Transfeminist Mobilisations Need to be Both Transformative and Transgressive

The Transgender Persons (Protection of Rights) Bill, 2016 wrongly conflates various identities into a unilinear narrative and imbibes them structurally into the social functioning of the state and law. The history of this draconian bill can be drawn from the remarkable NALSA v Union of India (henceforth NALSA) judgment of 2014 which ensured the separation of biological sex from one’s identification (and construction) of gender, therefore attacking biological essentialism and determinism at an executional level. This verdict came from the Supreme Court, which tried to defend the honorific construction of someone’s gender by making gender determinism a legal right. It also asked the Government of India to take steps for the emancipation of transgender persons by ensuring policy developments concerning reservations in educational spaces, access to healthcare, etc. 

It is important to throw light on the lack of access to most spaces for the non-marginalised society for transgender persons, persons with disability, Dalits, Bahujans, Adivasis, and other oppressed masses. People are alienated not just from other people but also from spaces. This leads to systematic disarmament as well as structural disenfranchisement. This two-way disengagement, although imposed on one side and maintained on the other by systematic and often internalised alienation, leads to an invisibilisation of transgender persons in the eyes of the state. This observation shall become important in our engagement with the bill in question. 

As a result of the NALSA judgment, Rajya Sabha member of Parliament (MP) Tiruchi Siva proposed a bill for the emancipation of transgender persons in December 2014. This bill was promptly passed by the Rajya Sabha, perhaps because of the pressure of emancipation that the judgment had placed on the parliamentarians. 

A lot has been written about the draconian nature of the bill and therefore, I will not explicitly explain the various points of the bill. Rather, I try to point out how this bill is a threat to the creation of a body of transfeminist politics, and how the entire drama surrounding this bill reflects the neo-liberal anxieties of privilege preservation by illusionary emancipation. With certain risk, I also show that this bill is the product of the right-wing government and this can be understood as a percolation of the right into the lives of those who are most affected by oppressive politics.

The Trans Body and its Language of Existence

Transfeminism holds that sex and gender are both socially constructed; furthermore, the distinction between sex and gender is artificially drawn as a matter of convenience. While the concept of gender as a social construct has proven to be a powerful tool in dismantling traditional attitudes towards women’s capabilities, it left room for one to justify certain discriminatory policies or structures as having a biological basis. It also failed to address the realities of trans experiences in which physical sex is felt more artificial or changeable than their inner sense of who they are. (Koyama 2003)

The transgender body, by its mere existence, is an assault on the set systems of looking at sex from an essentialist and deterministic perspective. The notion of a “physical sex” is deconstructed and later dismantled by transgender and intersex persons, who not only show sex to be a non-binary reality as contrary to its binary social construction, but also take the notion of sex away from genital determinism. This assault, quite naturally, unsettles the set notions of 21st century feminism(s) and jurisprudence, and therefore, is not captured at all by the bill. On the contrary, the bill wrongly conflates sex with gender, therefore making the trans body an outsider to the discourse of understanding sex and gender, socially and culturally. This erasure is also translated and reflected in the voice of the bill, which prominently is the voice of privileged cisgender persons looking at transgender politics through their own lens without a reflexive communication with the multilateral, multilinear trans identities and communities. 

How Do Transgender Identities Build up a Language of Resistance and Solidarities?

For transgender persons, and more so trans women, resistance is a daily narrative of their lived experiences. Transgender persons have often understood the need to delineate the notion of gender from bodies but have also realised that the state and the society shall often intervene to sew the two. In my understanding, the desire of transfeminism now should be to focus on mobilisations that ensure the deconstruction of the constructed gender, and on a profound praxis of intersectional feminist solidarities, including solidarities among individuals victimised by caste, class, gender, sexualities, disabilities, and neurodivergence. I suggest that the resistance that has been sparked off by the bill be read as a visceral manuscript of transfeminist solidarity, and also be interpreted as a moment of liberation and recapitulation of the struggles of the transgender community against the inherently violent nation state.

The Nation State and Gender Violence

… perhaps the wrong of rape has proven so difficult to articulate because the unquestionable starting point has been that rape is definable as distinct from intercourse, when for women it is difficult to distinguish them under conditions of male dominance. (Mackinnon 1982) 

On similar lines, it is difficult for transgender persons to articulate experiences of violence because it is indistinguishable from the power politics that necessitate domination and exclusion. The perpetration of this violence is often facilitated by the state, through legal as well as social premises that the state stands on. Gender lies at an intersection of caste and class, and often the victims of jurisprudence are multiply socially excluded transgender persons: the ones dependent solely on their own kinships (for example hijra-kothi, havelis, kothas, dayars), begging and sex work (for example dhanda, khanjra) While I have earlier written on how the state has looked upon transgender persons and their subversions of structures in society (Datta 2017), in this article I extend my argument to the formal system of jurisprudence that inevitably alienates and oppresses transgender persons.

Various legislations have been enforced in India, right from the colonial times, in order to marginalise and affect the lives of queer-trans persons. A number of state-level anti-begging laws exist in India, along with acts that forbid sex work either implicitly or explicitly. There are also a number of acts that affect only working class indigenous transgender populations, especially transgender women, such as the Telangana Eunuch’s Act 1329F. The nation state, while liberated from the throes of colonialism, still carries the remnants of colonial mentality in action as well as in the rule books that legalise the praxis of exclusion. 

Visibly transgender persons who refuse to go back into the dysphoric ambiguity of gender have been the most affected by the policies of this state. The state also considers the workforce to be comprised only of people who conform to the binary construction of the socially normal gender. This binary construction disallows transgender, gender non-conforming, and queer individuals from entering a negotiation with the state and also alienates the issues of transgender persons from the visual field of the state. Such myopic functioning of the state needs to be met with an analytical deconstruction mediated by the voices of queer-trans persons. Engaging with the legal discourse here becomes important for transgender persons, but transgender persons have no access to education (and often literacy), and therefore this legal navigation is nipped in the bud. This institutionalised violence is also often reflected in the stories of the transgender persons who get access to initial preliminary education but have to often drop out due to violence that is subtle in its form and therefore, more prevalent. This violence is passed down the doors in places of work of transgender persons, and systematically and systemically disengages them and invisiblises them from any narratives that the nation state generates. 

The converse of this argument is also often true. A state that is run on the ideology of generating a gross Domestic Product (GDP)-increasing workforce refuses to engage with transgender persons as they are seen to be intrinsically redundant to what the nation produces. This productivity-oriented, capitalist approach decides who the state cares for and this is seen clearly in its outlook towards sex work and begging (the two main occupations that most of the working class transgender persons are engaged in). This can be called as the “making of unproductives” by the nation, and it is a vicious cycle that ends with atrocities on transgender persons. 

Disgust relies on moral obtuseness …Disgusts imputes to the other a subhuman nature. How, by contrast, do we ever become able to see one another as human? Only through the exercise of imagination. (Nussbaum 2010) 

This disgust is exercised through legal mechanisms, as can be argued, and what Nussbaum calls “moral obtuseness” can also be understood as an intentional lack of exercise of imagination. In a structural system where imaginations are curbed, I would argue that it is no longer only imagination that can rescue the nation from being disowned by transgender persons but a stronger engagement with the transgender communities and radical changes in the legal systems led by transgender persons.

The Ownership of a Conclusion

The anxieties of the state with gender as far as the law is concerned are reflected in the gender violence perpetrated by the state. This violence is not just a show of power, but also a show of violation. The debate on section 377 in the Supreme Court revealed not only how the bars of justice have been set too low and too late, but also how legal communication can be violent and disrespectful. 

This article has aimed to highlight the need for conversation with the various voices of resistances that have been emerging and resonating from within the transgender communities. It will not end in a conclusion unless and until a non-performative allyship develops to engage with the needs of the transgender persons and support them with their privileges. This includes the academia, which also is exclusionary to queer-trans persons like all other sections of the society. I wish to end this article by articulating the conception of allyship and the desire for freedom through the resistance of poetry.

The word is out like the glaring sun (your eyes shall burn)
Which cocoons my breast with the kiss
Of a dawn that is yet to arrive.
The dawn shall not come on horses
But through us, as we walk;
Chariots shall bow and bureaucracy
Shall know our voices
Like our faces have always been unsettling, and
The fluidity of how we do gender
Shall always burn the entrails of your lawbooks.