One of the roles that set aside Paresh Rawal as an exceptionally talented actor was that of Tikku, a hijra who adopts and brings up an abandoned girl child Tamanna, played by Pooja Bhatt in the 1998 movie of the same name. Danish Sheikh, who works with the Alternative Law Forum, Bengaluru, mentions the movie as we discuss whether or not members of the third sex have the right to adopt a child in India.
“The current adoption Act accounts for adoptions by either a male or a female. There is no provision for third-sex adoptions. There is a legal vacuum. Perhaps there has never been a debate on this until now because within the hijra community, adoption has a very different meaning. It is usually collective in nature and the child belongs to all in a hamam. This nuclear family concept is not a norm within the community,” he says.
Danny is not a hijra; he is a transgender. Born female, Danny is currently in transition and identifies himself as a man. He is also the father of four-year-old Tenzing, whom he adopted two years ago as a single mother. She calls him “Papi”.
According to www.lawyers collective.org , the Nalsa judgement has affirmed the Constitutional rights and freedoms of transgender persons, including those who identify as third gender and those whose gender identify is different from their biological sex, i.e., persons assigned female gender at birth identifying as man, and vice-versa. By recognizing diverse gender identities, the Supreme Court has broken the binary gender construct of “man” and “woman” that has pervaded Indian law.
The court observed that “the gender to which a person belongs is to be determined by the person concerned”. Yet Danny does not know what will happen to Tenzing once his transition is complete. Already on hormone therapy, Danny plans to undergo upper-body surgery later this month.
“When we got her home, she did not speak a word for almost a month. We thought she was upset and I even called the agency to tell them about this. It’s only later that we all realized that it was a language issue. My sister had taken her to the mall while I was at work and there was a song playing in a North-East language and she started singing along. Then we spoke to her through signs and now that she has learnt Hindi and English, we cannot get her to stop chattering,” says Danny, urging Tenzing not to roam around the house without her socks.
“I knew I was different by the time I was 13-14. I would never have a straight marriage, because I was not attracted to men and so adoption would be the only way for me. Yes, I had thought about adopting a child as early as that,” says Danny, 44.
It took four years for Danny to discuss how he felt about his gender with his family. “I was around 18 when I gathered the courage to talk to my mother. I took her to the terrace of our house and told her I wanted to get a sex-change operation. She is not very educated. She has always been very supportive and practical but she just could not understand what I was talking about. I am the middle child and have older and younger siblings and I had to tell her that not only chronologically am I the middle child but sach mein beech ka hoon (I am truly a middle person).”
His mother co-opted Danny’s elder sister to deal with the situation. “My sister did not ask me anything directly, but she did convey in her own way that this is not a good thing, that there is a lot of risk involved. She kept telling me this over the years...it was not a one-time conversation,” he explains.
On his part too, he did not know too much about the transition and what it involved. “I had only read some porn magazines and figured that sex-change operations were possible, but how exactly I was unsure about for a very long time. In fact it was only at 22-23 years that I understood who gays and lesbians were, and from then on it was easier just to be a lesbian rather than talk about the sex change and transition again.”
Six years on, when Danny was 28, and his family had started accepting his lesbian status, the idea of adoption came up again. “My sister was supportive and told me repeatedly that if and when I wanted to adopt, she would take care of the baby, and I could continue to work. But I hesitated because I wanted a good female partner with me to help me bring up the child. Besides, I had to also wait because I was still battling with myself and my identity.
“It had taken so long for my family to accept me as a lesbian and I was still unhappy. I knew I was a transgender, but it took me a decade to understand this about myself. I had been spending too much time with lesbians and ignoring what I really felt about myself. Also, I did not want to shock my family further.”
It was only in 2009, after Danny, as a woman, entered a civil partnership in the UK with her current lesbian partner, that the work on adopting a child really started in earnest. “We worked together, sent lots of mails, my sister agreed to be the guardian in case something happened to me because my current partner cannot legally adopt in India. Two years later, Tenzing came home. The day before she came, I went to the Iskcon temple near my house and wept like I have never done before. Now, I send quarterly reports about her progress at home and at school to her case worker,” says Danny.
Olga Aaron, a transwoman and a child rights activist based in Chennai, says transgenders had no recourse till now and, in many cases, had to identify themselves as a male or a female for everything, whether it was an application for a passport, a college, or a job. “We have always had this binary model. There is no legal clarity on what can happen in such a case. If this is indeed a legal adoption, then at the policy level and at the law-making stages, such cases should be discussed and provisions made,” she says.
Sheikh agrees: “It is already difficult for single people of any sex to adopt a child with the regulations becoming stricter. But this does not mean that we should not start thinking about giving transgenders the right to opt for legal adoptions, even those who want to transition or change their sex eventually.”