Colonial Legacies of the Categorization of Transgender individuals in present-day India
The present-day categorization of transgender people in India is heavily informed by legacies of empire. The hijra community has been historically targeted since colonial rule. Transfeminine hijras were made legible to the state with the derogatory term ‘eunuchs’ in colonial documents like the 1857 Criminal Tribes Act and Section 377 of the Indian Penal Code. There is a historic legacy of criminalization influencing categorization and categorization influencing criminalization of transgender people in India. This is a means for us to think about the links between the colonial and postcolonial and the blueprints of violence that continue to exist today in trans-oriented policies such as the Transgender Persons (Protection of Rights) Act, 2019. The politics of categorization involves the project of subject-making, from colonial ideas of the ideal colonial subject to the modern nation-state’s ideal liberal subject. In this fashion, state legibility of transness becomes a falsified process. The logics of purity are evident as a product of colonial imaginations of transness, with othering categories such as ‘third gender’. In this manner, it is evident that the policing and surveillance of the body directly affects the categorization of the body. In this paper, I will investigate the colonial roots of the categorization of transgender people, focusing on how the colonial informs the postcolonial in the legacies of violence, surveillance and state legibility faced by trans communities in India.
Trans communities in India are diverse in nature, and have many local terms of reference such as Hijra, Thirunangai, Kinnar, Mangalamukhi, Kothi, and more, with hijra being the most commonly referred to term. The hijra community is one part of the transgender community that has been historically targeted since colonial rule. The first recognition and categorization was conducted through the 1871 Criminal Tribes Act (CTA) during British colonial rule. This colonial text particularly targeted hijra people, who they labeled as eunuchs, a derogatory colonial term. It is to be observed how “eunuchs'' are made legible in the same text as “criminal tribes”. Part two of the CTA is specific towards eunuchs, and states that the police must register any eunuchs that are reasonably suspected of sodomy, kidnapping and castration. This suspect was deciphered if an individual who is not a cis woman wore women’s clothing and jewelry in public. A eunuch could be arrested without a warrant if they were dressed or ornamented like a woman in public spaces, or dancing and playing to music in a public or private space. In this way, the category of eunuch criminalized the very existence of hijra people both in the public and private space. What’s more, this criminalization explicitly targeted transfeminine people, and misgenders feminine hijra people to be “men in women’s clothing.” The criminalization of so-called eunuchs comes from their perceived threat to the colonial state as they defy the norms of cis-heteronormativity. It was their femininity that posed a threat and alluded to their apparent “obscenity.” The criminalization of eunuchs led to their social exclusion, which is apparent in the ways their visibility was criminalized but also in the ways so-called eunuchs were not allowed to adopt a child or be a guardian either. In this way, the categorization of the hijra community as so-called ‘eunuchs’ informs the very criminalization of the hijra community and vice-versa.
The categorization of hijras under the CTA informs the violence the community faced and continues to face. In 1865, the North-Western Provinces (NWP), where the CTA was enacted, explicitly declared the goal of reduction of the number of ‘eunuchs’ to gradual extinction. To carry out this process, police surveillance was heightened coupled with the mission of cultural elimination of hijras from performing in public. The categorization of hijras lays on the foundation of criminalization and state violence. Furthermore, the hypervisibility of hijra people in colonial records like CTA are evident of the kind of surveillance that is the blueprint of tran-oriented policies that exist even today. Hence, the very politics of categorization is to be investigated as a mechanism of surveillance and state violence.
It is evident that the process of categorization is a project of subject-making which requires the disciplining of individuals defying cisheteronormative norms. Categorization, which came with genocidal threats of extinction, are motivated by creating the ideal colonized subjects in the British colonial state. It is to separate the individual from the self, and construct the individual as part of the network of colonial subjects. The colonial subject is not defined by their consciousness but as a commodity of the self that can be produced and performed. This is evident with the policing and criminalization of hijra people through colonial legislations like the CTA as well as Section 377 of the Indian Penal Code.
Section 377 of the Indian Penal Code criminalizes same-sex sex and has also been used to criminalize transgender people in India as well. In 2018, it was decriminalized after decades of activist work. Queer and trans people perform agency when they embody the self that contradicts the ideal colonial subject. This agency, as seen in the postcolonial state, is a threat to the making of the liberal citizen-subject , as is evident with the fight to decriminalize homosexuality. The colonial precedence of the categorization of trans people in India allows us to understand the ideological goals of the state. The project of categorization works skilfully in denying agency of queer and trans people. The postcolonial Indian state carries on the legacies of the British colonial state in this fashion, in the way it necessitates the ideal Indian subject, one that is cisgendered and heterosexual.
The question of who was legible under Section 377 in pre-2018 postcolonial India gives us insight into language as a weaponry. Section 377 was technically meant to criminalize sex between men; however, with the fluidity of gender and sexuality, it also extended to women and trans folks. Even the provision of law, which attempts to categorize as a means to criminalize, showcases the fictitious nature of coherent law which subsequently attempts to produce the coherent subject. Being legible to the state has a historical precedence of criminalization in this manner. Hence, the logic of legibility itself becomes obsolete.
Categorization of transgender people in postcolonial India is an attempted means of state legibility. This is evident in the ways transgender issues are discussed by the Ministry of Social Justice and Empowerment of the Government of India. The Expert Committee Report on Transgender Issues, published in 2014 by the Government of India, is a report on a meeting held addressing issues affecting transgender people in India. It involves many individuals, including trans individuals, raising issues that affect the trans community such as poverty, illiteracy, unemployment, police violence etc. While the government document raises important issues around transgender human rights, the language of categorization gives us insight into a certain neglect that has colonial precedence. One of the suggested steps in this document is to provide gender categories in government documents that are more ‘inclusive’ to trans individuals. This looks like replacing the category of ‘other’ to “Transgender Gender”. It is to be noted firstly, the othering nature of the ‘other’ category itself. Secondly, the category of “transgender” as a gender on its own misconstrues the definition and identity of transgender itself. Transgender simply means being of a gender that differs from the gender you were assigned at birth; that can be identifying within the gender binary and/or beyond it. The plurality of transness is reduced to simply third gender with the category of transgender. There is a certain neglect that is evident in this category, where despite trans people being asked to discuss issues, they are reduced to a falsified category. The parallels in the way the British colonial state defined eunuchs as “male crossdressers'' and the reductive category of “transgender” as a gender by the present postcolonial state are evident.
The reductive categorization of transgender as its own gender contributes to the simultaneous visibility and invisibility of trans people in India. On one hand, recognition from the state that transgender people do indeed exist and deserve respect and rights is necessary. In this way, trans people being given a platform to narrate their experience, such as by the Ministry of Social Justice and Empowerment, is a great step forward. Yet, it is to be questioned if this false legibility provides anything beyond recognition. What’s more, it should be questioned whether this form of recognition, of transgender as a separate category of gender, is even adequate. While trans existence is acknowledged, it is falsified and reduced to a third gender category. There is invisibility of trans people who choose to transition within the gender binary and those who do not identify with gender at all and identify as non-binary, gender non-conforming or agender.
This is not to say that there are trans people in India who do not identify with thirdness of gender. Identifying as third gender can be a form of self-identification that itself is simply a product of linguistic practice. Still, it is necessary to investigate the category of third gender as being synonymous to transgender in a broader context. When we think of state legibility and legacies of empire, it is essential to think of the body and the historic trajectories of the body. Hence, it is necessary to question the language of categorization of gender by looking at sociocultural embodiments of the body. Gender is often assumed and assigned by looking at genitalia. The social construction of gender under cis-heteronormativity assigns aesthetics to ‘male’ and ‘female’ which then inform what bodies are and are not allowed to perform certain aesthetics. The policing of gender through the body gives us insight into the surveillance and othering of deviating bodies.
It is apparent that the policing of the body directly affects the categorization of the body. This is evident with the Transgender Persons (Protection of Rights) Act, 2019 which was introduced by the Ministry of Social Justice and Empowerment under the facade of spearheading trans rights, but really sediments how trans bodies are surveilled and policed as a means of legibility and categorization. Not only does it make various assumptions of transness, that there are not trans people who transition within the gender binary, but continues the process of othering transgender people. Embodying violent stereotyping and prejudices, this bill declares transgender people as a distinct class of citizens. While in previous versions of the act one had a right to their self-perceived gender identity, now trans individuals required a certificate to prove their transgender status. In this manner, the surveillance of trans bodies involves a violent othering with the denotation of trans people as a different class of citizens and assumptions of deviation. What’s more, it is a perfect example of how self-recognition and self-determination of identities is transformed into an administrative identity. This administrative identity or category does not come with any material benefits but rather heightened surveillance and larger potential to face violence. The surveilling of the body is also evident in the ways to achieve a legal ‘transgender status’, one has to submit proof of sex-change surgery to the government. On the pretense of social justice and trans human rights, this Act continues to be informed by legacies of criminalization of trans bodies and falsified categories that do nothing more than contribute to the surveilling and othering of non-cis, so-called ‘deviant’ bodies.
In the subject of surveillance and policing of the practices of the body, transfeminine people, such as transfeminine hijra people, experience heightened surveillance in the ways their bodies are made hypervisible. If an individual assigned male at birth dresses in feminine clothing, they are distinguished differently than individuals assigned female at birth wearing feminine clothing. The policing of femininity has historically been a tool of sexual governance , for both individuals assigned female at birth (AFAB) and transfeminine people. Sexual governance is not only about preserving the family unit but also involves an ideology of purity, especially under cisheteronormative structures. Bodies that deviate the gender aesthetics and gender identity assigned to them become a threat to these structures with their so-called ‘deviancy’ and ‘impurity’.
The surveillance of transfeminine people differs in the violent othering of their bodies- the category of ‘third gender’ is quite literally othering. The three genders become ‘man’, ‘woman’ and ‘other’. There are many people in the hijra community that do indeed identify as ‘third gender’ or ‘third sex’. However, when the ‘third gender’ category becomes synonymous with transgender, the transphobic othering of transfeminine people who identify as women in hijra communities and other trans communities with the category of ‘third gender’ is quite evident.
The categorization of transgender people into categories like ‘third gender’ involved violent stereotyping of who is even transgender, which are developed by the pretense of the colonial imagination of transness. Colonial documents related to trangender people are filled with transphobic misgenderings and images of ‘deviant, effeminate men’ who crossdress. While there is a violent hypervisibility of transfeminine people, there is simultaneously a hyper-invisibility of transmasculine people. Transmasculine people still face misogyny in the ways we are not allowed to occupy the public sphere. What’s more, transmasculine people are barely mentioned in any government policies around trans issues. This provides a certain escape from more intense public violence transfeminine people have historically faced but simultaneously contributes to societal invisibility of violences towards transmasculine within and outside the domestic sphere. One type of marginalization that transmasculine people face as a result of invisibility is limits to access to resources. For example, transmasculine people have difficulties even getting access to gender-assigning surgeries, which are necessitated to acquire the ‘transgender’ card, as per the Transgender Persons (Protection of Rights) Act, 2019. The very process of recognition in this manner becomes othering. The kind of legibility of trans bodies informs the recognition of trans individuals. It is seen that once again the process of categorization, of the adminstrative identity of transgender, is built on the pretense of assumptions of who can practice ‘deviancy’ of gendered aesthetics and being.
When investigating the politics of categorization of transgender people to be made legible to the state, it is important to also analyse the ways legacies of categorization during colonialism affect the violences faced by the trans community in present-day India. There is a normalization of violence and neglect faced by the trans community. Sexual and gender deviancy as a form of impurity is evident in both colonial texts and present-day popular understandings of the transgender body. Dalit trans artist and activist Living Smile Vidya talks about how the logics of impurity and untouchability in transphobic violences and stereotyping are informed by brahminism. Transphobia becomes a type of brahmanism, in the ways [transfeminine] hijras become the untouchable subject. In fact, it is seen it is only in Dalit colonies where trans people are able to rent houses for collective living. The economic deprivations that come with becoming the untouchable subject are evident in this manner. It is to be questioned then, what facade of material equality is being presented with the category of ‘transgender’? It is a matter of fact that trans people live under hypervisibility, and hence are constantly under the threats of attacks. Our genders are forced to exist in the public space as claims and assumptions of our bodies are made visible by the state.
From eunuchs to third gender, the categorization of transgender people in India has been informed by the process of criminalization that trans people have historically faced in India. Documents like 1857 Criminal Tribes Act and Section 377 of the Indian Penal Code provide us historical records of the legacies of colonialism that inform the administrative identity of transgender, whether that is the denotation of ‘third gender’ or ‘third sex’ or the achieving of transgender status as per the Transgender Persons (Protection of Rights) Act, 2019. What links the colonial to the postcolonial is the preservation of the practice of subject-making which takes place with the policing and surveillance of trans bodies. The continuous othering of transgender people coupled with both hypervisibility and invisibility sediments the false nature of coherent categories and state legibility as a means to material equality. Rather, it can be said that the state categorization of transgender people builds an administrative category that relies on legacies of colonial imaginations of transness, sexual governance and surveillance.