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Opinion: This HC Judgment Shows How Indian Courts Do Not Understand ‘Gender Identities’

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I write to put forth for readers why judgements which visibly come across as a victory for gender justice in India, and as judicial pronouncements in favour of empowerment of the transgender persons, have a problematic understanding about gender identity and sexual orientation at the crux of it.

Further, I will also highlight how these judgements go on to commit epistemic injustices, where the Courts under the impression of doing good, end up creating structural hurdles for future contestations concerning the rights of transgender and queer persons.

Pride
Representational image.

Case In Point — Anjali Guru Sanjana Jaan v State Of Maharashtra (2020)

The petitioner, Anjali Guru Sanjana Jaan, moved the Bombay High Court to look into the rejection of her nomination form by the Returning Officer for a local Gram Panchayat Election. The rejection was based on the premise that transgender person can not fight from a seat reserved for a woman.

The submission on behalf of the State of Maharashtra and the judgement by the Bombay High Court both relied heavily on the idea of self-identification being the cornerstone of ascertaining one’s gender identity, a concept that was upheld by the Honourable Supreme Court in the matter of National Legal Services Authority vs. Union of India and others, AIR 2014 SC 1863 : (2014) 5 SCC 438.

To further address the context of the case, where a lack of political participation of transgender persons and concern of “supposed” gender opportunism revolved in the consciousness of our cisgender judiciary, Honourable Justice Ravindra V. Ghuge suggested the following in the operative part of the judgement:

“In the present case, the petitioner has opted for the female gender as her self perceived gender identity and makes a solemn statement, which is recorded as the statement made to the Court, that henceforth in her lifetime she would not switch over to the male gender driven by opportunism and would continue to opt for the female gender, in future, save and except if there is a reservation provided for transgender in public life.”

“It is quite apparent that the Returning Officer was handicapped insofar as the knowledge of the law was concerned while deciding the fate of the nomination form of the petitioner. No other contesting candidate has taken any objection against the petitioner. It is the Returning Officer, who was circumspect about the nomination form of the petitioner and hence, opted to reject the form believing that the petitioner can neither be a male nor a female and the ward has been reserved for women general category. There is no ward reserved for the transgender.”

The observation by the Honourable Justice puts forth some important questions for us to ponder upon: 

  1. How and why these categories of self (read as gender) were created? Were they created to help us to understand our own intrinsic value as an individual and a certain relatedness between each other as a population or were they a product of an administrative intent to simply categorise individuals for the sake of governance that ignores subjective and everyday realities of individuals or communities?
  2. The second question which we need to ask ourselves is how the singular anglophonic term of “trans” has subsumed a diversity of gender realisations and how a judicial affirmation of the “trans” identity, the creation of a “third” category and a haphazard Transgender Persons (Protection of Rights) Act, 2019 has led us to a public space, where more than 24 judgements passed by various State High Courts and the Supreme Court provide a paradoxical understanding of self-identification that conflates autonomy with choice and forgets the realistic concerns that cut short our pristine idea of complete autonomy.

Here, we need to understand how our knowledge about the past itself informs our understanding of the present. How the historical categorisation of communities, i.e., as “others” or “criminals” or “vagrants” has remained embedded in the cultural memory of modern India. How the law remains cisgender in its imagination, where everything beyond the binary is a state of exception.

Representational image.

It is important to note how Hijra, Koti and transgender communities are guided by certain cultural and geographic realities that posit a differential self-understanding of one’s gender. For example, there are Shiva Shaktis who identify their gender beyond the binary spectrum of male and female, whereas you can find Hijras in the localities of Hyderabad, identifying as women and in some cases transwomen.

The judgement in its reading looks at gender as a choice that oscillates between an authentic man and an authentic woman. This undertone of choice reflects the deeper problem in the language of law which time and again fails the petitioner by trying to imagine the oppressed in the language of the oppressor.

Further, the judge also situates his viewing on a lack – an absence of state policy that reserves opportunities for the transgender communities. While the judgement intends to highlight the state inaction towards the welfare of transgender communities, it simultaneously puts the fate of the community contingent on a future creation of affirmative policies that will help the state and its institutions to push all the gender non-conforming individuals.

Even the transgender individuals who identify themselves as a man or a woman, into the “third space” that would remain as a category of other in our collective consciousness. Therefore, I remain wary of the idea of absolute autonomy that the concept of self-identification makes us romanticize and celebrate. It is not freedom if your act of exercising it is limited to three boxes given to you by someone else with no scope for you to make your own box or a boat to float away. 

Furthermore, Honourable Justice Ghurge’s opinion about the role of the returning officer and technicalities of election law just situates miscarriages and social wrongs in the individual actors, i.e., like the returning officer and other contestants, by using ableist language without holding the state structurally accountable (1).

A clear ignorance of the error-loaded bureaucratic system of elections was a disappointing spectacle of the judgement.

For example, the judgement failed to point out the lack of the State’s duty to sensitize its public officers around the growing discourse on gender identities.  Secondly, while the election law concerning nomination formalities provide the contestants to appeal against irregularities but how does a cis-gender third person claim of gender appropriation and impersonation by a trans-person even work out in one’s legal imagination?

Such small and unintended references to formalities and rules make us realise the multiple ways in which a democratic state could inflict violence on its transgender communities. 

To conclude, the judgement reiterates an urgent need to understand how the state’s (in extension the judiciary) understanding of gender is layered with contradictions. There is an urgent need to go to the communities concerned across the length and breadth of India to articulate policies that help the transgender communities in terms of recognition, welfare and social justice, and not merely be construed as an instrument for state’s convenience – the illusion of empowerment. 

Note: 

The critical view of the writer on the politics and language of the judgement should not be conflated to the victory scored by Anjali Guru Sanjana Jaan to rightfully contest for an elected office in India. 

(1). The case refers to a set of recommendations which the Bombay High Court majorly borrows from the NALSA vs. Union of India, 2014 judgement but falls short of calling out the structural limitations in the state apparatus that creates such circumstances of injustice in the first place.

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