Vibha Swaminathan*
Transform 2022 took place on 9 December 2022 and the theme was ‘Transforming Rights: How Law Shapes Transgender Lives, Identity and Community in India’. The speakers included Dr. Svati Shah, Kalki Subramaniam, Santa Khurai and the discussion was moderated by Jayana Kothari (Director, CLPR). This is the second piece in a two-part series, engaging with arguments and insights emerging from the panel discussion.
Underlying all three panellists’ presentations was a preoccupation with the law and the state – even as they critiqued and challenged the legal orderings of queer lives, they recognised the power of the state within queer discourse. This article explores two paradoxical aspects of the relationship between the state and queer/trans realities – first, the paradox of the state and the family in negotiating the right to privacy and the right against abandonment of queer/trans persons and second, the paradox of state classification, necessitated by beneficiary identification, but underpinned by administrative control of marginalised bodies. Through an exploration of these paradoxes, it argues for a trans politics that is grounded not in the framework of liberal individualism, but in collective identities and solidarities. A reflection of this trans politics is found in the ‘alternative histories’ of the law and society, that challenge state (in)action while simultaneously transcending the statist framework altogether.
Privacy and the family: demands and dissonances
Kalki Subramaniam’s presentation shed light on the paradoxical demands for state (non)-intervention within the private sphere of family. Historically, the demand for equal rights of queer/trans persons has been expressed in the language of privacy, both in the West and in India. A constitutional right to privacy has conferred upon queer and trans persons the individual right to bodily autonomy and intimate decision-making. In short, the state has no business in one’s bedroom, and by extension, one’s home.
There is a growing recognition, however, of the insufficiency of the language of liberal individualism, expressed in the right to privacy. As Subramaniam rightly notes, transgender and queer persons (particularly children) are very vulnerable to familial neglect and abandonment. Such familial neglect is not merely an affront to the material welfare of queer/trans persons, but violative of their fundamental right to dignity. Subramaniam presents one solution to this pervasive social rejection – penal mechanisms targeted at parents and families who chose to abandon their queer/trans offspring. The paradox is most apparent here: a state that ought to have no choice in intimate spheres of gender and sexual identity is expected to compel caregivers to love and care for their youth, at the threat of criminality.
While the desire for strict punishments towards cruel acts of familial neglect is intuitive, there is enough reason to be wary of the demands for increasing criminalisation. Literature emerging from the intersection of critical race studies, intersectional feminisms and critical prison studies in the West in the last decade have argued vehemently against carceral solutions to structural homophobia and transphobia. Increasing ambits of state intervention and regulation, even for an avowedly progressive end, ultimately increases the concentration and legitimacy of power in the hands of an apparatus oriented towards coercion and control – the state itself. Carceral responses, therefore, do not challenge inequitable relations of power – instead, they reinforce them. There is a need for queer/trans politics and theories emerging from the contexts of the postcolonial Global South, that reflect this critical engagement with challenging questions of broadening state intervention and deepening criminalisation.
In a broader sense, such critiques of carcerality points to the limitations of the state in fostering changes in social attitudes of compassion, acceptance and fraternity. Moreover, queer/trans forms of kinship, love and care are often radical departures from the monogamous, endogamous unit of the nuclear heterosexual family. These broader networks of care and solidarity can serve as sources of inspiration to challenge the cis-heteronormative conception of love and family – ultimately emancipating even cis-het persons tied down by individualised, transactional notions of care and obligation.
The paradox of classification
Svati Shah’s presentation argued for a historical contextualisation of the origins of state engagement with queerness, through mechanisms of administrative and penal control. They note how the present political articulation of queer and trans rights has to contend with the enduring ‘depoliticisation’ that has emerged historically, as a result of state engagement. Invoking the work of Janaki Nair and Mary John, Shah reflects on the continuing state imperative of classification for control, from the colonial administration to the postcolonial nation:
“It was not…the confessional couch or the hystericized woman that generated knowledge and anxieties about sexuality in modern India so much as, on the one hand, the administrative urgency of the colonial power to make sense of and thereby govern a baffling array of ‘types and classes’ and their family systems, and on the other, the nationalist need to define the dutiful place of the citizen/subjects of the incipient nation.”[1]
These seemingly opposed processes converged when it came to the definition of the rights-bearing subject/citizen – although they each claimed for themselves the legitimate right to define the boundaries of subjecthood/citizenship, they converged on the necessity of policing these boundaries to preserve and perpetuate sovereign authority and status-quo relations of power.
As Santa Khurai points out, growing public discourse on transgender rights has not neutralised this administrative urgency to define and control. As scholars and activists like Vikramaditya Sahai and Vyjayanti Mogli have noted, reductive principles of biological essentialism and pathologisation undercut the Transgender Persons (Protection of Rights) Act 2019. Although claiming to be based on self-identification, the statute creates biological hierarchies between trans persons having undergone surgery/medical intervention (under section 7) and those who have not (under section 6). Only those who have undergone medical interventions are eligible for recognition under the category of their gender; those who haven’t are only entitled to recognition as third gender. As Khurai points out, this medical framework corresponds to internal relations of privilege within the community – the ability to access ‘bottom’ surgery is often indicative of economic affluence. Further, these medical typologies are inadequate to fully accommodate the range of historical sociocultural identities grouped under the umbrella of transgender – for example, many indigenous Nupi Maanbi in Manipur do not even want surgical changes, as they see their identity in terms of the social visualisation of gendered living.
Validity in terms of recognition and legitimacy in the state’s eyes is a desperate desire for almost all marginalised communities – yet, it is this very same legitimacy that straitjackets these communities. Aniruddha Dutta’s prescient critique of the outcomes of the NALSA v Union of India judgement notes how trans persons will now have to navigate increased gender policing by bureaucratic apparatuses, in order to get the legal identification needed to access welfare measures like reservations in jobs or education. Khurai refers to the incoherent “bureaucratic haze” that pervades the inconsistent working of government registration processes – the penetration of which is a daunting, anxiety-inducing process for all trans persons. In granting recognition, the state has re-asserted its control of the boundaries of queerness/transness.
Law from below: Alternative histories
As discussed above, Dr Shah’s analysis of administrative legibility in the context of queer/trans rights sheds light on the individualistic and biological underpinnings of state recognition and legal rights. In some ways, this reification of justice and equality in individual rights is present across legal histories of social justice worldwide. A telling example of its insufficiency is the weakening of liberal feminist movement for reproductive rights in the USA. Liberal feminists frame the demand for abortion rights in terms of maintaining individual rights granted by the status quo, using moral and philosophical appeals that refer to abortion as a ‘private medical decision’, that should be ‘safe, legal and rare’. By contrast, radical feminists see abortion rights as inextricably linked to the right to material and social equality, involving a transformation of gender roles in the public and private spheres. Their demand is for the right of all women to access whatever form of birth control they wish, including abortion. As Jenny Brown traces in her book Without Apology: The Abortion Struggle Now, this understanding draws from the economic imperatives of a population growth that drives the capitalist right-wing anti-abortion lobby. In this understanding, the individualistic framework of privacy underpinning Roe v Wade[2] was ultimately unsatisfactory – merely reflecting an attempt to delimit the radical claims of liberation being pushed forward. The striking down of the constitutional right to abortion in Dobbs v Jackson Women’s Health Organization[3] is not a regression from Roe, but the ultimate progression of liberal individualism. An important learning from the history of the movement for abortion rights is the intentionality of the State in pre-empting radical collectivisation and the emergence of group identities and solidarities.
There is reason to believe, however, that the law is not merely the state’s emissary. As Eleanor Newbigin, Leigh Denault and Rohit De argue in their Introduction to a special edition of the Indian Economic and Social History Review, positioning the formal lawmakers as all-powerful has reduced the possibilities of locating resistance and subversion. Analyses of legal development that prioritise only the makers of the law, at the cost of downplaying the role of ‘users’ and ‘implementers’ of the legal system, are ultimately unable to fully account for how discourse is shaped. Newbigin, Denault and De’s Introduction highlights the seemingly paradoxical flexibility offered by the legal system, alongside its highly structured intellectual parameters. Legal reasoning requires the articulation of competing claims to be grounded in text and precedent, yet it offers continual interpretive possibilities to expand the scope of established legal principles. As Newbigin et al. argue, the very act of using the law can transform it.
Important initiatives of queer and trans rights activism today focus on the legal and social histories of the movements, to archive the community involvement that underpins the movement by driving strategic litigation, grassroots level advocacy and social empowerment through navigation of state welfare mechanisms. These include efforts such as those of Queer Archive for Memory, Reflection and Activism and South Asian Trans Law Database. These resources are evidence of the collective identities and solidarities that propel social change – identities which are often only reflected in individualistic terms in the language of the law.
Moreover, records of these transformations serve more than just the need for law as a body of precedent – they offer compelling indictments of the status-quo, memories of enduring struggles, narratives of resistance that can hopefully inspire others to similar resistance. In doing so, it offers possibilities for ‘alternative histories’ of the law – not merely as a tool of control, but as a discursive framework that guides social templates through which interactions with the state are constantly negotiated.
Conclusion
The movement for queer/trans rights, in its engagement with the state, has achieved landmark legal victories. As the insights from the panel discussion demonstrate, while lauding these achievements, we must not ignore the complicated and continuing challenges to emancipation of transgender persons. The path forward is neither linear nor uncontested. Lisa Duggan, in her compelling argument for queer theories to concentrate on the creative production of strategies for ‘queering the state’, notes the difficulty of communicating across the gap between ‘the predominantly constructionist language of queer studies and the essentialist presumptions of public discourse’. Even as we seek to do this, we must be wary of the misleading, even dangerous, conflation of legal recognition of citizenship and social rights with the true emancipation of queer/trans persons.
Ultimately, as Khurai points out, even if the state grants recognition and entrenches rights of trans persons, it cannot provide a satisfactory framework for the expression of authentic trans joy and desire. As Duggan argues, the critical insights of queer theory ought to be mobilised to forge a political language that moves beyond the limiting rhetoric of liberal rights.
For authentic expression to thrive, spaces outside the law must be preserved and expanded. Subramaniam and Khurai hint at this in their invocation of the aesthetic realm – poetry, painting and writing serve as mediums for deeply political expressions of being. Attempts at queering the state must be accompanied by a queering of all other realms of society, challenging the cis-heteronormativity embedded in public life.
[1] Mary E. John and Janaki Nair, “Introduction: A Question of Silence? The Sexual Economies of Modern India,” in A Question of Silence: The Sexual Economies of Modern India, eds. Mary E. John and Janaki Nair (New Delhi: Kali for Women, 1998), 1-51. Pp. 18-19
[2] 410 US 113 (1973)
[3] 587 US (more) 2022 WL 2276808
*The author is a student at the National Law School of India University, Bangalore.
