This article looks at the construction of citizenship for non-normative gender identities through Ditilekha Sharma’s paper The State and the Construction of Non-Normative Citizen, especially in light of the court judgements along with other laws and policies made for the welfare of marginalised communities. These, however, end up making the marginalised communities more vulnerable. Most strikingly through their analysis, Sharma asks, As queerness is about challenging the heteropatriarchal structures, can it be ever included in a very masculinist, Hindu-ised idea of citizenship? Moreover, what does this mean for trans subjects?
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Citizenship and Queer Subjects
In The State and the Construction of Non-normative Citizen, Ditileka Sharma illustrates the conflicting question of citizenship rights in the context of non-normative identities. It is very well known that queer subjects lie at the periphery of the state. The notion of citizenship itself has been gender-blind through its conceptualisation as women time and again have been excluded. Queer subjects are not only excluded but included in particular ways. Disha Pinky Shaikh also said, “we are not killed, but the state ensures that we starve,” highlighting the notion of specific inclusion.
In her analysis, Sharma uses a queer feminist lens. They challenge these norms through reflexivity and deconstruction, highlighting that their research attempts to challenge the masculinist and heteronormative ways these themes have been conceptualised. In doing so, they challenge the idea of citizenship, which has been masculinist and heteronormative. They discuss the timeline of the iterations of trans bills that proceeded during a change of government where the BJP had more or less maintained its position on homosexuality as against the culture but was not against decriminalisation anymore. This position of ‘against culture’ has continued today vis-a-vis the issue of same-sex marriage rights.
Historically, transpersons have been looked at and pathologised through the disciplines of law and medicine, highlighting the crucial need to focus on their lived experiences, especially in the context of their rights. Most of the trans bill iterations underscored that the state sees its citizens as strictly male or female. They use the law and reports and recommendations on the bills by queer/trans rights groups and committees set up by the government, parchas, petitions used in protest, and campaigns against the bills, bringing in a more inclusive approach. Sharma’s critiques of the bills consisted of how the screening committee is nothing but a tool of surveillance; the failure to cover the violence that leads to death, the violence by police, the violence by families and lack of inheritance rights; the violence due to ghettoisation and segregation; and the incompetency to understand gender identity beyond the binary among others.
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The NALSA Judgement
The NALSA judgment was crucial as it recognised transgender-identified persons as “third gender.” It stands as one of the most progressive legislation judgement in post-colonial India. The judgement diverges from the acronym LGB, where the gay rights movement has superseded the history of the trans rights movement. However, the discussion around identity in the judgement was done through subtle themes and ideologies. It failed to incorporate hijras (whether they are considered emasculated men or identify as women) and intersex persons with the erasure of transmasculine persons.
Emphasising upon the appendages of colonial legacy, the judgment uses the derogatory term “eunuch,” which has been rejected by the trans community altogether. On the other hand, the decision also invokes articles of the Indian Constitution and Human Rights treaties and policies recognised internationally through a gender-neutral interpretation of words like person, citizen, and sex. This trans-national invocation to put pressure on the Indian state towards a progressive stand on the rights of transpersons runs the risk of co-opting trans existence with the Hindu past on a global stage.
The Hindu-isation of Trans Identity
There is Hindu-isation of the trans identity itself (collation of hijra identity with trans identity, socio-cultural identity and a political one respectively), which makes it fall within the ambit of the state. The historical presence of transpersons in mythology and parampara is at odds with the notion of civil rights. Again, there is the erasure of transpersons from Sufi and Islamic tradition. Sharma also adds to the work by Sarah Bracke, 2012 concerning Homonostalgia, where the idea of gay liberation is threatened by a racial other. In this case, the racial other is traced back to the British, projecting them as the oppressors of transpersons and their glorious Hindi culture, when in reality, it has been the patriarchal state itself.
Building upon arguments by Oishik Sircar on ‘Homonationalism’, Sharma points towards the depoliticisation of transpersons as welfare subjects. Here, transpersons get citizenship rights through a Hindu-ised narrative, effectively distancing them from traditionally heteronormative marriage, family, and property institutions. It shows how the Hindu Nation maintains its cultural, political, and economic capital. The fact that transpersons had the opportunity to have their Aadhaar cards made, but not the same for their PAN cards, points towards maintaining cultural and economic capital.
They do not occupy intersectional identities within this imagination of transpersons by the state. Emphasising the language of rehabilitation, Sharma decodes how the language itself works to restore transpersons to the ‘normative’ life. This strategy is prevalent sadly in biomedicine, where the aim is to make transpersons normal instead of providing them with rightful entitlements. NALSA judgement and Tiruchi Shiva’s bill, which had a consultation with the community, followed a rights-based approach. The other bills by the government pursued a rehabilitation approach.
The Trap of Neo-Liberal Welfare Legislations
Sharma also confabulates the convergence of different laws. For instance, The Trafficking of Persons (Prevention, Protection, and Rehabilitation) Bill, 2018, criminalises sex work and earlier, Section 377 criminalised sex work by transpersons. In their application, both these laws failed to provide any welfare opportunity to sex workers. Sharma also makes a fascinating comparison between how The Trafficking of Persons (Prevention, Protection, and Rehabilitation) Bill, 2018 and The Surrogacy (Regulation) Bill, 2016, also lead to further criminalisation. While the trafficking bill increases the vulnerability of sex workers in the name of protection through a language of morality – assuming women need protection and does not engage with sex work on will; the surrogacy bill abolishes commercial surrogacy, reducing it to the private space of the heteronoramtive family.
These bills reject self-determination and self-identification, dictating what kind of people can do what type of work and are worthy of being a citizen. This is a criminalising approach under the guise of a welfarist model for marginalised communities. The same logic applies to Article 370, envisioned to emancipate the marginalised in Kashmir – Dalits, Bahujans, and queers. Even the CAA-NRC framework can be viewed through a similar lens, highlighting the exclusion of Mulsim women from Scheduled Caste communities and transpersons in Assam. NRC itself traces the family through patrilineage, which is not valid for many transpersons who live in communities.
While the trans bills uphold heterosexual families, caste purity, and bloodlines, the CAA NRC constructs citizenship through familial and religious status. One uses rehabilitation centres to correct people, the other uses detention centres. Sharma highlights that the right to sexual orientation and sexuality cannot exist without the right to dignity, self-determination, and bodily autonomy. They ask, “How does the government offer Kashmiris the right to sexuality without offering fundamental rights like freedom of movement and internet connection?” raising important questions of citizenship for marginalised communities at multiple axes.
Making the Perfect Citizens
The luring transpersons into neo-liberal citizenship with the promise of making them ‘good and successful’ citizens is a trap and a drawback for radical trans politics. Inclusion is done in particular ways through criminalisation and removal of those who challenge heteronormativity as only ‘obedient’ citizens are rescued or provided protection. The perfect transgender citizen creates the ‘other’ of the citizen itself as the perfect one needs protection, excluding others who challenge the nature of this same protection. There is reorientation among the state, capitalism, and sexuality.
While discussing the global funding and the transgender body, the Hindu Right and liberal capitalism work hand in hand to medicalise the transgender identity while also reducing the funds for HIV/AIDS initiatives. Once the state has achieved prestige, the symbolic funding is thrown away. Halberstam has pointed out that for queer people, there is success in challenging dominant structures, and the state prohibits that for transpersons. It takes away any agency for a trans person to decide for their own life, unless and until it falls within the ambit of strict hetero-patriarchal structure but without addressing the violence of family, caste, and other structures.
Today, the inclusion of Dalit, Bahujan and Adivasi transpersons within the Other Backward Classes (OBC) category is problematic due to failure of understanding intersectional and multiple identities of transpersons. This fight is continuing today. Within popular understanding, it has inadvertently led to the homogenisation of transpersons as a group, a grave concern feminists like Chandra Mohanty have been fighting against as women also have been homogenised. According to Sharma, “From the heterosexual Hindu perspective, state-market nexus essentialises a Hindu-ised transgender citizen, marginalising others in its conception of citizenship.”