Excerpt from an article by Neha Sood in the 2012 ARROW publication Reclaiming & Redefining Rights Thematic Studies Series 1 – Sexuality & Rights in Asia. Read it in full at http://arrow.org.my/wp-content/uploads/2015/04/Reclaiming-Redefining-Rights_-Thematic-Study_Sexuality-and-Rights-in-Asia_2012.pdf
“Sexuality is a critical and strategic frontier in which the possibilities of justice, democracy and secularism are at play.” Correa and Careaga, 2004
This study was commissioned to examine and report on issues related to sexuality in 12 Asian countries – Bangladesh, Cambodia, China, India, Indonesia, Lao PDR, Malaysia, Nepal, Pakistan, the Philippines, Thailand and Vietnam. This is significant because feminist theory and activism has not always examined or understood the links between gender and sexuality, and how these influence experiences of injustice and achievement of rights.
Sexuality is recognised, variably, in sections of civil society, United Nations’ institutions, donor agencies and governments to be a central aspect of personhood which affects all individuals, families, communities and societies. Also recognised are the links with health, reproductive health and rights, livelihood, poverty, survival and life and these are demonstrated by social movements focusing on abortion, HIV and AIDS, sexual orientation and gender identity (SOGI), sexual violence, genital mutilation and other issues. Thus, while the ICPD PoA falls short of addressing the multiple aspects of sexuality, it is valuable in that it recognises the centrality of sexuality in women’s rights and adolescent needs, includes within the definition of reproductive health a satisfying and safe sex life, and calls for accessible sexual health care and sexuality education for all.
In the past few decades, sexuality has increasingly been established as an integral aspect of personhood. Therefore, States, being responsible for facilitating realisation of one’s fullest potential, should ensure that people are able to freely develop and express their sexuality. However, what we find prevailing is a continued regulation of sexuality and all related matters, by societies and governments using instruments such as education, religion, law and policy, seeking to enforce a sexual discipline that emerges from a hetero-normative¹ framework that favours the heterosexual male.
Such regulation of sexuality, more often than not, impacts sexual and reproductive rights of people, some groups of people more so than others. For example, adolescents and young people, the elderly, women – especially single women – sex workers, and people marginalised on the basis of their sexual orientation, gender identity and expression (including lesbian, gay, bisexual, transgender and intersex people) are disproportionately affected. They experience social and/or systemic exclusion, various forms of violence, including stigma, discrimination, physical and sexual violence, and/or criminalisation.
In many parts of Asia, the fear of the sexual immorality of certain classes of people and communities caused the colonial State to criminalise certain tribes and enact anti-sodomy laws in the colonies. These impositions were tools of power, which sought to subdue and divide the subjects. These continue in the post-colonial era and are seen to mirror social values and morals while serving as instruments of social control.² Most of the countries included in the study are living with these alien, colonial, legacies while social morals in the colonising countries have changed in the past decades. In current times, there has been a rise of fundamentalism in the region, which signifies the strong nexus between religion, nationalism and patriarchy, and rigidly seeks to further regulate sexuality. Hence, it was considered important to map trends in sexuality and monitor how governments have upheld their commitment to ensure access of all people of appropriate ages to reproductive health (7.6, ICPD PoA), which implies that people are able to have a satisfying, healthy and safe sex life (7.2, ICPD PoA).
Of the different groups of people marginalised for their sexuality, transgender people’s health needs, experiences and access to rights have had limited documentation. There is existing literature and scholarship on histories of ‘third sex,’ ‘third gender’ and transgender identities in Asia.³ There also exists documentation of the present-day social position, marginalisation, discrimination and violence faced by transgender people.4 However, the status of their access to reproductive and sexual health and rights has had limited documentation, and thus has been the subject of this study. This is significant because feminist activism has often had a very troubled relationship with transgenderism over concerns that it enacts and reinforces gender stereotypes.
As a result, transgender issues have rarely been included in discourses, research and programmes on women’s health and rights. Similarly, the broader health and development movements have rarely included transgender issues, with the exception of HIV and AIDS movements in which the focus has also been on disease prevention and service provision, and less so on empowerment and rights.
The ICPD was a landmark conference for recognising that progress could not be made
with respect to health, sustainable development, population, human rights and poverty eradication without State investment in health, provision of comprehensive sexual and reproductive health information, services and supplies for all people, and advancement of gender equality. Movement towards such progress requires supportive law and policy. State policies and law create the political environment for affirmation and realisation of human rights or systemic violations. It is within this environment that societies evolve, governments function, public services including health care are provided, and people can realise their rights or seek redress in case of violations. Hence: this study focuses on how State policies and laws in the 12 Asian countries studied advance or prevent transgender people’s access to reproductive and sexual health and rights.
There have been recent developments in parts of Asia such as Nepal, Tamil Nadu (in India), Thailand, and parts of China that have recognised citizenship of transgender people, affirmed their rights, and enforced policies for their advancement, including access to education, health, housing and family formation.
Nepal’s Supreme Court passed a judgement that recognised LGBTI persons as “natural persons” and instructed the government to change laws and policies that discriminate against them and enforce laws that protect them from discrimination.
The Tamil Nadu government started issuing ration cards5 to aravanis, constituted a Transgender Welfare Board, conducted a census of aravanis and issued an order that they can share 30% of seats reserved for women in government-owned and government-aided arts and science colleges.
Thailand’s new constitution states that all people shall enjoy equal rights and protection under the law regardless of their sex, and the attached explanation states that this includes men, women and people of other gender identities. Some jurisdictions in China have laws that recognise transgender people in their new gender.6 It is important to analyse these developments and the factors that brought them about so that lessons from these situations can be replicated or adapted by movements in other parts of Asia and the world.
While the ICPD PoA was conceived using a binary framework of gender and, therefore, does not
make a specific mention of the needs and rights of transgender people, it states the right of all people to the highest standard of sexual and reproductive health (7.2, ICPD PoA); this includes transgender people. Hence, States are required to create and implement laws, policies and programmes that facilitate transgender people’s access to education, health and livelihood, and eliminate social and legal discrimination faced by transgender people.
Following are portions of the ICPD PoA that can be used to advocate for transgender people’s rights:
Principle 1 | All human beings are born free and equal in dignity and rights. Everyone is entitled to all the rights and freedoms set forth in the Universal Declaration of Human Rights, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinions, national or social origin, property, birth or other status. Everyone has the right to life, liberty and security of person.
Principle 2 | Human beings … are entitled to a healthy and productive life … Countries should ensure that all individuals are given the opportunity to make the most of their potential. They have the right to an adequate standard of living for themselves and their families, including adequate food, clothing, housing, water and sanitation.
Principle 8 | Everyone has the right to the enjoyment of the highest attainable standard
of physical and mental health. States should take all appropriate measures to ensure … universal access to health-care services, including those related to reproductive health care, which includes family planning and sexual health.
Paragraph 7.3 | … basic right of all couples and individuals to … attain the highest standard of sexual and reproductive health.
Paragraph 7.6 | Reproductive health care in the context of primary health care should, interalia, include: family-planning counselling, information, education, communication and services; … prevention and appropriate treatment of infertility; … treatment of reproductive tract infections; sexually transmitted diseases and other reproductive health conditions; and information, education and counselling, as appropriate, on human sexuality, reproductive health and responsible parenthood.
Paragraph 11.5 | To achieve universal access to quality education, with particular priority being given to primary and technical education and job training, to combat illiteracy and to eliminate gender disparities in access to, retention in, and support for, education; to introduce and improve the content of the curriculum so as to promote greater responsibility and awareness on the interrelationships between population and sustainable development; health issues, including reproductive health; and gender equity.
Paragraph 12.11 |… contribute to the understanding of factors affecting universal reproductive health, including sexual health, and to expand reproductive choice.
Paragraph 12.12 | Governments … should increase support for … research to strengthen reproductive health services …
Paragraph 12.20 |… promote socio-cultural and economic research that assists in the design of programmes, activities and services to improve the quality of life and meet the needs of individuals, families and communities, in particular all underserved groups; … understand that sexual and reproductive behaviour occurs in varying socio-cultural contexts, and to understand the importance of that context for the design and implementation of service programmes.
Paragraph 13.2 | There is also growing recognition that population- related policies, plans, programmes and projects, to be sustainable, need to engage their intended beneficiaries fully in their design and subsequent implementation.
1 This term is used to denote a dominant societal ideology which prescribes rigid gender roles and compulsory heterosexuality.
2 Human Rights Watch. (2008). This Alien Legacy: The Origins of “Sodomy” Laws in British Colonialism. Available at http://www.hrw.org/en/reports/2008/12/17/ alien-legacy-0
3 These include: Sanders, D. (2008). Third Sex Identities and Transgender Rights: Policies in Asia
and the West. Paper presented at VII Conference – International Association for the Study of Sexuality, Culture and Society, Hanoi, Vietnam, 2009; Slamah, K. (2005). The Struggle to be Ourselves, neither Men nor Women: Mak Nyahs in Malaysia. In Misra, G. and Chandiramani, R. (Eds.) Sexuality, Gender and Rights: Exploring Theory and Practice in South and Southeast Asia. New Delhi: Sage Publications; Sukthankar, A. (2005). Complicating Gender: Rights of Transsexuals in India. In Narrain, A. and Bhan, G. (Eds.) Because I Have A Voice: Queer Politics in India. New Delhi: Yoda Press and some titles included in the Suggested Readings section of this report).
4 Including Sanders, 2008; Slamah, 2005; Revathi (2005). A Hijra’s Own Story. In Narrain, A. and Bhan, G. (Eds.) Because I Have A Voice: Queer Politics in India. New Delhi: Yoda Press; Peoples’ Union for Civil Liberties, Karnataka [PUCL-K] (2003). Human Rights violations against the transgender community: A study of kothi and hijra sex workers in Bangalore, India.; and Teh, Y. K. (2001) Mak Nyahs (Male Transsexuals) in Malaysia: The Influence of Culture and Religion on their Identity. IJT 5,3, http://www.symposion.com/ijt/ ijtvo05no03_04.htm.
5 A Ration Card is a document issued under an order or authority of an Indian State Government, as per the Public Distribution System, for the purchase of essential commodities from fair price shops. It has become an important tool of identification for Indian citizens.
6 Sanders, D. (2008). Third Sex Identities and Transgender Rights: Policies in Asia and the West. Paper presented at VII Conference – International Association for the Study of Sexuality, Culture and Society, Hanoi, Vietnam, 2009.