The third path

The third path

Transgender people are winning more legal recognition and protection in Asia but discrimination in practice remains widespread.

Rooted in traditional norms and religious beliefs dating back centuries, our world has long accepted gender as a binary concept consisting of two identities: male and female. Thus, only those whose gender identities match their birth-sex enjoy fundamental human rights.

The reality, however, is that gender identity and expression is complex and multifaceted and goes far beyond biological factors. Legal recognition of non-binary gender status is a key component in full realisation of equality among lesbian, gay, bisexual, transgender and intersex (LGBTI) people.

"The majority of transgender people in Asia are unable to obtain self-determined official identification and are labelled according to the sex assigned at birth, making it impossible for them to carry on a normal life," Marli Gutierrez, communication officer for the Asia Pacific Transgender Network (APTN), told Asia Focus recently.

The dignity, self-worth and legal protection are severely compromised when their official identity documents do not match their appearance. They also face societal barriers to health care, education and employment, she said.

Human Rights Watch reported that the transgender people are 50 times more likely to acquire HIV than the population as a whole, in part because stigma and discrimination create barriers to accessing health services.

"Even when there is third-gender provision, it usually comes with restrictive or abusive eligibility criteria and procedural requirements such as gender-affirming surgeries," Ms Gutierrez said.

China, for instance, has clear laws and processes for amending name and gender markers on official documents, but they come with burdensome eligibility criteria.

Edmund Settle, regional policy adviser on HIV, human rights, law and sexual diversity for the United Nations Development Programme, said legal gender recognition in Asia shares one widely common trait: the lack of regulation.

"There are regulations in place, but they are largely restrictive, requiring the consent of third parties, the oversight of doctors, or a diagnosis with a mental illness," he said, adding that each of these requirements runs counter to the Universal Declaration of Human Rights.

"The eligibility criteria are still imposed through administrative practices including the requirement for evidence of gender-affirming surgeries in order to amend details on a passport."

Some hopeful signs are emerging, however. In 2014, the Vietnam National Assembly legalised sex reassignment surgery and granted the right to legal gender recognition for transgender people.

In South Asia, third-gender recognition is more prevalent as Hijras -- people who are neither completely male nor female -- are deeply embedded in social and religious traditions. In Bangladesh, India, Nepal and Pakistan, governments recognise a third gender on some official documents but implementation is still inconsistent.

In 2014, The Bangladesh cabinet declared legal recognition of a third gender but the absence of a clear definition and awareness leads to harassment, such as invasive physical examinations to qualify for an employment programme.

In India, the Supreme Court granted legal recognition to a third gender in 2014 but application remains inconsistent. In routine affairs including filing tax returns, there is still no option for third gender in the system. Also, the country still enforces a law that criminalise same-sex marriage.

In Nepal, the Supreme Court ordered the government to issue citizenship, passport and other official documents as per gender identity. A marriage equality law is being studied, as is treatment of LGBTI as natural persons under the law.

"However, the progress by courts and the constitution does not reflect in laws and policies and the implementation part is weak in Nepal," said Manisha Dhakal, deputy director of the Blue Diamond Society, an LGBT rights organisation in Nepal.

"Despite third-gender recognition, trans people in South Asia are still brutally marginalised, ostracised and alienated by the family and society," said Ms Gutierrez of APTN.

According to The Trans Murder Monitoring Project, which collects and analyses reports of transgender homicides worldwide, there were 1,731 murders of transgender people globally between 2007 and 2014 -- many were of a brutal nature, involving torture and mutilation.

"This causes them to turn into their own community with a 'guru' who provides them with emotional and financial security. It's like a new family for them," she said.

The vast majority of Hijras across South Asia have limited access to opportunities, education and human rights which leaves most mired in poverty, making a living through begging and sex work within their community.

Legal gender recognition alone, however, does not eliminate discrimination as transgender people are still not being inclusively recognised.

Many large organisations are doing a lot of work to end discrimination but changes in attitude do mot always filter down to the broader community. "Funding, resources and education will help bridge the gaps between legislative and societal acceptance in a sustainable way," said Ms Gutierrez.

In Pakistan, even though some positive legislation has been passed, public awareness is low and the law is not well understood. Violence will therefore continue, she added.

Thailand's Gender Equality Act, which came into effect in 2015, prohibits discrimination against a male, female or "a person who has a sexual expression different from that person's original sex". However, it specified an exception for cases involving "education, religion and the public interest", which has been criticised by rights groups.

The law was put to the test by Kath Khangpiboon, a transgender lecturer, who sued Thammasat University for denying her a position even after she passed the screening. She claimed discrimination against transgender people, but the university claimed unacceptable social media posts were the basis for its decision. She won her case this year and the university has decided not to appeal.


As the debate over third-gender recognition gathers momentum, Professor Heath Fogg Davis of Temple University in Philadelphia looks at the issue in a more liberal way.

"I see gender freedom as a fundamental human right," said Prof Davis, also the author of the 2017 book Beyond Trans: Does Gender Matter?

"Gender is so important to us personally that I believe we should be very careful about when, where and how we invoke it in laws and policies," he told Asia Focus. "No one should have the power to deny or regulate our sense of gender and how we wish to convey our gender in our bodies and lives."

In his view, the move to allow people to change the gender markers on government-issued identity documents such as driver's licences, passports and birth certificates is well intentioned, but it's a limited solution that goes only part way to gender freedom.

"Sex-identity discrimination is something that hurts a lot of people who don't necessarily identify as trans -- people who may appear or act in gender non-conforming ways, for whatever reason," he said.

He noted that sex-classification policy helps individuals who want to assimilate into the existing sex binary, but not everyone wants that. "Some people embrace both genders or reject the binary altogether," he said.

Prof Davis questions the very need to have gender markers in the first place.

"I think governments have a legitimate interest in collecting gender identity information about us, but they don't have a legitimate interest in our personal gender self-identification, and how it may change over time," he said.

One reason for the government to gather the data is to enforce gender equity laws; however, authorities are still unable to define the terms "sex" and or "gender" or justify why they need such information.

He also noted that if there is less policy emphasis and monitoring of gender, there will be positive social impact such as reduction in discrimination and less gender-based bullying in school.

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