THIRD GENDER AND SOCIAL POLITICS

- Nishtha Singh

“I am an invisible man…No, I am not a spook like those who haunted

Edgar Allan Poe; nor am I one of your Hollywood-movie ectoplasms…I

am a man of substance, of flesh and bone, fiber and liquids…I am

invisible, understand, simply because people refuse to see me…”

Ralph Waldo Ellison (Invisible Man, 1952)1

The above lines, from the famous book Invisible Man by Ralph Ellison, have been

employed in order to depict what this paper attempts to bring forth – the unvoiced, the

unrepresented yet existent mass of the society, and their trials and tribulations due to the

‘Power of Normalization’.

While introducing this invisible constituency of persons, it is of great importance that one

fully appreciates the distinction between ‘sex’ and ‘gender’; two terms that are socially

used interchangeably in our present-day society. While the former is what one is usually

born with, the latter is what the society determines irrespective of the external sexual

attributes by stereotyping.2 As for most things, society finds it convenient and is often

enticed by the appeal of segregating all genre of things into water-tight compartments.

Similarly, in the context of sex, the category best known and accepted by society can

either be a woman or a man. A simple instance such as a common entrance form of any

educational/social institution is adequate evidence of the fact that there is no space for

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any variant from that classification, for the third gendered personality. In fact, even forms

that have suddenly started catering to any such variance clearly scream out their

insensitivity by homogenizing all such categories under the neat heading of “others”. One

is left to wonder whether specifying one’s “otherness” will even be accepted by the

institution in question. When the idea of acceptance of a certain stratum of human species

is absent, they are forced to make their peace with completely ignoring their own

existence or to make them choose by simply abiding by the redundant norms of gender

stereo-typing3. Hence, the overt presence of any eunuch generates either ignorance or

shock in public. It is easy to conclude that fear is the underlying emotion causing all these

possible reactions, clearly generated by unawareness due to the taboo that surrounds such

knowledge.

Since the public at large are not aware of their existence and anatomy, it is of great

importance to look deeper into the conditionality thrown towards the third gender

physically and emotionally in order to comprehend them. On the basis of physical

anatomy, third gender can be best understood broadly under two heads. Although, it is

impossible to categorize the broad spectrum of variations that the society easily confines

within the binaries; but for clarity we can understand the third gender under broader

heads as ‘transgender’ and ‘intersexed/eunuch’.

Where, people identify as transgenders who undergo gender variance or dysphoria,

which is a condition wherein people experience a certain discomfort with their ‘assigned

gender’ and ‘experienced gender’. Transgender is a vast term which can include anyone

who feels trapped as a gender identity which is different from their anatomically assigned

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sex.4 Any person who fails to identify with the sex he/she is born with, has a choice of

either breaking through the physical barriers through castration (in case of a biological

man), or to cross-dress and carry on practicing the gender of the opposite sex. Therefore,

if a person born as a man, if feels like a woman and chooses to go through with castration

or sex re-assignment surgery (SRS), would be termed as a trans-woman.

Whereas, ‘Intersexed or eunuchs’ – the term invizibilized within the broad spectrum of

LGBT movement i.e. the third gender of the society goes back to a Greek root i.e.

eunoukhos; which literally means ‘guard of the bed chamber or harem’. There is very

little that is known about an intersexed person; typically an intersexed identity includes

three medical conditions i.e. of congenital adrenal hyperplasia, classical hermaphroditism

and hypospadias.

Therefore, the fundamental difference between a transgender and an intersexed person is

on the basis of their biological anatomy which they are visibly born with; if the child is

born with a sex organ under developed or both present then they are understood as an

intersexed child whereas, if the child is born as a boy and at any stage in their life cannot

identify with the gender they are born with will be a transgender child. Medical

techniques are used to address both the above stated conditions, i.e. either at birth

(corrective sex surgery for an intersexed child) or anytime later in life when the person

unidentifies with their assigned gender for long and passes the test to re-assign their

biological sex.

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While there are very few natural born hermaphrodite eunuchs, there are more who choose

to get sex re-assignment surgery or fight their natural sex against the gender stereotyping

by society. In a survey conducted in India, it was witnessed that only 13 out of 100 were

born as hermaphrodites and 11 transvestites, whereas 76 were eunuchs out of castration,

which would broadly include transsexuals.5 In all, there were approximately 1.9 million

intersexed people/eunuchs, excluding transgenders, in March 20126, i.e. those who are a

major chunk of society, yet denied their rights at every level, even mere existence.

Therefore, it is essential for us to be aware of the fact that eunuchs are almost one third of

the total population of the society that we exist in. By direct implication, they must have

all the rights and duties on an equal basis with others. Furthermore, they cannot be

alienated from their right to exist equally and inclusively in society, rather than having to

plead for bare survival, human needs and necessities.

I. POLICTICS AND GENDER

This segment of the paper discusses the dynamics of ‘authority’ and ‘power’ as basis of

domination and claim over the society as it acts, and has always acted, upon the

invisibility of this mass7 of persons. This fragment uses the existence of the intersexed

community8 as the basis for revealing the age-old oppression via domination in various

forms of governance from time to time. This portion examines the social positioning of

eunuchs with the aid of various scholars’ works in diverse fields, taking into account

those fragments that are relevant to my study.

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Dwelling on this central idea, the first sub-section showcases the absolute domination by

the sovereign to this era’s subtle domination by the state and its machineries (power

holders9). This subtle domination is displayed by reading between the thin lines of

governance with the underlying principle of legitimate authority, which if flouted or

provoked, turns to power-based domination by the power holders. Looking into the

notion of ‘legitimacy’, this sub-section tries to explore the trivial yet consequential

difference between authority and power. De-facto and legitimate authority which differ

broadly just in their right to claim, eventually end up dominating the society either by

means of barefaced or subtle domination (as in the present day modern society).

Moreover, by virtue of being born to a certain society, each individual is eventually

absorbed into the normalized framework set up by the power holders who neatly merge

these norms into the domain of legitimacy. To ensure the continuum of this domination

and its plays of power, power holders carve out ways to do so and ultimately normalize

the mass into the set-up. The second sub-section then builds upon this passive domination

and brings out how it is managed by those who possess social power (‘haves’/state

machinery) especially in the context of minorities, eunuchs being the particular instance

in this case.

1. Power/Domination existent in Society

The most noticeable part about any institution and its functionality is a certain control and

authority to run it. The trajectory of evolution of societies at large is invariably

understood in terms of an arbitrary notion of ‘order’. Further, this ‘order’ is created by

virtue of a certain set-up by an individual alone or a group of people who have shared

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objective(s) for the institution/society on the basis of which it runs. 10 These ‘power

holders’ become the possessors of authority over such a society.

It is of great significance to acknowledge and appreciate the difference between

‘authority’ and ‘power’ per se. Unlike authority, power does not have the underpinning

of legitimacy to its benefit. Power can be understood as the “probability that one actor

within a social relationship will be in a position to carry-out his own will despite

resistance, regardless of the basis on which this probability sets” 11. It clearly explains that

power rests on the personal traits, will and capability of the power-holder (either

individual or otherwise); it works irrespective of legal sanction and despite any resistance

to the domination from society at large. On the other hand, ‘Authority’ (Herrschaft)

depends more on the social standing or status of an individual in position of control with

some claim on society even if not entitled to legal authority (de facto). Therefore,

authority is the “probability that a command with a given content will be obeyed by a

given group of people”12.

Weber had laid a proposition for the classification of the types of legal rule/authorities

existing in society.13 The first type of authority, i.e. ‘traditional’, as the name suggests,

exists by virtue of having been followed for ages and consequentially having been given

an informal sanction. The second type is ‘charismatic authority’, where the charisma,

personality and heroism of a leader attract the masses to believe in him and hence grant

him/her the control over society, despite the absence of legal and traditional sanction.

Lastly, ‘rational-legal authority’ is largely bound by the legal rationality, legitimacy and

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bureaucracy; it rests in the hands of the superiors who administer on the basis of these

rules.

Weber’s analysis and basis of classification holds good for all times to come and is not

only relevant to the legal perspective. However, Joseph Raz has also projected a similar

interpretation of authority, but from a contemporary perspective. For the sake of

coherence, while describing the fundamental bases of the kinds of power held by people,

Raz has divided the same into three categories from a more Politico-legal point of view.14

The first type is the practice of ‘naked power’; it shares relation with the masses on the

basis of power and its fear, with no right as such to practice the same. The second kind,

although it has no claim over society to practice control, claims its ‘de-facto authority’

and legitimacy. The last category of authority is known as ‘legitimate authority’ which

society accepts as one with valid claim to practice control over it. The constant

commonality amongst both the classifications propounded by Weber and Raz in two

different eras happens to be ‘domination’, whether with the acceptance and assent of the

society or otherwise. As from the very beginning of time, ‘domination’ has been the

entry-door for ‘power’ within any walk of society. It is fascinating to observe, as was

done by Max Weber that, ‘domination’ seems to be the inbuilt answer to the important

question of how to administer society; which more often than not eventually becomes a

way of controlling the masses.15

Before we step into the question of ‘domination’, it is increasingly essential for us to

problematize and nuance the ‘legitimacy’ question that gives certain authorities, the

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leverage to practice control over society, while others are defied. As legitimacy is the

underpinning for most societies and state machineries that practice legitimate/rational-

legal authority or even de-facto authority in the present day, it is exceedingly essential for

us to appreciate what exactly enables such authorities to attain this status over others. As

expounded by Max Weber, ‘legitimacy’ is the “probability that to a relevant degree the

appropriate attitudes (i.e., acceptance of the validity of the power holder’s claim to be a

valid authority) will exist and the corresponding practical conduct (i.e., obedience)

ensue”16. He further cited that “in no instance does domination voluntarily limit itself to

the appeal to (citizens) material or affectual or ideal motives as a basis for its

continuance. In addition every such system attempts to establish and to cultivate the

belief in its legitimacy.”17 It is implied by the above mentioned proposition made by

Weber that reasons for any authority to attain the status of legitimacy can be varied. It

can vary from ‘material interest’ of people at large or selectively to have a certain

individual in control for some personal interest ; ‘affectual interest’ towards a certain

person or group of persons in the power holding capacity of society; and to ‘ideal

interest’ invested in a certain person either with spiritual or charismatic belief. It is

obvious that each participant in such a scenario, for whichever reason that best suits

them, makes their choice to place the control of their fate in the hands of the most

accepted power holder. These power holders are thus an indirect representation of the

masses who have entrusted them with the major decisions that would be taken by them,

assumed to be in the best interest of society per se. Gradually, legitimacy and legitimate

authority become projections of the masses’ preference for their own administration. In

such a scenario, these chosen representatives prove their worth by offering solutions in

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case of political crises, while the masses are expected to adhere willingly, as these

solutions are ‘in their best interest’. 18

Although such a political scenario appears to be flawless at the basic conceptual level, a

close observation reveals numerous problematic aspects on the role of legitimate

authority even in a modern society. Eventually, all control of any kind accumulated in

hands of a few can lead to an undue concentration of power, which from time to time, has

been observed to lead to arbitrary decisions. Since the right to govern the masses was

either entrusted by the society itself (in case of legitimate authority) or appropriated by

the power holder with the unsubstantiated claim of being accepted by society (in case of

de facto authority), each kind of authority claimed a legitimate right to govern society.

Foucault speaks of a similar ‘domination’ prevalent in the societies of the long past – the

Sovereign’s command having the ultimate Right to Death19, i.e. the power akin to that of

the patria potestas whereby the dominator could take away anyone’s life without

sufficient justification.

Over time, Foucault notices that there has been a shift in the strategy of the dominator –

instead of espousing this ‘naked power’20 they have moved onto more subtle variations,

which he names the ‘power of the social body’ in the society or bio-power 21. This type of

power, he lets us know, is based upon ‘discipline’ and as such is also referred to as

‘disciplinary power’ which moulds the society, its practices and beliefs in a given manner

by continuous, anonymous and automatic functioning.22

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The dynamics of authority with a legal sanction of the masses entrusted in the hands of

the power holder transforms to gradual passive/subtle domination which is far more fatal

than ‘naked power’ on the face of it. Since domination is camouflaged by fancy and

utopian concepts of legitimate authority or democracy, it is often revealed in hindsight,

when the power-holder has already failed the people in times of hardship. Despite

successive failures in proving their worth to their people and yet being in power is

evidence enough to their claim of continual legitimacy. This continuation of a regime of a

power holder irrespective of their evaluation by the masses leads to domination and their

rules tend to seep deep into the system, eventually normalizing their rules of civilization.

Through the course of his work, Foucault has made a relentless effort to throw light on an

area of darkness, by letting people know how as of today, ‘knowledge’ operates as a

double-edged sword, a dual tool in the social setup — a tool of both oppression and

liberation. He claims that ‘knowledge’ today is what is being used to disseminate the

‘norms’ set at the fancies of the dominator. Nevertheless, it cannot be denied that

‘knowledge’ is the only way to break through this vicious circle of blindness.23

2. Normalized power in relation to eunuchs in our society

Despite its omnipresence the dominant scenario, is ignored, especially with respect to the

conditions of the marginalized sections of society. In the present analysis, I take a look at

the eunuch community as a whole and elaborate upon how they are still far from being

acknowledged as a part and parcel of society. Keeping this concern as the primary focus

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of my paper, I concentrate my arguments around the most fundamental area of concern of

this paper. Eunuchs are invizibilized to such an extent that they are not even

acknowledged as humane enough to deserve the possession of the capacity to enjoy rights

simply by virtue of their human existence. The question of asserting ‘rights’, remains a

far-fetched dream. This dissertation is being written with, the hope of realizing that

dream. I shall begin by taking a look at the age old subjugation of eunuchs at the hands of

the society and then move towards more contemporary concerns.

It is of interest to point out that this subjugation is not something that has always existed.

Indian Mythology acknowledged the presence of eunuchs and portrayed them in

powerful shades24 unlike in today’s scenario, where they are ostracized and positioned as

powerless. This downturn in the status of eunuchs can be traced back to the British rule in

India when ‘The Criminal Tribes Act, 1871’25 was made applicable to the tribes and,

eunuchs. Part II of the said Act, i.e. Sections 24 to 3126 dealt with eunuchs and contained

inherently arbitrary and irrational legal text to suppress, override and control the

existence of eunuchs in the society.

It had provisions requiring the registration of all Eunuchs and their Property27; the next

question that comes to mind is, if all other members of a society are asked to register in

such a manner, without any wrongdoing on their part. The answer is simple: No! This

treatment is, in itself, biased and degrading. On top of this, the act further prescribed

penalties on such registered eunuchs appearing in female clothes, or dancing in public.28

The first part of the section then inherently penalizes their natural tendencies while, the

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latter criminalizes acts which otherwise are not criminal. The crucial point here is that the

act, especially its provisions with respect to eunuchs, was inherently against reason and

only served to push them away from the mainstream.

The provisions were diabolical in their treatment of ‘free’ people, who were like any

other in a society. It is ironical – that the entire existence of a group of people could be

compressed into eight odd sections of legislation while simultaneously innumerable

legislations are enacted for the general population. One is only left to ponder upon the

numerous implications of this fact.

This fact loudly speaks out how easy it is, to suppress the ‘lesser-abled’ as opposed to

those who are socially considered the ‘ordinarily-abled’/mainstream constituency of the

people.29 There is extensive documentation of the intensity of opposition voiced by

Indians on the various laws that came for the benefit of the oppressed under British rule;

yet there is little in recorded history, showing any opposition against this discriminatory

legislation.

In my opinion, it is extremely crucial to notice how it is seen as absolutely unproblematic

to suppress the weaker (made so by society rather than being born as weak) section.

Furthermore, it is critical to note how well these eight sections actively exert their power

(regulated by the state machinery) to an extent of dominating not just their life and death

but also ensuring that the fate designated to them should not be escaped at any cost.30

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The depth of normalization and the strength of its roots is strengthened by the fact that

they were left unrepresented and without a voice – as someone that doesn’t exist – by the

Constitution of India, the one that “we the people” gave to ourselves. Our Constitution;

which promised exalted notions like equality, fraternity and justice didn’t make any

reference to the deplorable social standing of this part of society, proceeding as if they

never existed.

As it turned out, they were finally recognized to have a safe existence under the Habitual

Offenders Act 1952.31 However, as an unwritten clause, it was assumed that with the

repeal of the Criminal Tribes Act 1871, it was this new act which was created under a

different name, to continue with the same spirit of controlling and punishing the tribes,

eunuchs and now other criminals as well, who were further brought to their classification.

Therefore, my humble submission through this paper has been to bring out the previously

‘top-bottom manners of control’32 as the now ‘bottom-top domination approach’33 of

power players. This topsy-turvy attitude is best manifested when the same text is found to

be read and interpreted according to the fancies of the powers that be.34 The ambiguities

thus created in the legal text are more to do with suiting the will of the dominator than

that of the people. When culpability of eunuchs is in question, they are not left as an

exception, nor leniently dealt with. However, when it comes to claiming rights, the

dilemma of interpreting ‘persons’ before law and ‘sex’ is brought up which surprisingly,

they have managed to evade for almost seven decades35

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1
Ellison, Ralph. Invisible Man. New York: Vintage International Edition, 1996. Print.
2
“What is the difference between Sex and Gender?” transpedianews.com/. Transpedia News, 2017.
Web.15 Sept, 2017

3
The normalization has let the acceptance of medical transitioning for an intersexed or transgender, led to
be more accepted rather than accepting an identity as it is.
4
Brill, Stephanie and Rachel Pepper. The Transgender Child: A Handbook for Families and Professionals
United States: Cleis Press, 2008. Print

5
Chaterji, Shoma.“Eunuchs of India: Deprived of Human Rights”. Web. 19 October, 2012
<http://www.humanrightsdefence.org/eunuchs-of-india-deprived-of-human-rights.html>
6
Saxena, Piyush. Life of a eunuch. Navi Mumbai, 2011. Shanta Publishing House. Web. 15 Sept. 2017
7
‘Invisibility of this mass of person’ is understood on the basis that that section of society whose entity is
not recognized, neither legally nor socially.
8
Hereinafter, referred to as ‘eunuchs’
9
‘Power holders’ are understood as the state machineries, which hold power and exercises it in society.
10
Garcia, John David. Civilization and Ethics: A Practical Guide for Maximizing Creativity. Whitmore
Publishing Company: 1991.Print.
11
Weber, Max. Economy and Society: An Outline of Interpretative Society. United States of America:
University of California Press, 1978. Print.
12
Id.
13
Id.
14
Raz, Joseph. Between Authority and Interpretation: On the Theory of Law and Practical Reason. New
York: Oxford University Press, 2010. Print.
15
Id.; See generally “Domination”
16
Supra note 11, at 7
17
Id.
18
Coicaud, Jean-Marc. Legitimacy and Politics: A Contribution to the Study of Political Right and Political
Responsibility. Trans. Curtis, David Ames. Cambridge: Press Syndicate University of Cambridge, 2009.
Print.
19
Foucault, Michel. The Foucault Reader: An Introduction to Foucault’s Thought. Trans. Rabinow, Paul
London: Penguin, 1991. Print.
20
Russell, Bertrand. Power: A New Social Analysis. New York: Routledge Classics, 2004. Print.
21
Supra note 19, at 10.
22
Id.

14
23
Gordon, Colin, comp. and ed. Power/Knowledge: Selected Interviews and other Writings, 1972-1977 by
Michel Foucault. New York: Pantheon Books, 1980. Print.
24
As an illustration there are the cases of the followers (eunuchs) of Lord Ram, who waited for his return
from exile, were blessed by him in Ramayana. Then there are also illustrations from the Mahabharata
where Lord Krishna became Mohini (Eunuch) – the wife of Aravan, son of Arjun, while Lord Shiva’s
avatar Shikhandi (Eunuch) lead to the death of Bhishma.
25
The Criminal Tribes Act, 1871.Web.15 Sept, 2017
26
S.24 Register of Eunuchs and their Property, defining eunuchs; S. 25 Complaints of entries in Register,
S.26 Penalty on Registered eunuchs appearing in female clothes, or dancing in public or for Public hire; S.
27 Penalty on registered eunuchs for keeping boy under sixteen; S. 28 Maintenance and education of boys
whose parents cannot be found; S. 29 Disabilities of registered eunuchs; S. 30 Power to require information
as to registered eunuchs property… penalty for refusing such information; S.31 Rules for keeping and
maintaining registers for eunuchs.
27
S. 24, The Criminal Tribes Act 1871
28
S. 26, The Criminal Tribes Act 1871
29
‘Abled’ I here comply, competent in all faculties of senses and physicality. As determined by the society
broadly as the only ones capable!
30
An illustration of the disciplinary power as propounded by Foucault
31
Habitual Offenders Act, 1952. Web. 15 Sept, 2017
32
Direct absolute power of the Sovereign as expounded by Foucault
33
The facts of ‘exclusion’ of large sections of society the State managed to ‘normalize’ the people against
such discrimination. This is a major reason behind me writing this paper, to ‘efface’ the inherent
domination that exists in the society vis-à-vis the eunuchs.
34
As when eunuchs are to be punished for an offence, they are recognized as ‘Persons before law’ whereas,
when it comes to their subsistence and security right’s claim they are denied the status of ‘persons before
law’.
35
Part II General Explanations, Indian Penal Code, 1860: S. 8 ‘… Gender-- The pronoun "he" and its
derivatives are used of any person, whether male or female…’; S. 10 ‘… ‘Man’ and ‘Woman’ -- The word
‘man’ denotes a male human being of any age; the word ‘woman’ denotes a female human being of any
age…’; S. 11 ‘… ‘Person’ -- The word ‘person’ includes any Company or Association or body of persons,
whether incorporated or not…’

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