A brief note on the Indian Supreme Court’s recognition of transgender rights

After the Indian Supreme Court’s historic ruling to recognize the legal and constitutional rights of transgender citizens, I noticed many people express surprise at the fact that this comes not too long after the same court upheld a colonial-era law making homosexuality a crime. In the United States, at least, social acceptance of the L, G, and B in ‘LGBT’ has generally preceded that of trans individuals, and we take it for granted that justice progresses in this order (and that such justice is linear). I think that underneath the surprise at witnessing the inverse in India lies an assumption that Western gender structures are universal; besides this basic misunderstanding, a knowledge of colonization’s pervasive impact on regimes of gender and sexuality in colonized lands could also lead one to believe that such structures in the Indian subcontinent would more closely follow Western ones (the anti-gay law was an artifact of the British colonial system, after all). However, non-binary gender has already been recognized by the governments of Pakistan, Bangladesh, and Nepal as well, while homosexuality is illegal in all but the last. Although ideals enshrined in law do not necessarily always reflect the views of society or the reality of marginalized groups’ experiences, from these facts we can sense that gender and sexuality may be approached quite differently throughout South Asia as compared to Western societies.

When I heard about the ruling in India and how these rights would not be extended to gays, lesbians, and bisexuals, I was reminded of something I learned not long ago about another country we know to be regressive on the issue—Iran.

In an interview for Guernica Magazine, Sadakat Kadri comments on some of his findings while doing research for his 2012 book on shariʿa jurisprudence from ancient times into the present, across the Middle East and South Asia. He relays one fact of which I suspect most of us are not aware:

Sadakat Kadri: One of things that surprised me when I was in Iran was to find out that the country finances seven times as many sex change operations as the entire European Union. And the reason for that is because Ayatollah Khomeini himself, in the early 1960s, in the same time that he was developing this other idea of an Islamic state, also hit upon the idea that if a person is born into the wrong sex, it was entirely proper for them to change sex.

Mishal Husain: That’s accepted in Islam?

Sadakat Kadri: Ayatollah Khomeini issued a fatwa to that effect, which was then given effect in the Islamic Republic of Iran, so in the Islamic Republic of Iran, it’s flexible enough to allow for sex changes, and it encourages sex changes. One of the points I make in the book is that it encourages the change of sex, but if you want to change your religion in Iran, you’ve got some serious problems. And you know, there are other problems. You’re allowed to change sex, but if you want to be a homosexual, theoretically at least, you face the death penalty.

Thus, in Iran we see a similar situation where homosexuality is illegal—punishable by death—but it is accepted, at least legally, that someone may not identify with their birth-assigned gender and has the right to a sex change. It’s not clear from this quote, and I am not myself aware, how Iran approaches this issue more broadly, e.g. whether non-binary gender is accepted (for those who identify as neither a man nor a woman, and would not want a sex change). And, of course, the social/cultural/religious context in Iran is different than in India and its neighbors; the norm may even be specific to Shiʿa Islam specifically. But it’s another example of what feels to many observers like a reversal of the order by which we expect progress to occur (again, demonstrating the limits of dominant understandings of ‘progress’ and gender across time and space—or, as this PolicyMic piece implies, unsettling claims to moral superiority based on these standards).

To better understand the Supreme Court ruling and its implications for trans Indians, I recommend reading Siddharth Narrain’s analysis over at the blog Kafila: “(En) Gendering a Rights Revolution.” One thing worth noting is the number of identities captured under the umbrella category of ‘transgender’: “those who identify as male to female, female to male, intersexed, and transsexual persons as well as those who identify as hijras, kothis, kinnars, aravanis/thirunangis, jogappas/jogta, shivshakthis and eunuchs.” There has been a tendency in some American media coverage (including the aforementioned PolicyMic piece and this Vox explainer) to conflate ‘hijra’ with ‘transgender’ more broadly, but not all trans individuals in the subcontinent are hijras—as recognized by the ruling.

I’ll conclude with a passage from Narrain’s post, which speaks to some of what I’ve addressed (and indicates the Supreme Court had it in mind as well) and elaborates on the uncertain future ahead:

The most interesting use of comparative law is the court’s reference to recent Supreme Court decisions in Pakistan (Dr. Mohammad Aslam Khaki v Sr Superintendent of Police, Rawalpindi, 2011) and Nepal (Sunil Babu Pant & Ors v Nepal Government, 2007) where these courts in these countries have recognized a third gender category in law. The judges in this case refer to the historical presence of a third gender in the subcontinent. This reference holds out the possibility of developing a unique South Asian jurisprudence on transgender rights that can contribute to the existing international human rights framework.

Again, in stark contrast to the judges in Koushal, the Court observed that the role of the judiciary is not only to decide disputes but also to uphold the rule of law and ensure access to justice to marginalized sections of society, to which transgender persons clearly belong. The court says, “Our Constitution, like the law of society, is a living organism. It is based on a factual and social reality that is constantly changing. Sometimes a change in the law precedes societal change and is even intended to stimulate it. …When we discuss about the rights of TGs in the constitutional context, we find that in order to bring about a complete paradigm shift, law has to play a more predominant role.”

Moments of legal and constitutional change that engender a complete paradigm shift are far and few in between. This is a moment that needs to be celebrated and applauded. It is now up to the legislature and Indian citizenry in general to translate these constitutional norms into laws, policies and regulations. This significant victory has to go hand in hand with a renewed political struggle for transgender rights. If not, the social revolution that this judgment portends will remain a dream etched on legal paper.

I hope to see these aspirations realized.

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UPDATE (05/19): For those interested in how non-binary gender was received in India under British colonialism, I recently found a post from January by Onni Gust, providing a little history on the subject.

Nineteenth-century British travel writers and colonial officials rarely passed on the opportunity to prefix some derogatory hyperbole to the word ‘eunuch.’ Frequently they offered extensive defamation, referring to eunuchs as “the vilest and most polluted beings” and commenting on the “revolting” practices that they imagined, but could rarely prove, eunuchs carried out.

…prior to British dominance in India, hijras were often employed as guardians of the “virtue” of the harem, held ritualistic status as bestowers of fertility and owned land and occasionally high status in Mughal India. For the British, however, they represented all that was debased about Indian society and, in the Criminal Tribes Act of 1871, the hijras were classified as a criminal tribe, inherently immoral and corrupt.

Nineteenth-century British imperial imaginaries took great delight in expressing the terror of, and a morbid fascination with, hijra bodies. Government reports speculate on the details of their rites and practices and the specificities of their castration. Scandalized by the indecency of the very existence of a third gender, colonial discourse performs shock and horror, a pathos that leaks out of otherwise dry, bureaucratic reports. Representing the hijras allowed the British to indulge in, and yet simultaneously deny, the sexual titillation aroused by the fantasy of bodies marked deviant.

Read more at Notches blog: “Hyperbole and horror: hijras and the British imperial state in India.”

Also, another post by Gust, from February, focuses on the criminalization of homosexuality: “India’s Section 377: India, Britain and the ongoing legacies of imperialism.”