in the interest of such child". However, it further said, "A Transgender Person, after becoming an adult may have his choice of residing anywhere."
The Committee further recommend that "Where any parent or a member of his immediate family is unable to take care of a transgender child or the child does not want to live with them, the competent court shall make every effort, if need be, by an order, to place such child with his or her extended family, or in the Community in a family setting or rehabilitation centre".
The committee has recommended that the District Magistrate shall issue a certificate of identity the gender of such person only as 'transgender'."
Earlier, the Supreme Court, vide its order dated 15th April, 2014, passed in the case of National Legal Services Authority vs. Union of India, inter alia, directed the Central Government and State Governments to take various steps for the welfare of transgender community and to treat them as a third gender for the purpose of safeguarding their rights under Part III of the Constitution and other laws made by the Parliament and the State Legislature".