– Jeffrey A. Redding*
On August 5, 2019, India’s lower house of parliament, the Lok Sabha, passed the Transgender Persons (Protection of Rights) Bill of 2019 after little substantive debate. On the very same day, India’s president took steps to abrogate the erstwhile State of Jammu & Kashmir’s territorial integrity and autonomy. As I explain in this brief blog post, these two developments are not just temporally but substantively linked too. Both legal developments reflect and respond to a politico-legal environment where ‘choice’ is a prominent framework. Significantly, both legal developments also fail to uphold choice and diminish the sovereignty and human rights alike of besieged communities—one gender related and the other nationality related. Indeed, noted transgender activist Grace Banu reacted to the August 5 Lok Sabha action, not with celebration, but by terming this day “Gender Justice Murder Day.” The alignment of gendercide with other forms of genocide will be discussed further below.
The elaboration of transgender rights in South Asia has been one of this century’s most remarkable socio-legal developments. Historically vilified, surveilled, and impoverished by the colonial state, transgender people across South Asia continued to face steep odds even after independence and the proclamation of fundamental rights by various postcolonial constitutions. Yet now many decades later, in states as diverse as Nepal, Pakistan, India, and Bangladesh, transgender people have seemingly come to sit at the center of a rich conversation about how law can and should be used to counter social and political marginalization.
Nonetheless, key questions remain about how and why South Asia’s legal gender-scape has shifted so quickly, especially in a regional context of tense relations and suspicious statecraft. That Pakistan and India have moved so synchronously here is noteworthy, for example. In a contribution of mine from a few years ago to the volume Human Rights in Translation: Intercultural Pathways (edited by the late historian Michal Jan Rozbicki), I noted that “neither law or gender or conflict appear to be easily cabined by contemporary borders” before going on to argue that “global conflict has done more to produce and disseminate discourses about [transgender rights] than any ‘peaceful’ development and dissemination of liberal notions of gender, rights, or law has or can.” Succinctly stated, the methodological point was that comparative legal inquiries need to better appreciate how ‘like’ legal developments move and spread not just between friendly states but also between belligerent ones too.
This framework helps us understand the ricocheting transgender law developments in Pakistan and India in 2018 and 2019, respectively. Earlier, in 2009, litigation at the Supreme Court of Pakistan would result in years of Court orders aiming to improve the social and political situation of transgender people in Pakistan. In 2014, the Supreme Court of India issued its own path-breaking judgment on these issues, in the process taking note of the earlier legal developments in Pakistan. After this judgment, Indian citizens and parliamentarians put forward different bills to further elaborate and enshrine the Supreme Court’s 2014 orders. While those legislative efforts languished in India, Pakistan’s parliament passed the Transgender Persons (Protection of Rights) Act in 2018. Prodded by these Pakistani initiatives, India’s parliament passed the identically named Transgender Persons (Protection of Rights) Act in late 2019 when its upper house, the Rajya Sabha, gave its endorsement to the Lok Sabha’s earlier legislative decision.
As is well known, competition between India and Pakistan is not just limited to transgender rights, but also extends to the disputed territory of Kashmir. As observed earlier, competition between hostile states can propel like legislative developments and, in this way, the Kashmir competition has become a transgender one too. The additional suggestion here is that contestations between states over their precise territories and borders are existential ones symptomatic of and spurring further fundamental questions concerning the choice of social and political identities—including those relating to gender. Kashmir is emblematic of this kind of existential conflict with both Pakistan and India claiming Kashmir as an integral part of each country, respectively and exclusively. And then too there is Kashmir’s own chosen identity as ‘neither Pakistan nor India.’ In short, the Kashmir question resonates so strongly not only because of the grave human rights issues present in the hundreds of thousands of soldiers deployed in one portion of it by a government that Arundhati Roy characterizes as “gone rogue,” but also because Kashmir both exemplifies and encourages other social, political, and legal movements concerning the choice of identity—whether relating to nationality or gender.
Kashmir is one of the most prominent legacies of 1947’s Partition. Moreover, it represents a tragic consequence of the paradigm of national choice that the British inaugurated for contemporary South Asia even as they were leaving the stage. Indeed, as much as 1947 is remembered for the imperiousness by which South Asia was carved into awkward bits by British bureaucrats, it also was a time when South Asian princely states—not under the direct rule by the British—were given the consequential choice as to their political futures. Under the terms of the Indian Independence Act of 1947, these states were given the opportunity to join Pakistan, or India, or to remain independent. The details are complicated, but, briefly put, Kashmir was one of those princely states where the ruler had different interests and ambitions than the state’s people as a whole. Put another way, the Kashmiri head was at cross-purposes with Kashmiri hearts, and the contemporary conflict over this territory is one tragic consequence of this divergence between Kashmir’s historic ruler and its people.
Moreover, it is not at all surprising that a region of the world where fundamental questions about national choice have taken center stage would produce some of the most profound legislative declarations about gender choice. To be sure, the terrain of choice has been uneven and rocky in South Asia but the social categories of nationality and gender (and others like religion too) are heavily inflected by a legal regime of choice.
In mentioning social categories here, I am clearly suggesting that territory, like gender, depends on social processes. In other words, seemingly objective (or scientific) categories like ‘territory’ are, in fact, made and remade and unmade through collective human decisions. No nation’s actual territorial sovereignty, in fact, aligns with its official territorial borders; there is both jurisdictional expansion beyond those borders as is there neglect or failure within those borders. Further, borders themselves may be officially demarcated to correspond with ‘natural’ features (e.g. a riverbank) which may themselves change over time through the intervention of human behavior. In short, territory’s existence, reach, and demarcations—like gender—are artifacts of social processes. In making these observations, I am following the lead of theorists like Richard Thompson Ford and Faisal Devji, and my own work on the similarities between territorial and other forms of governance.
That being said, choice—whether national or gender—has not been adequately protected on the ground in South Asia. In Pakistan, the 2018 Transgender Persons (Protection of Rights) Act declares gender identity to be a matter best left to the individual—in the precise words of the 2018 Act, a “transgender person shall have a right to be recognized as per his or her self-perceived gender identity.” In India, however, the 2019 Transgender Persons (Protection of Rights) Act falls quite short of a full endorsement of gender self-identification. Sections 4-6 of the Indian act seems to allow any “transgender person” to automatically receive an official certificate denoting this gender upon application. However, any further effort to be recognized as “male” or “female” not only requires a transgender person to undergo surgery but also to apply to “the Medical Superintendent or Chief Medical Officer of the medical institution in which that person has undergone surgery” for a medical certificate. Moreover, only then can “the District Magistrate . . . on receipt of . . . the certificate issued by the Medical Superintendent or Chief Medical Officer, and on being satisfied with the correctness of such certificate, issue a certificate indicating change in gender.”
The situation in Kashmir is also a continuing tragedy of hyper-invigilation and authoritarian supervision of people and politics. While United Nations Security Council Resolution 47’s celebration of a Kashmiri plebiscite still beckons, every effort is being made to kill even that ghost of choice. Alarmingly, after first splitting and absorbing formerly (and formally) autonomous Kashmir in 2019, India has now also inaugurated plans to allow settlers in the portion of Kashmir it controls. Rights, choices, and sovereignties—whether Kashmiri or transgender—are on the cusp of something truly awful.
Conversely, a truly robust regime of choice could transform not only the transgender question but also the Kashmir question in India. Indeed, in a world where diminishing numbers of people believe that religious or gender identities are either acquired at birth—or should belong to the state—one wonders how much longer markers like national identity should remain a matter of parental or state control. In this way, transgender rights are religious rights; are nationality rights; are Kashmiri rights.
* Professor Jeffrey A. Redding is Dean, Shaikh Ahmad Hassan School of Law, Lahore University of Management Sciences.
 See generally Jessica Hinchy, Governing Gender and Sexuality in Colonial India: The Hijra, c. 1850-1900 (2019).
 See Jeffrey A. Redding, Transgender Rights in Pakistan?: Global, Colonial, and Islamic Perspectives, in Human Rights in Translation: Intercultural Pathways 49 (Michal Jan Rozbicki ed., 2018).
 Id. at 59.
 For a slightly different but related argument, see Mary L. Dudziak, Brown as a Cold War Case, 91 J. Am. Hist. 32 (2004).
 For a description and analysis of some of these proposals, see H.R. Vasujith Ram, Combatting Exclusions through Law Rights of Transgender People in India, in The Empire of Disgust: Prejudice, Discrimination, and Policy in India and the US 220 (Zoya Hasan et al. eds., 2018).
 See Indian Independence Act, 1947, § 2(4).
 See generally Jason Cons, Sensitive Space: Fragmented Territory at the India-Bangladesh Border (2016).
 See generally Richard Thompson Ford, Law’s Territory (A History of Jurisdiction), 97 Mich. L. Rev. 843 (1999).
 See generally Faisal Devji, Muslim Zion: Pakistan as a Political Idea (2013).
 See generally Jeffrey A. Redding, Slicing the American Pie: Federalism and Personal Law, 40 N.Y.U. J. Int’l L. & Pol. 941 (2008).
 Transgender Persons (Protection of Rights) Act, 2018, §3(1) (Pakistan).
 Transgender Persons (Protection of Rights) Act, 2019, §§ 4-6 (India).
 Id., § 7.
 United Nations Security Council Resolution 47 (adopted April 21, 1948), https://digitallibrary.un.org/record/111955/?ln=en.