( 2 ) The Dharma Shastra
The Bhavisya Purana states that the Dharma Shastra or scriptures dealing in religious law and behavior were originally transmitted from Lord Brahma to Manu at the beginning of the creation and later abridged into four smaller texts by the sages Bhrgu (Manusmriti), Narada (Narada-smriti), Brhaspati, Angiras, and others. The Manusmriti is the most prominent of these texts and also known as the Manu Samhita. Its present written form is dated approximately to the third century B.C. but was orally transmitted for many thousands of years before that. The Narada-smriti is lesser known and especially relevant to our study of the third sex since it contains explicit definitions of the fourteen types of panda or “men who are impotent with women.” The current written text is dated to the first century B.C. and was particularly prominent in northeastern India and Nepal. The Narada-smriti influenced early Buddhist concepts regarding the third sex and can be traced as far eastward as Vietnam, wherein twelfth-century inscriptions from the Kingdom of Champa mention a dignitary in the court of Jaya Harivarman I said to have been a great scholar of the text. Other Dharma Shastra texts include the Visnusmriti, Yajnavalkya-smriti and various Dharmasutras composed by Vasistha, Apastambha, Gautama and Baudhayana. The written Dharmasutras are similar or even older in date to the Manusmriti but mostly consistent in their approach. Injunctions regarding third-gender citizens are summarized in the sections below.
Defining the Third Sex: The first reference to the third sex in the Manusmriti states: “As a third-gender man is unproductive with women…so also is a brahmana useless who does not know the Vedas” (2.158). The second reference describes the third sex as inborn:
A male child is produced by a greater quantity of male seed, a female child by the prevalence of the female; if both are equal, a third-sex child (napumsa) or boy and girl twins are produced; if either are weak or deficient in quantity, a failure of conception results.
This verse is highly significant and repeated throughout the Vedic canon. It establishes the third sex as an inborn nature rather than an adopted vice or crime and subsequently all laws within the Dharma Shastra regarding third-gender citizens are based upon this premise. The term “seed” refers to the male and female reproductive fluids and hormones known as sukra and sonita, respectively. Similar verses are found throughout Vedic literature; for instance, in Chapter 48 of the Brahmanda Purana it is stated: “At the time of conception, if the woman’s vaginal fluids exceed the amount of semen the child will be female; if the semen exceeds, then it will be male. If both are equal in quantity the offspring will be of the third sex.”
The next question is: What exactly is a napumsaka or third-gender person? The Manusmriti does not provide this answer but the Narada-smriti gives us a clue—out of the fourteen types of third-gender men listed as panda, seven are declared incurable: the nisarga, vadhri, irshyaka, sevyaka, vataretas, mukhebhaga and anyapati. In regard to these it is important to note that all seven are either clearly or possibly homosexual, transgender or intersex and that only the first (nisarga) would be recognizable at birth. The third sex is thus often known as “the hidden sex” because it is commonly not identified until later in life.
Richard W. Lariviere’s translation of Narada’s text (The Naradasmrti, 2003) interprets three types of panda somewhat differently from those mentioned in this book. Lariviere translates sevyaka as “homosexual,” vataretas as “one who ejaculates prematurely,” and aksipta as “one who cannot ejaculate.” In regard to the sevyaka as homosexual, this definition is put forward by Bhavasvamin, an important eighth-century A.D. commentator on this text. The Narada-smriti also mentions several clues for testing a pandaka such as examining his physique, gait and voice for masculine traits, seeing that his discarded semen sinks in water and observing his urination as noisy and foamy (12.8-10). In Lariviere’s notes on the testing of prospective grooms for impotence, he writes: “I translate the term pandaka as ‘impotent’ rather than the conventional term ‘eunuch.’ A eunuch would be easily identifiable by a simple physical examination. The term must be taken to mean, broadly, a male who is unable to impregnate a woman.” Herein Lariviere recognizes that the term “eunuch,” as understood today, is not sufficiently broad enough to convey the true meaning of a panda. It should also be noted that, based on the different types of panda described in the Narada-smriti, testing for male impotence would necessarily include not only a physical examination of the man’s anatomy but also a study of his interaction with women. Such a study using women is curiously absent from the Narada-smriti although it is clearly given priority in other Vedic accounts of the procedure.
Besides Lariviere, other modern scholars are also beginning to reexamine and revise the traditional English translations of Sanskrit third-gender terms. To cite an additional example, author Patrick Olivelle (Dharmasutras: The Law Codes of Apastamba, Gautama, Baudhayana and Vasistha, 2000) defines shandha as “a man whose sexual organs are lacking or have been removed” and kliba as “an impotent or effeminate man.” While these definitions are somewhat simplistic it is nevertheless encouraging to see modern authors reevaluating third-gender terms and discarding the older, archaic interpretations.
Absence of Punishment For the Third Sex: Because the Dharma Shastra considers the third sex to be an inborn nature rather than an acquired vice, no verses punish third-gender citizens for their characteristic behavior. No laws penalize third-gender men for refusing to marry women or conceive children (quite the contrary) and no laws punish crossdressing, male prostitution, private homosexual behavior, etc. A few ordinances admonish homosexual behavior among brahmanas, twice-born men and unmarried girls but only mildly or under specific circumstances. This attitude contrasts greatly with Western religious codes that misidentify cross-gender behavior as an acquired vice and punish it severely, even up to death. Indeed, the Dharma Shastra texts verily forbid a king from using his weapon against a third-gender man or kliba (Yajnavalkya-smriti 1.326) and declare that he must never beat or even fine such a person (Narada-smriti 15.14-15).
Laws Admonishing Homosexual Behavior Among Brahmanas and Unmarried Girls: As previously mentioned, the Manusmriti declares homosexual intercourse involving brahmana or twice-born males (pums) to cause loss of caste unless atoned for by a ritual bath (11.68, 175). These are the only statements in the Dharma Shastra explicitly admonishing homosexual behavior among men. In regard to women, the Manusmriti’s only concern is with the violation of young, unmarried girls; typically aged eight to twelve years in Vedic times. A fine of two hundred panas (small copper coins) plus double the wedding fee, along with ten lashings, is prescribed for sexual penetration between two unmarried maidens. If an adult woman is the violator, her head is shaved or two fingers are cut off and she is made to ride through town on a donkey (8.369-370). The same punishment of amputation is prescribed for men violating young girls and there are no prohibitions against homosexual relations between adult women. The Narada-smriti, Yajnavalkya-smriti and Dharmasutras offer no specific injunctions against male or female homosexual behavior whatsoever.
Several verses in the Dharma Shastra admonish brahmanas, priests and twice-born men that engage in viyoni or ayoni sex. Viyoni sex refers to intercourse in a “base vagina” such as with a sudra woman, a prostitute or a female animal, whereas ayoni sex refers to “non-vaginal” methods of intercourse including using one’s hand, the mouth of another, the thighs, the anus, etc. The Apastambha (1.26.7), Gautama (25.7), Baudhayana (3.7.1-7; 4.1.19; 4.2.13) and Vasistha Dharmasutras all admonish snatakas or purified brahmanas who engage in viyoni or ayoni sex. If these codes are violated, atonements are prescribed that include taking a ritual bath, fasting, or reciting prayers. The Narada-smriti (12.75) offers fines of one hundred to five hundred panas as an alternative to such atonements whereas the Yajnavalkya-smriti (293) offers a smaller amount of twenty-four panas. Brahmanas and twice-born men who habitually break these religious codes lose their brahminical or twice-born status (Gautama Dharmasutra 21.1).
Laws Prescribing Castration: Male castration is occasionally mentioned in the Dharma Shastra as a punishment for heterosexual crimes involving adultery and rape. The Manusmriti (8.374) and Gautama Dharmasutra (12.2) recommend castration for a sudra who has intercourse with an unguarded woman of a higher varna while the Narada-smriti (12.72-74) prescribes the same for a non-brahmana who pollutes various types of respectable women. The Apastambha Dharmasutra (26.19-20) ordains castration when a young man rapes another man’s wife or an unmarried maiden. Voluntary castration is suggested as the atonement for a brahmana who violates the wife of his guru or some other elder. The Manusmriti (11.104-105) and Yajnavalkya-smriti (259), as well as the Gautama (23.9-10), Baudhayana (2.1.13-15) and Vasistha (20.13) Dharmasutras, all enjoin such a brahmana to either embrace a red-hot idol of a woman or cut off his male organs, hold them in his palms and walk toward the southwest until death.
No injunctions in the Dharma Shastra prescribe castration for third-gender men and there are no accounts of castration as a voluntary practice among the same. The Narada-smriti (12.12) defines the vadhri as “a man whose testicles have been cut out” but offers no description of such men or why they have been castrated. The earliest Sanskrit reference explicitly linking third-gender men to castration—the fourteenth-century A.D. Smriti-ratnavali’s definition of a shandha—comes to us well after the arrival of Islamic influence in India.
Impotence and Marriage: The Manusmriti is silent on the topic of marrying impotent or third-gender men to women but other Dharma Shastra texts clearly forbid it. The Narada-smriti in particular prohibits the marriage of homosexual and other types of impotent men to women (12.14-18) and allows a woman to reject any suitor or husband lacking male virility (12.37, 97). It presents clear guidelines for testing the potency of men and identifies the fourteen types discussed earlier. The Yajnavalkya-smriti (1.55) similarly states that the potency of a bridegroom should be “well tried” prior to marriage and the Vasistha (17.20) and Baudhayana (2.3.27) Dharmasutras provide one of the definitions of a remarried woman as “she who leaves an impotent husband (kliba) to marry another man.” The Baudhayana Dharmasutra mentions that the wife of an impotent husband may, with his permission, get another man to impregnate her with a son; in such cases, both men are considered legal fathers to the boy (2.3.17-18). Regarding infertile women, the Baudhayana Dharmasutra declares that a man may dismiss his wife if she does not bear him a child after ten years of marriage (2.4.6).
The eight types of Vedic marriage or vivaha are listed and defined in the Manusmriti (3.20-34) as follows:
1) Brahma—the father gives away his daughter, covered with costly garments and jewels, to a learned man of good conduct.
2) Daiva—the father gives away his daughter, decked with ornaments, to a priest officiating at a sacrifice.
3) Arsha—the father gives away his daughter to the groom after receiving a cow and a bull, or a pair of either, from him.
4) Prajapatya—the father gives away his daughter as a gift and blesses the new couple after showing honor to the groom.
5) Asura—the groom receives the maiden after voluntarily giving as much wealth as he can afford to her and her family.
6) Gandharva—the maiden and her lover unite voluntarily, spurred on by their desire for sexual intercourse.
7) Rakshasa—the maiden is forcibly kidnapped from home after her family has been killed or wounded in battle.
8) Pisacha—the maiden is secretly violated and raped while asleep, intoxicated, disabled, etc.
The Manusmriti considers the first six of these lawful for a brahmana and the last four for a ksatriya. The same last four, with the exception of the seventh, are permitted for a vaishya and a sudra (3.23). The Baudhayana Dharmasutra (1.20.10) considers only the first four lawful for a brahmana but then states: “Some commend the gandharva form of marriage for all, because it flows from love” (1.20.16).
Verses throughout the Dharma Shastra extol marriage, procreation and child rearing but also point out their illusory nature in favor of renunciation. To cite one example, the Apastambha Dharmasutra provides two interesting quotes in regard to not desiring offspring:
The eighty thousand seers who desired offspring went along the sun’s southern course. They obtained cremation grounds.
The eighty thousand seers who did not desire offspring went along the sun’s northern course. They, indeed, attained immortality.
(Apastambha Dharmasutra 23.4-5)
Varnasrama-Dharma: The Vedic system of varnasrama-dharma or social organization according to occupation (varna) and order of life (asrama) is promoted throughout Vedic literature but especially in the Dharma Shastra. The word varna is often misinterpreted as “caste” or “occupation by birth” in English but the ultimate criterion for both varna and asrama is factual qualification, not birth. The modern-day caste system of India, based on birth alone, is a perversion of the original Vedic system and known as demonic or asura-varnasrama. Divine or daiva-varnasrama, on the other hand, is God-centered and based on a person’s true qualifications and nature regardless of birth. To summarize, the four divisions of varna are as follows:
1) Brahmana—priests, teachers and advisors who are truthful, self-controlled and learned.
2) Ksatriya—administrators, officers and soldiers who are strong, heroic and able to lead.
3) Vaishya—merchants, bankers and agriculturalists who are resourceful, efficient and enterprising.
4) Sudra—servants, laborers and craftsmen who are humble, industrious and loyal.
The four divisions of asrama or orders of life are:
1) Brahmacarya—student life.
2) Grhastha—householder or married life.
3) Vanaprastha—retired life.
4) Sannyasa—fully renounced life.
In Vedic culture, brahmanas are educated in the scriptures and trained to uphold higher moral standards. They receive initiation or diksa into the chanting of sacred mantras and are thus considered “twice born” or dvija. Ksatriyas and vaishyas may also undergo such training if they are qualified but sudras generally do not. Thus sudras, as well as uninitiated ksatriyas and vaishyas, are not held to the higher brahminical standards outlined in the Dharma Shastra. Regarding citizens of the third sex, under the daiva-varnasrama system they can adopt any of the above occupations or orders they are qualified for. Under the asura-varnasrama system, however, such people are excluded from these and forced to live as social outcastes. This latter policy is especially prominent in Kali Yuga and based upon bodily prejudice.
Legal Codes Specific To the Third Sex: Both the Manusmriti (9.201) and Narada-smriti (13.20) exclude men of the third sex from receiving family inheritance, due to their lack of progeny. If they “somehow or other” manage to take wives and have children, however, the Manusmriti states that the children in such cases are entitled to a share (9.203). Either way, the family is required to provide maintenance to their third-gender offspring in accordance with their income (9.202). These same injunctions are repeated in the Yajnavalkya-smriti (2.140-141) and the four Dharmasutras: Apastamba (2.14.1), Gautama (28.43), Baudhayana (2.3.37-38) and Vasistha (17.53-54). The Vasistha Dharmasutra further states that a king should maintain third-gender citizens with no family because their estates go back to him after their demise (19.35-36).
The Narada-smriti (1.159-171) prohibits people of the third sex, along with countless other types, from testifying in court for minor but not major offenses. It also forbids third-gender citizens from undergoing the holy water ordeal as a test of innocence at trials (20.45). In the holy water ordeal, an accused twice-born man drinks bath water from the temple deity and if anything unusual happens to him within two weeks his guilt is revealed. The Narada-smriti also states that people considered impure by smarta standards—the uninitiated, their wives, impotent men, the crippled, elephant drivers, butchers, outcastes—should be beaten if they violate customary rules or offend virtuous men. They should not, however, be beaten by the king himself or ever fined (15.12-15).
Smarta-Dharma: Smarta-dharma refers to the countless rules and regulations followed by smarta-brahmanas (ritualistic priests) and snatakas (purists). In regard to these, the Manusmriti prohibits people of the third sex, along with many other types, from receiving sraddha offerings from the forefathers and ancestral gods (3.150, 165). It also discourages smarta-brahmanas and snatakas from receiving meals or attending sacrifices offered by such people (4.205, 206). The Yajnavalkya-smriti (1.223) similarly prohibits third-gender men from performing sraddha ceremonies and the Gautama (15.16) and Vasistha (11.19) Dharmasutras discourage snatakas from inviting or even feeding third-gender men at such events. These smarta injunctions are based on the idea that third-gender men and women do not appease their forefathers or ancestral gods by producing progeny.
The Manusmriti (4.211) further enjoins smarta-brahmanas not to accept food offerings from the third sex, as does the Yajnavalkya-smriti (1.161) and the Apastamba (1.18.27, 1.19.14), Gautama (17.17) and Vasistha (14.2, 19) Dharmasutras. The Yajnavalkya-smriti (1.215-216) and Vasistha Dharmasutra (14.12-13) prohibit snatakas from accepting gifts from the third sex (shandha) unless they are used for deities, guests, elders, servants or the snatakas themselves. A verse from the Vasistha Dharmasutra (12.31) prohibits a snataka from eating in the company of his wife because otherwise “his children will lack manly vigor.” In a chapter on atonement, the Manusmriti (11.134) states that a brahmana causing the death of a third-gender animal (shandha) should atone for it by giving away a load of straw and masa (0.61 grams) of lead. This same atonement is cited in the Gautama Dharmasutra (22.23) whereas the Yajnavalkya-smriti prescribes giving away brass metal (3.273). According to the eleventh-century A.D. commentator, Haradatta, a “third-gender animal” especially refers to castrated beasts such as oxen.
Vaishnava-Dharma: According to vaishnava-dharma, most of the strict rules and regulations cited above can be disregarded because they consider only a person’s material body and not their moral or devotional qualifications. Furthermore, injunctions that interfere with a person’s worship of God can be rejected immediately. Vaishnava saint Srila Bhaktivinoda Thakura expresses this important point in his book, Jaiva Dharma (1896), as follows:
[A Vaishnava] never adheres blindly to the rules and prohibitions of the sastras [scriptures]. He accepts the instructions of the sastras graciously, but only when they are favorable to his practice of hari-bhajana [worship of God]. When they are unfavorable, he immediately rejects them.
(Jaiva Dharma, p. 54)
To put the above-cited smarta-dharma injunctions into context, the same texts prohibit snatakas from accepting gifts or foodstuffs presented by kings, mayors, tax collectors, sudras, dark-skinned races, foreigners, non-Aryans, goldsmiths, money lenders, weapons dealers, spies, physicians, carpenters, artisans, performers, musicians, actors, basket weavers, tailors, laundrymen, cloth dyers, leather workers, hunters, dog trainers, blacksmiths, menstruating women, unchaste females, prostitutes, outcastes and numerous other types in addition to the third sex (Manusmriti 4.205-221). These people are also deemed unfit to perform or attend sraddha ceremonies (Manusmriti 3.150-168) and are furthermore prohibited from testifying in court for minor offenses (Narada-smriti 1.159-169). Thus it is important to note that only mundane religionists—those on the lowest platform of religious life—indiscriminately follow all of the exclusive policies mentioned in the Dharma Shastra. Liberal-minded Hindus and Vaishnavas automatically transcend such injunctions by viewing everyone equally and inviting all members of society to worship God, receive offerings, present gifts, etc., regardless of body type or class. This is because true Hindu or Vaishnava dharma has nothing to do with a person’s physical body or birth but rather the welfare of the soul.
(Tritiya-Prakriti: People of the Third Sex, pp. 69-79)