1 Mazuzahn

Berdache Gender Roles Essay

When I say that transgenderism is culture bound, don’t get me wrong: I think every gender role and presentation is, in fact, dependent on culture.  The entire idea of gender, the roles that are developed and called “gender,” are based on the sex binary.  That’s why almost always, when you see gender roles, even if there are more than two, you can bet money that it’s just a matter of reclassifying people who don’t fit into a culture’s otherwise rigidly defined sex roles.

Which brings us to the indigenous people of North America.

I have a special kind of rage for any white person who claims to identify as a “Two Spirit” person.  It’s like wearing a hipster headdress: it proclaims loud and clear that you’re a white person who likes to appropriate American Indian culture while having little or nothing to do with the culture you’re appropriating.

The version of this that’s less enraging but more prevalent (think of it as the “dreamcatcher” of appropriation–common, misunderstood, and talked about in gross ways by all kinds of white people) is the white trans person who points to American Indian cultures as some kind of more accepting place for people with dysphoria/GID, because many of these cultures had a “third gender.”  This represents a misunderstanding of what, precisely, being two-spirit meant culturally, economically, and socially for many two-spirit people, and also represents a very limiting, naive, “all these people look the same to me” view of American Indian nations.

Before we start: lumping all non-gender-conforming people in indigenous North America into a single “third gender” or “berdache” or “two-spirit” label is problematic.  The cultures of pre-Columbian North America were incredibly distinct from each other, with significantly different gender roles to be observed even in Indian nations that were very close to each other.

What gets even more interesting when you look into the two-spirit phenomenon is where it doesn’t pop up–or doesn’t pop up with the same frequency.

The Iroquois Confederation historically had no two-spirit people in spite of keeping significantly more detailed documentation of the lives of its people than many other American Indian nations.  For that matter, neither did the Apache, who treated two-spirit people respectfully and cordially when they met them but did not themselves have two-spirit people as part of their culture.

What would make the Iroquois and Apache different?  It’s not a matter of genetics.  That’d only be possible if there were no intermarriages between American Indian people from different nations, and that’s simply not true.

The Iroquois had one of the most politically egalitarian societies for men and women in the world, at the time when white folks set out to destroy them systematically.  Women had significant amounts of political power, and the society was not simply matrilineal (which can sometimes still involve huge patriarchal gender role issues–hello, Orthodox Judaism!) but involved real equality of authority.

The Apache were famed for their skill in battle, which may mean you’ve never heard one of the most fascinating parts about their culture.  Because war was a near-constant fact for Apache adults, while adults tended to have sex-segregated roles in society, children were actually given a very non-gendered upbringing.  Girls were expected to know how to do “boy” things, and vice versa.  Why?  Think about the home front during World War II.  It’s a good idea if all your people know the basics, just so that when there are war parties gone, or a sex imbalance after raids, you don’t lose all of the missing/dead people’s knowledge and skill base.

Neither of these societies–which have in some ways more progressive and egalitarian places for women and/or girls than contemporary societies–had two-spirit people.  Was this because they were evil and repressive?

Let’s take the Lakota, one piece of the Sioux nation, as an alternate example.  Please note that I’m speaking about the Sioux nations from the perspective of someone who has taken time to learn a great deal of a Sioux language and has studied these cultures both in historical and contemporary contexts.  The Lakota have a longstanding tradition of two-spirit people, documented as far back as the written record goes.  Among the Lakota, polygyny was accepted, and gender roles were extremely clearly established for boys and girls from an extremely early age.

The Lakota two spirit people are never born women.  Almost all of them, historically, have been men.  Claims of intersexed/hermaphroditic people from the 19th/early 20th centuries should ALWAYS be taken with a significant grain of salt, because of the trouble Europeans in this era had distinguishing between homosexuality and hermaphroditism (both male and female homosexuals were often thought to have hermaphroditic qualities–a historical fact we’ll talk about in another entry!).

Were no Lakota women “born this way” while men were?  Let me postulate a different theory: that it’s men in power who impose gender roles, and that Lakota men’s patriarchal society had to have somewhere to put “men who don’t ‘act like’ men” because of male gender policing. Lakota people put two-spirit men in the part of the camp where women and children lived, which was generally not as well cared for and considered not as prestigious because of the patriarchal way that they lived.

While there were occasionally women in the Lakota and other Sioux nations that became part of war parties, they were not regarded as “male” in any way relating to their oppressed status at home.  There was no need for the patriarchal Sioux to create a category for gender non-conforming women, nor to give them special status or specific supposed talents (Lakota and Dakota two-spirit people are said to be excellent namers of children and are thought to be able to see visions of the future).  That’s something men do for men, because just by dint of having a penis, gender non-conforming men deserved to be able to have their own group and identity.

You see this in large numbers of patriarchal American Indian cultures: societies where there’s a firmly established “third” gender that men can elect to participate in (sometimes as older people, sometimes from an early age), while women’s gender roles are firmly entrenched and allow for little variance.  What’s amazing is that many people are invested in the notion that third gender was egalitarian.  Check out how careful this website is to show us both male and female two-spirit people–in fact, having more stories of female two-spirit people–while making no mention of the fact that female third gender individuals were incredibly rare compared to male ones.

Let’s take another example of a society that had a significantly different conception of gender and what it meant to be two-spirit.  The Dene people of Alberta are a First Nations group that historically believed children could be reincarnations of deceased relatives.  So far, so good, lots of cultures think that–hell, sometimes my own mother tells me I’m the reincarnation of my great grandfather.  But in Dene culture, if your parents saw the spirit of a woman enter your mother’s body when she was pregnant, regardless of your birth sex you could be referred to as “my daughter” by the man who believed his daughter’s spirit had been reincarnated into you.  You wouldn’t have to live as the sex of the person that you were thought to have been before, but would always be considered to in some way have a foot in each gender from your reincarnated past.

The Dene, it’s worth noting, forced women to go hungry at their husband’s discretion whenever the tribe was low on food.  Women in this society were among the most oppressed women in all of indigenous North America.  These supposedly progressive ways of viewing gender don’t come from cultures that actually treat women progressively.  Not once.

It’s very strange to watch the contemporary trans movement attempt to incorporate American Indian cultural conceptions of gender-nonconformity, because it’s so clearly an attempt to shoehorn people of the past into contemporary cultural labels.  In some third gender societies, two-spirit was simply a way to handle homosexuality within the group: homosexual men were considered not fully men, a halfway gender that wasn’t quite “normal.”  In others, it was a way to handle intersexed people in societies with rigid sex binaries.  In still others, it was for men who specifically preferred women’s work and roles, like weaving and cooking.

In almost none of these societies did two-spirit people born male identify *as women*.  We have no documented cases (in spite of documentation of other activities and feelings of “berdaches”/two-spirits in history) of two-spirit men anguishing over an inability to be fully recognized as a woman or to have a woman’s body.  They tended to identify as a different type of man, or something between masculine and feminine.

To systematically deprive historical two-spirit people of their own thoughts regarding their gender and what the historical record shows was their place in society–to misrepresent these people, who were often oppressed within their groups rather than lauded for their non-conformity, in spite of the all-too-common hagiographic contemporary notion of American Indian nations as places free from oppression–is to erase the nuance of real history in favor of a conception of history in which really, everyone’s just like you, you lucky 21st century son of a gun who has it all figured out.

The continuous use of two-spirit people as a way to show that transgenderism has existed in all societies–and the incredible lack of knowledge of the basics of indigenous North American cultures shown by many trans people who casually refer to there being transgender people in American Indian societies–is appropriative behavior.  It is taking the parts of a society that you think you like, without studying them much or looking at their origins, and deciding that the culture they’re from must really be deep and would really get you.  It’s de-contextualizing and de-humanizing, and erases differences between American Indian cultures as well as the fundamental ways those cultures historically were different from anything we have on the planet today.

What’s instead true is that American Indian nations that had more rigid gender roles and assigned women less power historically felt the need to strip male/female identities from non-conformers, while more egalitarian societies with less gender socialization lack two-spirit people because of, rather than in spite of, their lack of emphasis on sex-assigned gender roles.

 

–Deirdre Bell

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Third gender or third sex is a concept in which individuals are categorized, either by themselves or by society, as neither man nor woman. It is also a social category present in societies that recognize three or more genders. The term third is usually understood to mean "other"; some anthropologists and sociologists have described fourth,[1] fifth,[2] and "some"[3] genders.

Biology determines whether a human's chromosomal and anatomical sex is male, female, or one of the uncommon variations on this sexual dimorphism that can create a degree of ambiguity known as intersex.[4][5] However, the state of personally identifying as, or being identified by society as, a man, a woman, or other, is usually also defined by the individual's gender identity and gender role in the particular culture in which they live. Not all cultures have strictly defined gender roles.[6][7][8]

In different cultures, a third or fourth gender may represent very different things. To the Indigenous Māhū of Hawaii, it is an intermediate state between man and woman, or to be a "person of indeterminate gender".[9] The traditional Dineh of the Southwestern US acknowledge four genders: feminine woman, masculine woman, feminine man, masculine man.[10] The term "third gender" has also been used to describe hijras of India, Bangladesh and Pakistan[11] who have gained legal identity, fa'afafine of Polynesia, and sworn virgins of the Balkans.[12]

While found in a number of non-Western cultures, concepts of "third", "fourth", and "some" gender roles are still somewhat new to mainstream western culture and conceptual thought.[13] The concept is most likely to be embraced in the modern LGBT or queer subcultures, or in ethnic minority cultures that exist within larger Western communities such as the North American Indigenous cultures that have roles for Two Spirit people.[10][14] While mainstream western scholars, notably anthropologists who have tried to write about Native American and South Asian "gender variant" people, have often sought to understand the term "third gender" solely in the language of the modern LGBT community, other scholars especially Indigenous scholars, stress that their lack of cultural understanding and context has led to widespread misrepresentation of third gender people.[14][15][16][17]

Sex and gender[edit]

Since at least the 1970s, anthropologists have described gender categories in some cultures which they could not adequately explain using a two-gender framework.[3] At the same time, feminists began to draw a distinction between (biological) sex and (social/psychological) gender. Contemporary gender theorists usually argue that a two-gender system is neither innate nor universal. A sex/gender system which recognizes only the following two social norms has been labeled "heteronormative".

Anthropologist Michael G. Peletz believes our notions of different types of genders (including the attitudes toward the third gender) deeply affect our lives and reflects our values in society. In Peletz' book, "Gender, Sexuality, and Body Politics in Modern Asia", he describes:[18]

For our purposes, the term "gender" designates the cultural categories, symbols, meanings, practices, and institutionalized arrangements bearing on at least five sets of phenomena: (1) females and femininity; (2) males and masculinity; (3) Androgynes, who are partly male and partly female in appearance or of indeterminate sex/gender, as well as intersexed individuals, also known as hermaphrodites, who to one or another degree may have both male and female sexual organs or characteristics; (4) the transgendered, who engage in practices that transgress or transcend normative boundaries and are thus by definition "transgressively gendered"; and (5) neutered or unsexed/ungendered individuals such as eunuchs.

Intersex people and third gender[edit]

Main articles: Legal recognition of intersex people and Intersex and LGBT

Intersex people are born with sex characteristics, such as chromosomes, gonads, or genitals that, according to the UN Office of the High Commissioner for Human Rights, "do not fit typical binary notions of male or female bodies".[19] A sex and gender distinction is not universal, and Peletz's description of gender as designating biological variations as well as cultural practices is not unique. In a study of arguments that intersex people fit into a third gender classification, intersex scholar Morgan Holmes argues that much analysis of a third sex or third gender is simplistic:[20]

much of the existing work on cultural systems that incorporate a 'third sex' portray simplistic visions in which societies with more than two sex/gender categories are cast as superior to those that divide the world into just two. I argue that to understand whether a system is more or less oppressive than another we have to understand how it treats its various members, not only its 'thirds'.

Like non-intersex people, some intersex individuals may not identify themselves as either exclusively female or exclusively male, but most appear to be men or women.[4][5][21] A clinical review suggests that between 8.5-20% of persons with intersex conditions may experience gender dysphoria,[22] while sociological research in Australia, a country with a third 'X' sex classification, shows that 19% of people born with atypical sex characteristics selected an "X" or "other" option, while 52% are women, 23% men and 6% unsure.[23][24]Alex MacFarlane is believed to be the first person in Australia to obtain a birth certificate recording sex as indeterminate, and the first Australian passport with an 'X' sex marker in 2003.[25]

The third International Intersex Forum, held in November/December 2013, made statements for the first time on sex and gender registration:[26][27][28][29][30][31][32][33][34]

  • To register intersex children as females or males, with the awareness that, like all people, they may grow up to identify with a different sex or gender.
  • To ensure that sex or gender classifications are amendable through a simple administrative procedure at the request of the individuals concerned. All adults and capable minors should be able to choose between female (F), male (M), non-binary or multiple options. In the future, as with race or religion, sex or gender should not be a category on birth certificates or identification documents for anybody.

The Asia Pacific Forum of National Human Rights Institutions states that the legal recognition of intersex people is firstly about access to the same rights as other men and women, when assigned male or female; secondly it is about access to administrative corrections to legal documents when an original sex assignment is not appropriate; and thirdly it is not about the creation of a third sex or gender classification for intersex people as a population but it is, instead, about self-determination.[35]

In March 2017, an Australian and Aotearoa/New Zealand community statement called for an end to legal classification of sex, stating that legal third classifications, like binary classifications, were based on structural violence and failed to respect diversity and a "right to self-determination". It also called for the criminalization of deferrable intersex medical interventions.[36][37]

Transgender people and third gender[edit]

Gender may be organized differently in different cultures. In some non-Western cultures, gender is not binary and one can cross freely between male and female. This is seen as a mediation between the spirit and mundane worlds.[38] It is seen as a positive and is almost revered in most Eastern cultures, whereas in Western cultures, people who don’t conform to heteronormative ideals are often seen as sick, disordered, or insufficiently formed.[38]

To the Indigenous Māhū of Hawaii, it is an intermediate state between man and woman, or to be a "person of indeterminate gender";[9] While the traditional Dineh of the Southwestern US acknowledge four genders: feminine woman, masculine woman, feminine man, masculine man.[10] The term "third gender" has also been used to describe hijras of India, Bangladesh and Pakistan[11] who have gained legal identity, fa'afafine of Polynesia, and sworn virgins of the Balkans.[12]

In Africa, a woman can be recognized as a “female husband” who enjoys all of the privileges of men and is recognized as such, but whose femaleness, while not openly acknowledged, is not forgotten either.[39] The hijras, of India, are one of the most recognized and socially accepted groups of third genders. This may be a result of the notion of reincarnation, which reduces not only gender categorization but also sex and species, allowing for more fluid and mutable categorization. There are countless other cultures in which the third gender is seen as an intermediate being rather than as a movement from one conventional sex to the other, either male to female or vice versa.[40]

In a study of people in the United States who thought themselves to be members of a third gender, Ingrid M. Sell found that they typically felt different from the age of 5.[41] Because of both peer and parental pressure, those growing up with the most ambiguous appearances had the most troubled childhoods and difficulties later in life. Sell also discovered similarities between the third genders of the East and those of the West. Nearly half of those interviewed were healers or in the medical profession. A majority of them, again like their Eastern counterparts, were artistic enough to make a living from their abilities. The capacity to mediate between men and women was a common skill, and third genders were oftentimes thought to possess an unusually wide perspective and the ability to understand both sides.[41] A notable result of Sell's study is that 93% of the third genders interviewed appeared, again like their Eastern counterparts, to possess “paranormal”-type abilities.[42]

In recent years, some Western societies have begun to recognize genderqueer or non-binary identities. Some years after Alex MacFarlane, Australian Norrie May-Welby was recognized as having unspecified status.[43][44] In 2016, an Oregon circuit court ruled that a resident, Jamie Shupe, could legally change gender to non-binary.[45]

The Open Society Foundations published a report, License to Be Yourself in May 2014, documenting "some of the world's most progressive and rights-based laws and policies that enable trans people to change their gender identity on official documents".[46] The report comments on the recognition of third classifications, stating:

From a rights-based perspective, third sex / gender options should be voluntary, providing trans people with a third choice about how to define their gender identity. Those identifying as a third sex / gender should have the same rights as those identifying as male or female.

The document also quotes Mauro Cabral of Global Action for Trans Equality:

People tend to identify a third sex with freedom from the gender binary, but that is not necessarily the case. If only trans and/or intersex people can access that third category, or if they are compulsively assigned to a third sex, then the gender binary gets stronger, not weaker.

The report concludes that two or three options are insufficient: "A more inclusive approach would be to increase options for people to self-define their sex and gender identity."[46]

Third gender and sexual orientation[edit]

Before the sexual revolution of the 1960s, there was no common non-derogatory vocabulary for non-heterosexuality; terms such as "third gender" trace back to the 1860s.[47][48][49][50][51][52]

One such term, Uranian, was used in the 19th century to a person of a third sex—originally, someone with "a female psyche in a male body" who is sexually attracted to men. Its definition was later extended to cover homosexualgender variant females and a number of other sexual types. It is believed to be an English adaptation of the German word Urning, which was first published by activist Karl Heinrich Ulrichs (1825–95) in a series of five booklets (1864–65) that were collected under the title Forschungen über das Räthsel der mannmännlichen Liebe ("Research into the Riddle of Man-Male Love"). Ulrich developed his terminology before the first public use of the term "homosexual", which appeared in 1869 in a pamphlet published anonymously by Karl-Maria Kertbeny (1824–82). The word Uranian (Urning) was derived by Ulrichs from the Greek goddessAphrodite Urania, who was created out of the god Uranus' testicles; it stood for homosexuality, while Aphrodite Dionea (Dioning) represented heterosexuality.[53] Lesbian activist Anna Rueling used the term in a 1904 speech, "What Interest Does the Women's Movement Have in Solving the Homosexual Problem?"[54]

According to some scholars, the West is trying to reinterpret and redefine ancient third-gender identities to fit the Western concept of sexual orientation. In Redefining Fa'afafine: Western Discourses and the Construction of Transgenderism in Samoa, Johanna Schmidt argues that the Western attempts to reinterpret fa'afafine, the third gender in Samoan culture, make it have more to do with sexual orientation than gender. She also argues that this is actually changing the nature of fa'afafine itself, and making it more "homosexual".[55]

A Samoan fa'afafine said, "But I would like to pursue a master's degree with a paper on homosexuality from a Samoan perspective that would be written for educational purposes, because I believe some of the stuff that has been written about us is quite wrong."[56]

In How to become a Berdache: Toward a unified analysis of gender diversity, Will Roscoe writes that "this pattern can be traced from the earliest accounts of the Spaniards to present-day ethnographies. What has been written about berdaches reflects more the influence of existing Western discourses on gender, sexuality and the Other than what observers actually witnessed."[57]

According to Towle and Morgan:

Ethnographic examples [of ‘third genders’] can come from distinct societies located in Thailand, Polynesia, Melanesia, Native America, western Africa, and elsewhere and from any point in history, from Ancient Greece, to sixteenth century England to contemporary North America. Popular authors routinely simplify their descriptions, ignoring...or conflating dimensions that seem to them extraneous, incomprehensible, or ill suited to the images they want to convey (484).[58]

Western scholars often do not make a distinction between people of the third gender and males; they are often lumped together. The scholars usually use gender roles as a way to explain sexual relations between the third gender and males. For example, when analyzing the non-normative sex gender categories in Theravada Buddhism, Peter A. Jackson says it appears that within early Buddhist communities, men who engaged in receptive anal sex were seen as feminized and were thought to be hermaphrodites. In contrast, men who engaged in oral sex were not seen as crossing sex/gender boundaries, but rather as engaging in abnormal sexual practices without threatening their masculine gendered existence.[59]

Some writers suggest that a third gender emerged around 1700 AD in England: the male sodomite.[60] According to these writers, this was marked by the emergence of a subculture of effeminate males and their meeting places (molly houses), as well as a marked increase in hostility towards effeminate or homosexual males. People described themselves as members of a third sex in Europe from at least the 1860s with the writings of Karl Heinrich Ulrichs[61] and continuing in the late nineteenth century with Magnus Hirschfeld,[47]John Addington Symonds,[48]Edward Carpenter,[49] Aimée Duc[50] and others. These writers described themselves and those like them as being of an "inverted" or "intermediate" sex and experiencing homosexual desire, and their writing argued for social acceptance of such sexual intermediates.[62] Many cited precedents from classical Greek and Sanskrit literature (see below).

Throughout much of the twentieth century, the term "third sex" was a common descriptor for homosexuals and gender nonconformists, but after the gay liberation movements of the 1970s and a growing separation of the concepts of sexual orientation and gender identity, the term fell out of favor among LGBT communities and the wider public. With the renewed exploration of gender that feminism, the modern transgender movement and queer theory has fostered, some in the contemporary West have begun to describe themselves as a third sex again.[63] Other modern identities that cover similar ground include pangender, bigender, genderqueer, androgyne, intergender, "other gender" and "differently gendered".

Third gender and feminism[edit]

In Wilhelmine Germany, the terms drittes Geschlecht ("third sex") and Mannweib ("man-woman") were also used to describe feminists – both by their opponents[64] and sometimes by feminists themselves. In the 1899 novel Das dritte Geschlecht (The Third Sex) by Ernst Ludwig von Wolzogen, feminists are portrayed as "neuters" with external female characteristics accompanied by a crippled male psyche.

Legal recognition[edit]

Main article: Legal recognition of non-binary gender

Austria[edit]

After the decision of the German Federal Constitutional Court (Bundesverfassungsgericht) of 9 November 2017, Austrian media report that a similar case is also pending at the Constitutional Court (Verfassungsgerichtshof) in Austria. Two lower judicial instances already decided against the possibility of a "third gender". Each year at least 35 children in Austria are reported to be born with ambiguous sex characteristics. Surgical interventions on intersex children, to make them fit one of the binary sex characteristics, are criticized by Verein Intergeschlechtliche Menschen Österreich (VIMÖ), an Austrian association fighting for the rights of intersex people. They demand that children should be free to decide on these matters when they are grown up. Johannes Wahala, president of the Austrian Society For Sexologies and head of Beratungsstelle Courage advice center in Graz condemns these operations and wishes for the introduction of a third gender.[65]

Australia[edit]

Further information: Intersex rights in Australia and Transgender rights in Australia

First reported in January 2003, Australians can choose "X" as their gender or sex. Alex MacFarlane is believed to be the first person in Australia to obtain a birth certificate recording sex as indeterminate, and the first Australian passport with an 'X' sex marker in 2003.[25][66][67][67][68][69] This was stated by the West Australian newspaper to be on the basis of a challenge by MacFarlane, using an indeterminate birth certificate issued by the State of Victoria. Other individuals known to have similar early options include Tony Briffa of Organisation Intersex International Australia and former mayor of City of Hobsons Bay, Victoria, previously acknowledged as the world's first openly intersex public official and mayor.[70][71][72]

Government policy between 2003 and 2011 was to issue passports with an 'X' marker to persons who could "present a birth certificate that notes their sex as indeterminate".[69][73] In 2011, the Australian Passport Office introduced new guidelines for issuing of passports with a new gender, and broadened availability of an X descriptor to all individuals with documented "indeterminate" sex.[74][75] The revised policy stated that "sex reassignment surgery is not a prerequisite to issue a passport in a new gender. Birth or citizenship certificates do not need to be amended."[76]

Australian Commonwealth guidelines on the recognition of sex and gender, published in June 2013, extended the use of an 'X' gender marker to any adult who chooses that option, in all dealings with the Commonwealth government and its agencies. The option is being introduced over a three-year period. The guidelines also clarify that the federal government collects data on gender, rather than sex.[77] In March 2014, the Australian Capital Territory introduced an 'X' classification for birth certificates.[78]

Norrie May-Welby is popularly - but erroneously - often regarded as the first person in the world to obtain officially indeterminate, unspecified or "genderless" status.[43][44][79] May-Welby became the first transsexual person in Australia to pursue a legal status of neither a man nor a woman, in 2010.[43][44][80][81] In April 2014, the High Court of Australia ruled that NSW Registry of Births, Deaths and Marriages must record in the register that the sex of May-Welby is "non-specific".[82] The Court found that sex affirmation "surgery did not resolve her sexual ambiguity".[83]

An alliance of organizations including the National LGBTI Health Alliance, Organisation Intersex International Australia and Transgender Victoria has called for X to be redefined as non-binary.[84]

In March 2017, an Australian and Aotearoa/New Zealand community statement called for an end to legal classification of sex, stating that legal third classifications, like binary classifications, were based on structural violence and failed to respect diversity and a "right to self-determination".[36][37]

Canada[edit]

In June 2016, the government of the province of Ontario announced changes to the way gender will be displayed on health cards and driver's licenses. Starting June 13, the Ontario health card no longer displays a sex designation. In early 2017, Ontario drivers will have the option to display "X" as a gender identifier on their driver's licenses.[85]

In April 2017, a baby born in British Columbia, Searyl Atli Dotl, became the first in the world known to be issued a health card with a gender-neutral "U" sex marker. The parent, Kori Doty, who is non-binarytransgender, wanted to give their child the opportunity to discover their own gender identity.[86][87] The province has refused to issue a birth certificate to the child without specifying a gender; Doty has filed a legal challenge.[87][88] Doty and seven other transgender and intersex people have filed a human rights complaint against the province, alleging that publishing gender markers on birth certificates is discriminatory.[88]

In July 2017, the Northwest Territories began allowing "X" as a non-binary option on birth certificates.[89]

On August 31, 2017, Canada began allowing an observation to be added to passports requesting that the holder's gender should be read as "X", indicating that it is unspecified, though a gender of "M" or "F" had to be added as a gender for an undefined period to comply with legal requirements of other countries.[90][91][92]

Germany[edit]

Further information: Intersex rights in Germany and LGBT rights in Germany

Germany is thought to be the first European country that recognizes "indeterminate" sex on birth certificates, which is materialized by the absence of any gender marker, from November 2013. A report by the German Ethics Council stated that the law was passed because, "Many people who were subjected to a 'normalizing' operation in their childhood have later felt it to have been a mutilation and would never have agreed to it as adults."[93] Deutsche Welle reported that an "indeterminate" 'option' was made available for the birth certificates of intersex infants with ambiguous genitalia on 1 November 2013.[93] The move is controversial with many intersex advocates in Germany and elsewhere suggesting that it might encourage surgical interventions, or simply fails to address the key health concerns of intersex people.[93][94][95][96] On 21 January 2015, the CelleCourt of Appeals confirmed in a judgment[97] that intersex people cannot obtain a gender marker other than "female" or "male" in their birth certificate, but only the absence of any such marker. The court held at the same time that even an adult intersex person who was registered with a gender marker at birth can obtain the deletion of that gender marker. This judgment was sent for review by the Federal Court of Justice.[98]

On 8 November 2017, the Federal Constitutional Court released a press statement about its ruling from 10 October 2017, which is in favor of a positive third gender option instead of no entry.[99] The ruling demands a third gender option to be introduced by 31 December 2018. It decisively points out that a third gender option must be based on gender identity, rather than biological sex, to be in conformance with the general right of personality of German basic law (Grundgesetz). They also recommend that it should be a single option besides male and female, which should include all gender identities that are neither male nor female. The exact wording is still to be determined, "divers" being one possible option that is mentioned, but this choice is left to the legislator.[100]

India[edit]

See also: Transgender rights in Tamil Nadu

The Hijra of India are probably the most well known and populous third sex type in the modern world – Mumbai-based community health organization The Humsafar Trust estimates there are between 5 and 6 million hijras in India. In different areas they are known as Aravani/Aruvani or Jogappa. Often (somewhat misleadingly) called eunuchs in English, they may be born intersex or apparently male, dress in feminine clothes and generally see themselves as neither men nor women. Only eight percent of hijras visiting Humsafar clinics are nirwaan (castrated). Indian photographer Dayanita Singh writes about her friendship with a Hijra, Mona Ahmed, and their two different societies' beliefs about gender: "When I once asked her if she would like to go to Singapore for a sex change operation, she told me, 'You really do not understand. I am the third sex, not a man trying to be a woman. It is your society's problem that you only recognize two sexes.'"[101] Hijra social movements have campaigned for recognition as a third sex,[102] and in 2005, Indian passport application forms were updated with three gender options: M, F, and E (for male, female, and eunuch, respectively).[103] Some Indian languages such as Sanskrit have three gender options.

In November 2009, India agreed to list eunuchs and transgender people as "others", distinct from males and females, in voting rolls and voter identity cards.[104] On April 15, 2014, the Supreme Court of India recognized a third gender that is neither male nor female, and as a class entitled to reservation in education and jobs, stating "Recognition of transgenders as a third gender is not a social or medical issue but a human rights issue." This verdict made India one of the few countries to give this landmark judgment.[105][106]

In addition to the feminine role of hijras, which is widespread across the subcontinent, a few occurrences of institutionalized "female masculinity" have been noted in modern India. Among the Gaddhi in the foothills of the Himalayas, some girls adopt a role as a sadhin, renouncing marriage, and dressing and working as men, but retaining female names and pronouns.[107] A late-nineteenth century anthropologist noted the existence of a similar role in Madras, that of the basivi.[108] However, historian Walter Penrose concludes that in both cases "their status is perhaps more 'transgendered' than 'third-gendered.'"[109]

In April 2014, Justice KS Radhakrishnan, of Supreme Court of India declared transgender to be the third gender in Indian law, in a case brought by the National Legal Services Authority (Nalsa) against Union of India and others.[110][111][112] The ruling said:[113]

Seldom, our society realizes or cares to realize the trauma, agony and pain which the members of Transgender community undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex. Our society often ridicules and abuses the Transgender community and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are sidelined and treated as untouchables, forgetting the fact that the moral failure lies in the society's unwillingness to contain or embrace different gender identities and expressions, a mindset which we have to change.

Justice Radhakrishnan said that transgender people should be treated consistently with other minorities under the law, enabling them to access jobs, healthcare and education.[114] He framed the issue as one of human rights, saying that, "These TGs, even though insignificant in numbers, are still human beings and therefore they have every right to enjoy their human rights", concluding by declaring that:

  1. Hijras, Eunuchs, apart from binary gender, be treated as "third gender" for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature.
  2. Transgender persons' right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.[113]

Nepal[edit]

See also: LGBT rights in Nepal

On December 27, 2007, the Supreme Court of Nepal issued a decision mandating that the government scrap all laws that discriminated based on sexual orientation and/or gender identity and establish a committee to study same-sex marriage policy.[115] The court also established a third-gender category.[115]Nepalese official documents afford citizens three gender options: male, female, and "others".[115] This may include people who present or perform as a gender that is different from the one that was assigned to them at birth.[115] Nepal's 2011 census was the first national census in the world to allow people to register as a gender other than male or female.[115] The 2007 supreme court decision ordered the government to issue citizenship ID cards that allowed "third-gender" or "other" to be listed.[115] The court also ordered that the only requirements to identify as third-gender would be the person's own self-identification.

“Legal provisions should be made to provide for gender identity to the people of transgender or third gender, under which female third gender, male third gender and intersexual are grouped, as per the concerned person’s self-feeling[116]

More recent material indicates that this third option is not available to intersex persons.[117]

New Zealand[edit]

Further information: Intersex rights in New Zealand and Transgender rights in New Zealand

Birth certificates are available at birth showing "indeterminate" sex if it is not possible to assign a sex. The New Zealand Department of Internal Affairs states, "A person’s sex can be recorded as indeterminate at the time of birth if it cannot be ascertained that the person is either male or female, and there are a number of people so recorded."[118]

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