Session #1: Friday, 9 January, 13.30 - 15.15 (CSLG)
Panel coordinator(s): Arvind Narrain, Alternative Law Forum, Bangalore (arvind@altlawforum.org)
Chair/discussant: Ashwini Sukthankar (chair); Deepak Mehta (discussant) ()
Panel description
Panelists, paper titles, and abstracts
The first time the queer perspective on law was expressed in a critical legal studies conference in India was at the CLS Conference in Hyderabad in 2006. While the panel itself marked a moment of arrival for the consideration of queer perspectives within the larger framework of law and society, the question was how to take forward queer critical perspectives on the law.
The significant developments since 2006 have been in the gathering momentum around the campaign against Sec 377 as well the continued articulation of concerns around the framing of the campaign against Sec 377 and the demands for how to make the campaign a more inclusive campaign. Can the Sec 377 campaign signify and be an emblem for all that is wrong with compulsory heterosexuality? Is there a need for a more specific articulation of the rights of sections of the queer community whose concerns might not be directly related to Sec 377? This question of course implicitly poses the problem of family, marriage and the medical establishment being institutions which police the borders of heterosexuality and which need to form a part of queer theoretical concerns.
We also aim to shed critical light on the continuing phenomenon of lesbian suicides and understand more closely the modes of social control which precipitate this tragic phenomenon. The difficult questions posed around the issue of lesbian suicides have ranged from how does one characterize the suicide as lesbian when none of the women committing suicide have described themselves as lesbian and the question of how does one take forward a campaign to try and prevent such a loss of life ? How indeed does one take forward a campaign against compulsory heterosexuality? Should there be beginning in terms of articulation around issues of family law and marriage which recognize the problem of coerced marriages?
The issue of transgender rights has got further recognition in the time period since 2006 with the Tamil Nadu government deciding to provide SRS within the scope of free medical services within government hospitals. The issue for serious debate has been whether hijras should be seen as women or whether hijras should be recognized as a third gender? This question continues to be debated within the transgender community.
In the broader South Asian region, the decision by the Nepali Supreme Court recognizing the rights of the third gender has set in place a new momentum regarding queer rights relevant for the entire South Asian region. It also raises very significant questions regarding what accounted for this dramatic development. Is it the nature of activism which preceded legal change or was it do with the specific historic moment at which Nepal found itself?
With respect to how international law has responded to this emerging grassroots articulation around queer issues we have the development of the Yogyakarta principles around sexual orientation and gender identity. These principles with their coequal stress on the issue of gender identity as well as sexual orientation mark a significant break from the older (western) history of gay and lesbian rights with its focus on sexual orientation. The question being whether the emergence of gender identity as a category in international law allows for the articulation of trangender identities in many parts of the developing world. The question of how activism in the international arena around sexual orientation and gender identity from the point of view of queer communities in the global south has to grapple with how sexual orientation and gender identity intersect with concerns around the war on terror, poverty and development is also an important one.
This panel will seek to explore these questions which have come up during the course of the queer struggle and one hopes to provide a critical space for reflection on the same. Each of the speakers will also implicitly shed light on the question of intersectionality and how the queer struggle is linked to the struggles around caste, gender and class.
In the entire discussion about the impact of law on queer sexualities the difficulty we often face is on understanding what is the impact of law. By now it has been well documented that the number of cases filed under laws such as Sec 377 of the Indian Penal Code constitute but the small substratum of the total harm of the provision. It has been noted that one of the kinds of harm to which queer people are subject to is the threat of the use of law as well as the threat of revelation of one's sexuality to one's family if they do not submit to blackmail demands. The legal framework interestingly recognizes the role of blackmail when it comes to queer sexuality through Sec 379 of the IPC which actually criminalizes extortion by putting a person in fear of being accused of an offence under Sec 377. However one can safely say that this provision has not had the 'salutary' impact it was supposed to have and has remained a dead letter (unlike Sec 377!) There has not been much work on the Indian context which attempts to understand how blackmail operates and what are the normative understandings it draws upon for its coercive power. This paper will draw upon a series of field interviews with gay men who have been subjected to blackmail. From the interviews it will seek to understand what does the coercive power on blackmail depend upon? What are the norms of secrecy and shame when it comes to queer sexuality which impels gay men to submit to demands of blackmail? This paper will also seek to make the argument that it is only by displacing the shame and secrecy surrounding queer sexuality that the problem of blackmail can be dealt with effectively.
In most legal accounts of the Hijra’s identity, the hijra is marked predominantly by gender. From colonial times, and with the enactment of the Criminal Tribes Act by which it was a crime for a man to dress up as a woman, to the contemporary, when talk about the hijra’s as the third sex and we celebrate the inclusion of the ‘T’ box, next to the ‘M’ and ‘F’ box on Election Commission, or Passport forms, the hijra appears as that which is always already, and only gendered.
But as Gayatri Reddy points out, this view has tended to preclude an examination of the other aspects of the hijra identity, be it religion, or class or social structure. In this paper I look at two cases that deal with the hijra customary law of succession. In the first case, Mohammed Illyas v. Ghiyasuddin, the short question is whether the hijra customs of succession trumps the ordinary muslim law of succession. So here the hijra appears to be constructed, not with reference to the body, but with reference to religion, community and property. And in the latter case, the Katni case, where the election of a hijra on a women’s reserved seat to become the mayor Katni was challenged on the ground that she was not a woman, the trial court held that she was a hijra, not because of her anatomy, but because she had succeeded to the property of her guru. Using both these cases, I look at how hijra identity and community is forged as a result of the laws of property, and how property constitutes personhood.
Aravanis, the male-to-female transgender people of Tamil Nadu, have been among the first communities of sexuality minorities in India to engage with political processes and demand rights-based protections through change in legal policies at the state level. From ration cards and voters’ identity cards, to a separate welfare board, the Aravani community's activism has recast the Indian queer identity discourse firmly in the context of rights. Further, it has also problematized the gender binary and its normative recognition by the state bureaucracy. This paper examines these instances of State recognition in the context of the shift of transgender subjectivities from the identity of a "high-risk" group for HIV infection to questioning aspects of self-identification, personhood, and political agency. We further explore the implications of rights-based, State-focused political activism for affecting deeper, long-term social change both within and without the Aravani population.
TBA