The Washington PostDemocracy Dies in Darkness

India has outlawed homosexuality. But it’s better to be transgender there than in the U.S.

The gay rights movement in the United States has experienced historic successes in recent years. But progress in the associated transgender movement has lagged far behind.

Transgender women — or “hijras,” as they are called in South Asia — dance in the streets of Dhaka during a rally to mark the first ever nationwide program to observe ‘Hijra Day’ on Nov. 10. (AFP PHOTO/Munir uz Zaman/AFP/Getty Images)

The gay rights movement in the United States has experienced historic successes in recent years. Gay couples can marry legally in 36 states, and growing social acceptance is evident in the rising numbers of openly gay athletespoliticians, and billionaires. And yet, progress in the associated transgender movement has lagged far behind. Transgender women — those born biologically male, but who have female gender identity — are far more likely than other LGBT people to be the targets of harassment and violence, and the protections afforded to gay Americans are sometimes challenged when applied to transgender people.

There have been troubling examples of this recently. Last month, transgender teen Leelah Alcorn’s suicide note attracted national attention for bemoaning the lack of human rights for transgender people and calling on Americans to “fix society.” A couple of weeks later,Saks Fifth Avenue doubled down on its fight against a discrimination lawsuit brought by a former employee who said she was dismissed because she was transgender. The retailer argued that transgender people aren’t protected by the Civil Rights Act (it has since backtracked on that position).

The situation for transgender communities isn’t so dour everywhere. In their quest for acceptance, transgender people have found it in an unexpected place: socially conservative South Asia.  There, the Indian Supreme Court has deemed homosexuality a crime. But in a revolutionary ruling last year, the same justices extended legal rights and equality to transgender people. Not only that, they abolished the binary gender system, creating a protected third gender that covers not only transgender people, but also intersex (who have both male and female anatomy) and eunuchs (who have neither male nor female anatomy), often collectively called “hijra.” The change allows them to identify their gender as ‘hijra’ on all government documents, including passports. Governments in Nepal, Bangladesh, and even Pakistan have recognized a third gender category, as well.

Indians largely have embraced the third gender even before the legal rights were codified. Early last year, in the first official census count of the third gender, nearly a half million Indians identified as a member of the category (though activists insist the real number is at least four times larger). Even more surprising, 55,000 of third-gender people were under the age of 6, showing the comfort parents have in recognizing nontraditional gender identities in their children. Certainly, hijras and other members of the third gender are not free from harassment, discrimination and hardship in South Asia. Transgender people often live on the fringes of society in poverty and work in prostitution. But hijras also have a respected and storied history in India, and long have been prominent members of society. Their presence at births, marriages and other celebrations is seen as good luck. Some government jobs and colleges have set quotas for acceptance of hijras.

How is it that a society so restrictive in its views of sexuality, is so progressive in its approach to gender? And why has the United States developed in the opposite way? The explanation lies in the nations’ religious foundations.

Hinduism — practiced by 80 percent of Indians — has infused Indian culture with a mythological diversity that has normalized multiple gender identities. To provide support for its legal defense of the third gender, the Indian Supreme Court drew from ancient moral-philosophical classics of Hinduism.  In one cited epic, the Mahabharata, a prince’s death wish is to marry, but no one would accept the offer of a dying prince. And so Lord Krishna, a male deity, descends to earth in the form of a woman named Mohini to marry to him. This and other stories provide divine justification for transgenderism, even according them supernatural status.

In the epic Ramayana, when Lord Rama is banished from the kingdom, he tells all the “men and women” who follow him to return to the city. The hijras among his followers choose to stand by Lord Rama, arguing that his directive did not apply to them. For this, Lord Rama blesses them. The idea that the Hindu deities conferred special blessings to transgender people for their devotion continues to influence their role in Indian society.

Meanwhile, in the United States, the cultural and legal perception of gender is strictly binary. Here, we legalize identities based on oppositions, such as heterosexuality and homosexuality, but have a hard time imagining pluralistic gender categories. Take, for example, Kentucky’s proposed “Student Privacy Act,” which would ban transgender students from entering school restrooms and locker rooms that don’t correspond to their sex assigned at birth.

Judeo-Christian traditions form the foundation for this perspective. The biblical book of Genesis describes God’s creation of humanity succinctly: “male and female.” The Bible does not stray from that binary gender structure established by Adam and Eve, and the concept of marriage continued the divine design of the Judeo-Christian tradition. Though the legalization of gay marriage has not come to the United States easily, expanding the traditional notion of marriage to include same-sex couples did not upset the system much. The binary structure of marriage — two individuals each with one gender identity — has remained intact. Polygamy, for example, would be far more threatening to a Western culture grounded in Judeo-Christian structures.

The West can learn something here. In India, the intrinsic diversity of Hindu culture allowed for a flexibility of judicial review on the gender question. Cultural, social and political assumptions are more easily overturned — and new legal rights to protect minority groups are more easily born — when the system is not hampered by a binary structure. In this case, Hinduism equals diversity, and diversity has given way to the truer essence of democracy.

But of course, India has not been a universal beacon for minority-group freedoms. The infamous Supreme Court decision to effectively re-criminalize homosexuality created a human rights conundrum: Transgendered people cannot be fully protected if their gender identity becomes illegal when expressed in a sexual context. In other words, a transgender woman engaged in heterosexual relations with a man may be breaking the law under India’s ban on homosexual acts, if she is anatomically male.

To fully protect transgender groups, nations must both overcome binary gender constraints and de-couple gender identity with sexual orientation.  Society must imagine a plurality of genders and sexualities all with equal protections under the law. With this mindset, a new fundamental right emerges: the freedom to determine one’s own identity as inherently pluralistic.

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