Nepal recently reiterated its progressive approach to gender diversity and self-determination by allowing people to identify as the third gender in census forms. It is a move that is bound to have a positive impact on LGBTQ+ social inclusion and is one of the many ways in which South Asia adopts a forward-looking perspective on gender identity. This can be quite a surprising revelation for many living outside the region, given the high levels of homophobia and gendered social stigma. With most Western countries seeing a progression of rights where queer sexuality is often decriminalised before gender identity, South Asian history shows an excellent roadmap where the reverse has been true.
Modern-day South Asia’s approach to LGBTQ+ rights cannot be understood without paying attention to its past as a colonised territory. India, Pakistan, Bangladesh, Sri Lanka, and most of Myanmar and Nepal were under European colonial control at one point or another, including most of the territory being part of the British Empire. It was under British colonial rule that queer identities were first attacked – though it is important to note that terms such as queer, LGBTQ+ and third gender would not have been used at the time.
Attraction and intimacy between people of the same gender was outlawed under Section 377 of the colonial penal code in 1861, a ruling that was only recently removed in India and continues to be in play in Pakistan, Bangladesh and Sri Lanka. Gender diversity was a bit harder to challenge as, unlike the broad homosexual umbrella that was introduced in post-colonial Asia, many forms of non-binary genders already existed in the region.
In all of these cases, the gender expression and identity is not strictly male or female, with some of the communities (most notably the widely known Hijra) also providing a safe haven for intersex children. Due to the long-standing history and visibility of these identities – some even recognised in millennia-old spiritual texts – colonial authorities had a much harder time suppressing them. Although most were made legally deviant under the 1871 Criminal Tribes Act, intentionally categorised altogether as “eunuchs” in an attempt to erase their diversity, most communities continued to be recognised as their individual identities in their respective locales.
That said, suggesting that pre-colonial India was a haven for gender diverse groups would be a fallacy. While their identities were recognised, they were often on the receiving end of severe social stigma and abuse. The advent of industrialisation also saw the end of many traditional roles held by third gender communities, and many had to resort to begging and prostitution to survive. Many communities also traditionally self-segregated. This was initially done as a means to create safe spaces for their members but had the side effect of distancing them from wider social movements for acceptance and rights against colonial rule.
Post-colonial South Asia, therefore, was an unusual space for third gender communities in that they were historically recognised as distinct identities but were also facing severe and specific discrimination. The Criminal Tribes Act was repealed shortly after the formation of the modern nation states of India, Pakistan, Bangladesh, Sri Lanka and Nepal, but specific recognition and protection under the law occurred over various stages.
Nepal’s Supreme Court ruled in favour of the constitutional creation of a third gender identity in 2007, including acknowledging the need for specific protections from abuse and exploitation. India followed suit in 2014, explicitly stating that many gender identities need to be recognised as being neither male nor female. In a sign of how revolutionary these rulings were, both instances were cited by a Dutch district court in 2018 when arguing for non-binary recognition in Europe. Bangladesh and Pakistan have also formally recognised and partially protected third gender identities, with only Sri Lanka not having an official status for them beyond traditional community understandings, though local activists have been very vocal and visible in fighting to criminalise discrimination.
Job security is also something that is being tackled in the region. India has created special roles in public services exclusively for third gender individuals, including in hospitals and the police force. Bangladesh has seen third gender political candidates successfully run for office. Pakistan has seen third gender individuals hired in high profile news anchor positions as well as the creation of a dedicated retirement home for non-binary and transgender people. While none of this has erased the prevalence of social stigma, the positive impact of representation and visibility cannot be underestimated.
In this context, the decision by Nepal to include the third gender in the census and voter rolls (joining the ranks of India, Pakistan and Bangladesh) is less extraordinary and more overdue. What is important is that the implementation of said ruling is done in a respectful way. In Bangladesh, the celebration of legal recognition was tampered by the fact that many Hijra still have to undergo invasive medical examinations to “prove” their identity instead of relying on simple self-identification. India’s recent Transgender Persons (Protection of Rights) Bill has been criticised for the same reliance on biological essentialism, despite the fact that the law was framed as being an act of protection for the community.
The key takeaway in all of these cases is that success has always been a result of non-binary and gender diverse voices being allowed a platform to exercise their own agency and fight for their own needs, with the necessary support of allies. Unless that same level of self-worth is extended into the actual implementation of the laws themselves, the struggle for true equality continues, though thankfully headed in the right direction.
