The Transgender Persons (Protection of Rights) Bill was passed by the Rajya Sabha on 26th November, 2019. It was earlier cleared by the Lok Sabha in August 2019.
The Bill has following provisions: 1. Non-discrimination against a Transgender Person in educational institutions, employment and healthcare services. 2. Recognition of identity of Transgender Persons and to confer upon them right to self-perceived gender identity. 3. Provision of right of Residence with parents and immediate family members. 4. Provision for formulation of welfare schemes and programmes for education, social security and health of Transgender Persons. 5. Provision for National Council for Transgender Persons to advise, monitor and evaluate measures for the protection of their rights.
Along with modern terminology and the debate that is going on it is also important to find out how Islam has dealt with the subject. Dr. Raziul Islam Nadvi, a well-known Islamic scholar and Secretary (Islami Muashra), Jamaat-e-Islami Hind, told Radiance, “In Islamic perspective there are only two genders, masculine and feminine genders, and there is no mention of any third gender. In the Qur’an also there is no mention of any third gender except male and female. The Qur’an also talks about pair (male-female). And all living creatures on earth are made up of pairs. The third gender which we are talking about (Transgender) where traits of both male and female are found is considered an abnormality.
“As per Islam, the transgender would be considered male or female, depending on the dominant character found in that individual. If male characters (organs) are dominant then he would be considered male (Mukhannas) and if female characters (organs) are dominant then she would be considered female (Khunsa) and not third gender. In some individuals we can find both male and female organs and from medical point of view it is said that one sexual organ remains active while the other one non-active. Medically it can be tested to find out which organ is active or not and the non-active part can be taken out through operation. And if there is any deformity in the active organ, it can be cured,” Nadvi added.
“Legal Islamic Scholars (fuqaha) have advocated fundamental rights and human values for them and to be treated humanely. It is the responsibility of the government to provide them with all the rights they deserve.
It is also said that because of their culture some individuals acquire their traits. During Prophet Muhammad’s regime also, they existed and used to come to the Prophet’s house to meet his wife. One day when the Prophet (ﷺ) was informed that such a person was using sex-oriented filthy language, the Prophet (ﷺ) advised his wife not to allow them to enter the house. Hazrat Umar had ordered them to be shifted to another separate locality. It is an administrative, social and human rights issue,” Dr Nadvi elaborated.
“The government can provide shelter in a different locality away from the normal living population if it is believed that their presence can be harmful for the society in any respect. But that does not mean they would be deprived of fundamental rights and values enshrined in the Constitution,” the Islamic scholar argued.
“The scholars have also talked in detail about the issue of inheritance and how to deal with it. Supposedly, if anyone has been categorised as Khunsa Musykil (whose identity as male or female is difficult to be ascertained). So long as the identity has not been established, the issue of inheritance should be kept on hold. There are many ways by which the dominant gender can be identified. For example, a child is born and it is not possible to ascertain his dominant gender then one has to see if the child urinates through male organ or female organ and it would be decided accordingly. Or when they grew up their identity would be decided on their visible and non-visible sexually dominant characteristics through medical examination,” he added.
“Keeping the transgender in isolation in a different locality to prevent any harm to the society is also like quarantine, which is a place where an individual is placed in isolation to prevent spread of infectious or contagious disease for some days. In the same manner, people are put up in jails to reform and rehabilitate. So, it won’t be correct to say why only transgenders are supposed to be kept in a separate location while others’ presence can also be harmful to the society. Even drug addicts are kept in isolation for some time to reform them. They all are kept away from society for some days in order to reform. It is for the government to decide whether it wants to reform them by keeping them away from the society or within the society. But under every circumstance they would not be deprived of their rights,” the learned scholar opined.
“By naming them as third gender as by ostracising them permanently may not be a good idea. The only difference between the modern world and the Islamic perspective is that in Islam they are not considered third gender but in the modern world they are considered transgender (third gender),” said Nadvi.