The process is as universal as it gets: when a baby is born, a doctor, parent, or birth attendant announces the arrival of a “girl” or “boy.” That split-second assignment dictates multiple aspects of our lives. It is also something that most of us never question.
But some people’s gender evolves differently, and might not fit rigid traditional notions of female or male.
That should have no bearing on whether someone can enjoy fundamental rights. But for transgender people it does—to a humiliating, violent, and sometimes lethal degree.
As researchers on lesbian, gay, bisexual and transgender (LGBT) rights, we document countess cases of violence and discrimination against transgender people, whose very existence is outlawed in parts of the world. In Malaysia, state religious officials arrest trans people for the simple act of walking down the street wearing clothing deemed inappropriate to their assigned sex. Similar arrests have been made in Indonesia, Nigeria, Kuwait, the United Arab Emirates, and Saudi Arabia. Police have arrested trans people in Malawi, Uganda, Tanzania and Zambia under laws that criminalize same-sex conduct.
Trans people are murdered at shockingly high rates, most notably in Latin America and the United States. Systematic marginalization contributes to high rates of suicide and HIV.
Despite this litany of rights violations, trans people have made tremendous strides in recent years toward achieving legal gender recognition—a crucial step toward curbing abuses.
The concept of a right to legal gender recognition—in other words, that everyone should be able to have documents marked with the gender with which they identify—has only recently gained traction. Many countries don’t allow people to change the gender designation on their documents at all. Others set stringent conditions for those who wish to do so.
Absent legal recognition in the gender with which they identify, every juncture of daily life when documents are requested or appearance is scrutinized becomes fraught with potential for violence and humiliation.
A trans woman in Malaysia told us that because she must present a male ID card at job interviews, the interviews inevitably dissolve into interrogations about her breasts. In Uganda, a trans man reported that a doctor threatened to call the police after realizing his appearance did not match his legal gender.
A trans man in Kazakhstan described his routine treatment by airport security: “First, the guard looks at my documents and is confused; next he looks at me and asks what’s going on; then I tell him I’m transgender; then I show him my medical certificates; then he gathers his colleagues around, everyone he can find, and they all look and point and laugh at me and then eventually let me go.”
Even in countries that consider themselves beacons on LGBT rights, including some European and Latin American countries and the US, transgender people are still forced to undergo demeaning procedures to change their documents, including gender reassignment surgery, forced sterilization, psychiatric evaluation, lengthy waiting periods, and divorce.
But some governments are beginning to realize they should no longer serve as gender gatekeepers.
Argentina broke ground in 2012 with a law that is considered the gold standard for legal gender recognition. Anyone over 18 can choose their legal gender and revise official documents without judicial or medical approval. Children can do so with the consent of their legal representatives or through summary proceedings before a judge.
In the next three years, Colombia, Denmark, Ireland, and Malta eliminated significant barriers to legal gender recognition.
In parts of South Asia, activists have fought for recognition of a third gender category. A Nepal’s Supreme Court ruled in 2007 that the government must recognize a third gender based on an individual’s “self-feeling.” Similar developments followed in Pakistan, Bangladesh, and India.
Elsewhere, the very purpose of gender markers has been interrogated. New Zealand and Australia now offer the option of listing “unspecified” gender on official documents. The Dutch parliament has begun considering whether the government should record gender on identification documents at all.
In places where trans people’s very identities are criminalized, a future in which they may be legally recognized seems far off.
Yet it is precisely the persecution they face that lends urgency to the struggle for legal gender recognition. It highlights that states should not be in the business of regulating gender identities. Recognizing people’s self-identified gender does not require governments to acknowledge any new or special rights; instead, it is a commitment to the core idea that the state will not decide for people who they are.
To make this shift will require societies to recognize gender for what it is: a social construct.
Gender is deeply-felt by individuals; governments should not be in the businesss of adjudicating this identity through abusive protocols and bureaucratic snags. To alleviate this nightmare, governments should take some basic steps to separate legal and medical processes related to gender transition. That is to say, allow people to change their legal gender as an administrative process; and provide quality transition-related healthcare as a separate matter.
After making this procedural change, governments should adjust all relevant systems—including the multiple documents we carry in our daily lives, national databases such as the census, and any other gendered space ranging from restrooms to prisons. Dignity on paper must be ensured in practice as well.
Transgender activists have made great strides in making this vision a reality in some parts of the word, but too often, their struggle has been a lonely one. Mainstream human rights organizations and donors should recognize that legal gender recognition is a fundamental human right, and should throw their weight, and their resources, into its realization.
Achieving the right to legal gender recognition is crucial to the ability of trans people to leave behind a life of marginalization and enjoy a life of dignity. A simple shift toward allowing people autonomy to determine how their gender is expressed and recorded is gaining momentum. It is long overdue.
Neela Ghoshal is a senior researcher and Kyle Knight a researcher in the LGBT rights program at Human Rights Watch.
Third Gender: A Short History
From ancient Greece to modern Pakistan, the political and cultural emergence of a complex, controversial term.
By Jake Scobey-Thal|
Social convention says there are two types of people: male and female. And you know who’s who based on their genitalia. But in fact, various cultures have long recognized members who buck the biological binary. The ancients wrote of people who were neither men nor women; individuals have been swapping genders for centuries; and intellectuals have fiercely debated the connection between the body and the self. Today, there are many populations with alternative identities, such as hijras in South Asia, kathoeys in Thailand, and muxes in Mexico. Yet these groups haven’t had it easy, often facing discrimination and violence. Only recently has the fight for legal recognition — and respect — of "third gender" begun to bear fruit, thanks to pioneering activists and policymakers. The world, it seems, is slowly embracing an adage once restricted to liberal universities: Gender is a construct, and people should be able to define it for themselves.
Greek philosopher Plato writes Symposium, in which men at a drinking party philosophize about the nature of love. Aristophanes, a comic playwright, tells a story of creation in which "original human nature" includes a third sex. This sex "was a distinct kind, with a bodily shape and a name of its own, constituted by the union of the male and the female: but now only the word ‘androgynous’ is preserved, and that as a term of reproach."
Around 200 B.C.
The Manusmriti (Laws of Manu), which forms the basis of Hindu rules, says, "A male child is produced by a greater quantity of male seed, a female child by the prevalence of the female; if both are equal, a third-sex child or boy-and-girl twins are produced." But like many other early writings on human identity, the Manusmriti does not distinguish between biological traits and a person’s social role: The former determines the latter.
Genucius, a Roman slave and eunuch, is denied inheritance on the grounds, according to art historian Lynn Roller, of being "neither a man nor a woman." He is "not even allowed to plead his own case, lest the court be polluted by his obscene presence and corrupt voice." Eunuchs, typically castrated men, often hold trusted positions — such as servants or priests — but they are also treated as abnormal.
Sworn virgins emerge in Albanian communities in the Balkans. Known as burrneshas ("he-she"), the virgins are women who take oaths of celibacy and live as men in order to gain certain rights and privileges. For instance, after the death of a head of household and in the absence of male heirs, a woman could become a burrnesha to secure her family’s property and honor.
Karl Heinrich Ulrichs, a German thinker and writer, outlines a theory of homosexuality using "third sex" to categorize men attracted to other men. He also describes such a man as having "a female psyche confined in a male body." This theory competes with Charles Darwin’s writings on sexual selection, which assert that two sexes exist for the purpose of reproduction.
British administrators pass the Criminal Tribes Act in India, effectively outlawing the country’s hijras — a community that includes people born with both male and female biological traits (called "intersex" today), transgender people (those whose gender identity doesn’t match their sex assigned at birth), eunuchs, and even cross-dressers. Celebrated in sacred Indian texts, hijras had long been part of South Asian cultures, but colonial authorities viewed them as violating the social order.
Earl Lind (also known as Ralph Werther and Jennie June) publishes The Autobiography of an Androgyne, a memoir about coming to identify as "third sex." The book, still studied widely by scholars of gender and sexuality, describes the author’s life in New York City, sexual encounters with both men and women, and decision to undergo castration.
Christine Jorgensen, born George William Jorgensen in New York, completes sex-reassignment surgery in Denmark. Jorgensen, who served in the U.S. Army, gains national recognition as the first American widely known to have had the surgery. New York’s Daily News runs a front-page story with the headline, "Ex-GI Becomes Blonde Beauty." (The United States, however, legally recognizes only two genders; this remains the case today.)
Psychologist John Money popularizes the term "gender role." He controversially studies intersex children to understand how social and environmental factors, in addition to genetic and hormonal ones, help determine whether a person identifies as male or female. Money’s theories provide an important basis for efforts — spearheaded by the burgeoning feminist movement — to argue that gender is not simply a function of biology.
Endocrinologist Harry Benjamin, who treated Jorgensen, publishesThe Transsexual Phenomenon, with a "sex orientation scale" for men engaging in feminine behaviors. At one end are men who occasionally dress as women but don’t want to be female; at the other end are men who consider themselves female and urgently want reassignment surgery. "The dominant status of the genital organs for the determination of one’s sex," Benjamin writes, "has been shaken."
Mexicans in Oaxaca state establish Vela de las Intrepidas (Vigil of the Intrepids), a festival celebrating ambiguous gender identities. The Zapotec culture embraces a third-gender population called muxes: men who consider themselves women and others who don’t strictly identify one way or the other. Muxes trace back to pre-Columbian times, when there were "cross-dressing Aztec priests and Mayan gods who were male and female at the same time," according to the New York Times.
The American Psychiatric Association (APA) codifies "gender identity disorder," a condition in which there is a disparity between a person’s assigned sex and expressed gender identity. The diagnosis allows practitioners to justify hormone treatment, sex-reassignment surgery, and other care. But critics argue that categorizing certain gender identities as mental illness is discriminatory. (In 2012, the APA renames the condition "gender dysphoria.")
Iran’s supreme leader, Ayatollah Ruhollah Khomeini, issues a fatwa proclaiming no religious restriction on reassignment surgery, previously sanctioned only for intersex people. The ayatollah had been lobbied by transgender activist Maryam Khatoon Molkara. Today, Iran is a top destination for the surgery, but the trend has a dark underbelly: Many gay Iranians choose surgery to avoid persecution for homosexuality, which is still punishable by death. Iran does not recognize alternative genders.
Dec. 21, 2007
Nepal’s Supreme Court mandates that the government establish a third-gender category ("other") on citizenship documents. The ruling comes in an anti-discrimination case filed by Sunil Pant, Asia’s first openly gay federal-level politician and founder of the Blue Diamond Society, an NGO that works closely with transgender sex workers (long targets of police brutality in Nepal). Despite the ruling, third-gender people continue to report harassment. As of 2014, according to activists, only five individuals had officially registered as "other."
Dec. 23, 2009
Pakistan’s Supreme Court orders the creation of national identity cards on which hijras can identify as a distinct gender.
Sept. 15, 2011
The Australian government announces that passports will include a third-gender option. However, the new regime has limitations: Applicants wishing to select "X" as their gender must provide a letter from a medical professional confirming that they are intersex or do not identify with the sex assigned to them at birth. (Similarly, people wishing to change their gender — from, say, female to male — must provide a letter confirming that they are undergoing treatment for a gender transition.)
Nov. 1, 2013
Germany announces that it will allow parents to register newborns as indeterminate on birth certificates. The legislation is adopted to mitigate pressure to pursue immediate surgery for babies born with ambiguous physical features. A review by the German Ethics Council had revealed problems created by forced operations. "I will remain the patchwork created by doctors, bruised and scarred," one adult tells the BBC of surgery performed soon after birth.
Feb. 13, 2014
Facebook expands gender settings on user profiles. These include some 50 new options, including "cisgender" (someone who has a gender identity regularly associated with his or her biological sex), "neutrois" (someone who rejects a gender binary entirely), and — simply — "other."
April 15, 2014
India’s Supreme Court recognizes the right of people, including hijras, to identify as third gender. The ruling requires the government to establish quotas for third-gender people in employment and education, like those already in place for other minorities. The court states, "It is the right of every human being to choose their gender."
Illustration by Craig & Karl for FP
Tags: 207, Anthropology of an Idea, Default, Free, gender, In Box, Latin America, LGBT, North America, Sex, South Asia
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