Law, gender identity, and the uses of human rights: The paradox of recognition in South Asia

Abstract

South Asia abounds with diverse gender identities that vary regionally based on religion, language, and cultural practices. Transgender rights activists have successfully deployed human rights rhetoric in order to obtain legal recognition of diverse gender identities from courts. However, the collapsing of these diverse identities and practices into a single category, under the transgender umbrella, by governments and judiciaries has created complex mechanisms for legal recognition of transgender persons. Simultaneously, international human rights principles are being invoked to win victories at the national level, which in turn offers insights into the dynamic interplay between law, activism, and human rights. In this article, we outline the constraints and opportunities presented by the changes in legal recognition of diverse gender identities across South Asia. We argue that the uses of international human rights statutes in national-level legal and judicial deliberations about recognizing transgender persons across South Asia offer limited opportunities, and mostly delimit access to formal citizenship, the very objective these laws seek to achieve. Simultaneously, this moment of wrestling with the limits of law, while continuing to demand full recognition from individual states, has given rise to cross-border mobilizations of a vibrant transgender rights movement. Such mobilizations reveal how diverse transgender activists are reinterpreting human rights principles in order to create coalitional multi-issue trans/justice movements throughout South Asia.

Acknowledgments

We are grateful to Shareen Hertel and Cathy Buerger for inviting us to be part of this special dialogue/symposium, and for their collegiality and patience. Gratitude to the anonymous reviewers of the Journal, and to Oishik Sircar and Sagnik Dutta for their close readings of the draft. This article has benefited immensely from their comments. We would like to thank Kavya Kartik, Krithika Balu, and Aaditi Pradeep for their research and editorial assistance. Dipika Jain would like to thank the JGU Research Committee and Dr. C. Rajkumar, O.P. Jindal Global University for their constant support. Debanuj Dasgupta acknowledges the Social Science Research Council for the Junior Scholar Award in Transregional Studies: Inter-Asian Contexts and Connections which facilitated extensive field work between 2018-2019 in South Asia. We do not intend to speak on behalf of Transgender, Gender-Diverse, Intersex movements or activists in India. This article is written from our location and training of academics. We continue to learn and draw inspiration from our personal interactions and writings of friends, activists and scholars in the Trans Movements.

Notes

1 While the term “LGBTI” is used in Nepal, Pakistan and Bangladesh have seen legal developments largely in the realm of “transgender” rights only. Social movements in India have focused on, and brought legal change for, gender as well as sexual minorities. However, the struggle for transgender rights in India cannot be conflated with or subsumed under a larger “queer rights” struggle; while there are overlaps, they are also two distinct movements. We use “queer” in this piece to mean an identity, a politics, and a form of critique. While it is used sometimes interchangeably with “LGBTI,” we also offer a critique of the liberal human rights discourse. However, we recognize that “queer” does not apply universally, and we are mindful of the varying terminologies across South Asia that we cannot capture here. Hence, we use “queer” as a temporary placeholder, where possible, throughout the piece.

2 The Yogyakarta Principles 2007 are internationally accepted applications of the Universal Declaration of Human Rights Principles to gender identity and sexual orientation. They were drafted by “distinguished experts from 25 countries with diverse backgrounds and expertise relevant to issues of human rights law” in Yogyakarta, Indonesia. The English text is available at http://yogyakartaprinciples.org/wp-content/uploads/2016/08/principles_en.pdf [18 May 2020].

3 We use “transgender” in this piece, cognizant of the fact that it is a Western term and does not adequately cover all gender-diverse identities in South Asia. Later in this piece we advance a critique of this.

4 We understand “South Asia” both in geographical terms and in cultural, political, and linguistic terms. However, we also acknowledge that South Asia is not a homogeneous entity and that the queer movements within the region (specifically in Pakistan, India, Nepal, and Bangladesh) have their own histories and cannot all be analyzed through the same lens.

5 The terms “queer” and “LGBTQIA+” are not used interchangeably. As stated by Narrain and Bhan (2005) the term “queer” goes beyond sexuality, complicated by “class, caste and community identity,” and queer politics itself does not try to be universal in nature, including all sexual identities within its umbrella purview. LGBTQIA+, however, as a term, includes sexual and gender identities within its scope, without the complexities of class, caste, religion, and other identities subsumed within the acronym.

6 For a detailed discussion of the Supreme Court decision and the constitutional recognition of LGBT people in Nepal, see https://www.hrw.org/news/2017/08/11/how-did-nepal-become-global-lgbt-rights-beacon [18 May 2020].

7 For more about the decision, see https://www.icj.org/sogicasebook/khaki-v-rawalpindi-supreme-court-of-pakistan-12-december-2009 (Supreme Court of Pakistan 2009).

8 The Navtej Johar judgment is the culmination of a 24 year long litigation to decriminalize consensual sodomy. A petition to repeal Section 377 of the Indian Penal Code was first filed in the Delhi High Court in 1994. After interventions by several activists and civil society organizations, the Court in 2009 held that Section 377 was unconstitutional. The Supreme Court in 2013 overruled this decision, effectively recriminalizing consensual sodomy in the Suresh Kumar Koushal v. Naz Foundation decision. Finally, in 2018, the Supreme Court heard a new batch of petitions filed by queer activists and upheld the 2009 decision of the Delhi High Court, reading down Section 377 insofar as it pertained to consensual sodomy between adults.

9 These articles guarantee to all persons the right to equal protection of laws, proscribe discrimination on the grounds of race, sex, caste and the like, and provide for the abolition of discriminatory laws and for securing of social justice. The Interim Constitution was replaced by Constitution of Nepal in 2015, which contains similar fundamental rights provisions in Part 3. The Constitution is available to read in English at http://www.lawcommission.gov.np/en/archives/category/documents/prevailing-law/constitution/constitution-of-nepal (Supreme Court of Nepal 2007).

10 The “medical model” constructs gender nonconformity through the psychiatric diagnosis of “Gender Identity Disorder” (revised to Gender Dysphoria in the DSM-5); it is based on the presumption that only two genders exist but some individuals experience severe discomfort with their gender and should therefore be entitled to transition into the “other” gender. See Romeo (2005), explaining the medical and biological models—two discourses that have emerged in legal examination of claims brought by gender diverse individuals. See also Reicherzer (2008), charting the history of the “Western medical model,” which emerged in the early 20th century, beginning in Western Europe and moving to North America. Formal classifications of gender diverse identities started in the 1920s, first in London, where doctors performed “genital reassignments” out of fear that the individuals would self-mutilate if the surgeries were not done. Over the next two decades, Hirschfeld’s institute in Berlin did much experimentation with similar reassignment procedures. From the late 1940s onward, sexologists and psychiatrists would begin to treat gender nonconformity as a psychological disorder, and by the 1950s, the American medical community became quite involved in the “scientific inquiry of transsexualism” and in classifying it as a psychological “disorder” or mental illness.

11 The term “eunuch” generally refers to castrated men—a pejorative used to describe hijras that has been rejected by transgender individuals and groups. As transgender activist Akkai Padmashali stated, “We oppose this usage. The word eunuch has to be removed from the books of advocacy” (Satyanarayana 2016). While translating Hindu texts into English during colonial rule in India, the process—having passed texts through a British social, political, and moral filter—resulted in the creation of a new category, “eunuchs” (Jain 2017: 46; referring to Bernard S. Cohn [1996], Colonialism and Its Forms of Knowledge: The British India). Colonial officials also introduced laws that deemed all hijras as criminals who were “addicted to sodomy, worked as prostitutes and kidnapped and forcibly castrated children” (Hinchy 2017; Semmalar 2014).

12 From the time when initial versions of the bill were presented to the public, trans-led groups and individuals have made written recommendations stating that reservations must be included in the bill. A consolidated response from the trans and intersex communities (available on the Orinam website) explicitly notes that the lack of a provision for caste-based reservations is a major lacuna in the 2016 bill. Signatories to this statement are Nirangal, Orinam, Sampoorna Working Group, and Telangana hijra Intersex Transgender Samithi. The response is available at http://orinam.net/content/wp-content/uploads/2016/08/Community-Response-to-TG-Bill-20161212pm_Monday_Aug81.pdf (Orinam 2016).

13 The Rules drafted pursuant to the Act, after much push back from the Trans movement regarding the requirement of surgery, allow for a formal recognition of gender change if the applicant undergoes a “medical intervention”.

14 Governance feminism is described as “the incremental, but now quite noticeable installation of feminists and feminist ideas in actual legal-institutional power” by Halley et al. (2006), and as the inserting of “feminist knowledge, technique and practice into institutional contexts” (Iyer 2016).

15 Kapur notes that for queer advocacy in the international human rights arena, the interventions have often moved toward “normalizing” gender and sexuality due to the “assimilative and normative gravitational pull of human rights.” The radical potential of queer advocacy, in delinking gender and sexuality from normative categories, has been stripped away through its inclusion in human rights discourses.

16 Saffronization has been described as a part of a “distorted lexicon” perpetuated by media outlets to describe “anything done by the votaries of the Bharatiya Janata Party or the Sangh Parivar” in terms of right-wing policies that impose a Hindu nationalist agenda upon Indian history and culture.

17 Dave describes these as a commitment to a philosophical exercise to think differently and ask questions; an emphasis on the “imaginative labor of inventing heretofore unimaginable possibilities” (Dave 2012: 8); a distancing from institutional power that serves to create possibilities for multiple affective and relational forms.

18 Many Mapuche women resist the monolithic and Western notion of “gender” and have questioned its uniform application, which lumps them into the same category as non-Mapuche women.

19 See interview with activist Raina Roy on the limits of the transgender bill of rights in India. The interview is available at https://freedomnews.org.uk/interview-raina-roy-on-the-fight-against-modis-anti-trans-bill [18 May 2020].

20 Dona Marven shared her testimony with Kumam Davidson, and it can be read here: https://thechinkyhomoproject.wordpress.com/2018/11/01/a-transowomans-life-journey-in-shillong-dona-marven [22 May 2020].

Additional information

Notes on contributors

Dipika Jain

Dipika Jain is Professor of Law, Vice Dean (Research) and the Executive Director of the Center for Health Law, Ethics and Technology (C.H.L.E.T.) at Jindal Global Law School (JGLS), India.. Her research was recently cited by the Supreme Court in the landmark decision of Navtej Johar v. Union of India (2018) and has been published in dozens of journals, law reviews, and compendia internationally. She is coeditor of Desire and its Discontents: Queer Politics in Neoliberal India (forthcoming, Zubaan and Chicago University Press) and has consulted for the UNDP; Center for Reproductive Rights (New York); and IPAS Development on Reproductive Justice.

Debanuj DasGupta

Debanuj DasGupta is Assistant Professor of Feminist Studies at the University of California at Santa Barbara. DaGupta is also coeditor of Friendship As Social Justice Activism: Critical Solidarities in Global Perspective (University of Chicago Press) and Queering Digital India: Activisms, Identities and Subjectivities (University of Edinburgh Press). The author of articles in multiple journals (including Disability Studies Quarterly; Contemporary South Asia; SEXUALITIES), DasGupta’s work is informed by over sixteen years of professional activity in development, HIV/AIDS, LGBT rights and immigrant rights organizations in India and the US.