By Susan Harris

The Supreme Court of India has accorded legal status to members of the transgender community as ‘third sex’ allowing them equal access to all opportunities and rights and prohibiting discrimination against them. There has been growing recognition for transgenders as a minority with equal disadvantages along with other sexual minorities such as gays or lesbians, and in South Asia as well, many governments have proactively recognized them. These new laws and rights provided by Pakistan, Bangladesh and Nepal reflect an acknowledgement of the gender non-normative people within our communities and their right to live with dignity. Transgender activists have also suggested that these minorities be included among OBC categories since OBC can have sub categories anyway and there is no doubt that the transgender community has been exploited and subjected to only limited professions for their livelihood.

The establishment of this ‘third sex’ as a category implies a space for transgenders to assert their rights especially at a time when homosexuality in India is still a crime. The court has said that the third sex is an issue of human rights and is not a social or medical issue since homosexuality is still outlawed we ought to examine if this logic of liberation is fallacious or not. This law will help transgenders in the domain of property and family law and aid them in accessing opportunities and resources in a society that promotes heteronormativity at all levels. It can even be claimed that violence against sexual minorities and women emerge from the hierarchy that manufactures and perpetuates its existence. From a Marxist point of view, equality is the most desirable but particularly in view of these judgments we need to ask whether an egalitarian ideal can be achieved if the logic behind it is flawed.

In ‘Marxism, Method and the State’, Catherine McKinnon argued that sexuality is the linchpin of all gender inequality. As long as the state thinks of homosexuals or bisexuals as oriented towards a specific sexuality then the laws supporting various minorities will be on par with the social and political taboos of our time. In fact the Supreme Court judgment shows an understanding of transgenders that aren’t defined by their sexuality but by a diachronic understanding of their social status-by the auspicious presence of hijras for certain social occasions, gods in the Hindu mythology that belonged to the third sex etc. I would like to argue that while an understanding of sexual orientation as predetermined by sex is problematic, so is an explanation that ignores the sexuality in identity and makes it a human rights issue.

Technically if law were an independent body meting out unbiased rules and regulations, fundamental rights to all would have been the aim irrespective of all differences, sexual or otherwise. But in the praxis of the world, law reacts differently to different groups and some groups are more vocal than the others. Therefore it is important to understand sexuality in relation to the social and political identity of the individuals and for this a conceptual understanding of sex/gender/sexuality often determines and reflects our own positions in this heterosexual matrix. Firstly it is disturbing that in the case of sexual minorities, the sexuality becomes overwhelmingly synonymous with their identity. Secondly, under such conditions the sexuality becomes something that is threatening to ‘normal’ men and women. For example, same sex gender friends of homosexuals express worry that their homosexual friends might be sexually interested in them.

The problem with the Supreme Court judgment is that in accepting the ‘third sex’ as a separate category, the society concedes to the prevalence of the ‘cultural genitalia’ of the transgenders as valid but at the same time upholding the heterosexual matrix of man/woman. Dismantling the categories is preferable to expanding them.

Judith Butler has argued that it is not possible to know sex as distinct from gender within the terms of our culture. If we ascribe law to assist or prohibit actions of citizens in the society then the same law must account for the ‘lived-experience’ or a more holistic identity than mere biology or sex because gender includes the biology and sexuality in its social construction of categories. The irrefutability ascribed to the scientific fact of sex-i.e. whether you are a born a man or woman is linked inextricably with the way that information is going to be used. In social theory, there is nothing objective in the way this objectivity is manipulated because it is used to serve the ends of certain groups at the cost of others. Three approaches by feminists can illustrate these differences in a more nuanced way.

A large number of feminists argue for equality or sameness with men and other human beings and ask to be treated in the same way they are treated. They are often met with opposition from the pseudo-scientific camp who point out that sameness is ridiculous in the face of difference. How can we be same or want the same things if we have different genitalia and are thus wired ‘fundamentally’ differently?

This façade of basic difference is rejected by those feminists who emphasize on difference and point out that there is a difference in cultural and lived experiences of women and while these are subordinated or subjugated to the man’s will it shouldn’t be. This view works against dominance by pointing out the assumptions in hierarchy which value a mother taking care of her kids less than a man earning money. The limitation of this approach is that it gestures towards a broadmindedness to appreciate different kinds of work and experiences and signal only the beginning of a long process.

Feminists who are anti-essentialist work against the idea of a unitary, essential identity or experience and focus on intersectionality between gender, race, class and sex. Here it becomes possible for sexual minorities to interact and work towards their rights and empowerment. Here the reliance on biology is forfeited along with aspirations towards any egalitarian utopia. These feminists try to normalize gender deviance as something that is more than biology and gender thereby shifting the crux to the possibility of sexual orientations which do not follow trajectories which are more acceptable than some others.

In such a theoretical framework, the judgment by the Supreme Court benefits the transgenders but not the other sexual minorities. It will protect the members of the ‘third sex’ against discrimination but not other sexual minorities. It has thus validated difference like the second approach which acknowledges the differences in experiences of the third sex but at the same time it will not have recognized the need to include the sexual minorities who are also discriminated against because of their sexual orientations thus giving up a chance to modify the discourse of gender as something you do and not something you are.

Posted by The Indian Economist | For the Curious Mind