Hijra,trans,and the grids of “passing”

Abstract

This paper examines the contestation about khwajasara corporeality—legal, medical and activist claims about the khwajasara body—and how it has been subjected to state projects of welfare and citizenship in South Asia. The khwajasara/hijra body was a suspicious and a transgressive body for the colonial state, but it has become a target of legal and medical forms of knowledge with the transformation of the “transgender” as a new subject of citizenship in South Asia. Based on ethnographic fieldwork in the khwajasara community in Pakistan, this paper examines how new “grid[s] of intelligibility” (Butler, 2001: 629) informed by legal and medical forms of expertise mediate rights claims as well as fuel social imaginary about khwajasaras—making the body of khwajasara legible as a Gender X citizen while also providing a new political context to which khwajasaras diversely respond. My analysis suggests that the new “citational apparatus” (Mitra, 2020: 111) concerning khwajasara corporeality makes khwajasaras “deserving” subjects of state welfare and protection, but only through introducing new forms of welfare surveillance, mediated by legal and medical experts. The paper suggests that as an object of state intervention as well as a means to elude legibility and demand equality and rights, the body remains central to governmental projects of welfare, governance and citizenship.

Striking down of sodomy laws (Section 377) in India in 2018 and the legal recognition of third gender/Gender X in Nepal (2007), Pakistan (2009), Bangladesh (2013), and India (2014) have been widely interpreted as the emancipation of marginalized gender and sexual minorities from colonial laws that have continued to regulate gender and sexual relations in postcolonial South Asia (Hussain, 2019; Gupta, 2006). This paper examines the aftereffects of these legal interventions via an examination of (Baset 2018) how a community of khwajasaras—non-heteronormative, non-binary persons, traditionally identified as hijra and “eunuch” (in the colonial archive), and, lately, as “transgender,” in South Asia—has diversely responded to their legal and medical (il)legibility in Pakistan. It was in 2009 that hijras petitioned the Supreme Court of Pakistan for the enforcement of their citizenship rights. Their appeal was intended, as their lawyer explained, to restore “dignity” to the hijras. The case continued in the Supreme Court for over 3 years, 2009–2012 (see C.P No. 43/2009, SC), and culminated in legal recognition for the hijras—a decision hailed around the globe as a victory for “trans rights.” I argue that the judgment actually functioned to reinforce colonial norms of gender and sexuality, creating a new disciplining “grid of intelligibility” (Butler, 2001: 629) that produces some hijras as newly legally and scientifically sanctioned third gender citizen-subjects and others as politically and socially suspect.

Historically, khwajasaras (categorized as “eunuchs” by the British colonial officials) held authority, influence, and privileges in royal courts in pre-colonial times in India and, thus, the title khwajasara carried notions of respectability and prestige (Preston, 1987). Hijras, on the other hand, referred to persons affiliated with gharanas ([lineage-based communities of chelas [disciples]) led by gurus (elder hijras) (see Nanda 1997; Reddy 2005). These distinctions were neither sharply defined nor strictly enforced as there existed a spectrum of non-binary, non-heteronormative identities that were accommodated in these social categories. However, they were, at times, deployed by communities to create internal hierarchies and sources of prestige and power. As a recent ethnography of Indian hijras has argued, hijras belonging to gharanas continue to distinguish themselves from those khawajasaras whom they allege engage in “unrespectable” labor, like begging and sex work (Saria, 2021: 109). Nevertheless, as I explain below, in South Asia, both khwajasara and hijra identifications have been collapsed into “transgender” category following the higher courts intervention and rights activism that followed from 2009 onward. However, the slippage between transgender, hijra, and khwajasara persists in the activist as well as official discourses, and some hijra communities also self-identify as “transgender” now. Khawajasara legal recognition as transgender persons has allowed a spectrum of queer subjects to be legally recognized as “Gender X” citizens (Trans Action Pakistan, quoted in Maizland 2017; Shafqat 2015), while casting skepticism regarding the “real transgender” persons.

The Supreme Court declared the hijras, who asked the Court to identify them officially as khwajasaras thereon (and I will also use the term khwajasara in rest of this paper to refer to those persons who refuse the hijra normativity of castration and belonging to a gharana or an established hijra lineage), “complete and respectable citizens” and directed government departments to register and provide them with social assistance (C.P No. 43/2009, SC). Delivered in a populist Supreme Court led by a recently restored Chief Justice, ¹ the Court’s judgment was celebrated globally as a win for “transgender rights” (see e.g., Bezhan and Azami, 2011), and was considered by some legal scholars as part of the birth of “judicial activism” in South Asia (Siddiqui, 2015 and e.g., Sunil Babu 2007; Naz Foundation 2009; NLSA 2012; Navtej Singh 2018). I suggest that the Pakistan Supreme Court decision, like others in South Asia, was not a clear victory. Rather, the Courts drew from colonial legal and sociological categories, created to make intelligible and governable non-heteronormative, non-gender–conforming communities who lived outside of “respectable” gender and sexual relationships. Further, the legal decision introduced new skepticism of transgender bodies into postcolonial law, so that the same laws that were hailed as deregulating gender and sexuality from colonial legality actually created new suspicions around persons now identified as/whom self-identify as khwajasara/transgender.

The Pakistani Supreme Court recognized khwajasaras as citizens with equal rights based on what the Court called a “gender disorder” in khwajasara/transgender bodies (the Court unequivocally equated khwajasara with transgender), a “disorder” that was susceptible to be faked by cisgender persons and therefore was to be policed so as to ensure that only the “real transgender” persons pass as “Gender X” citizens, a new category created for persons who self-identified as khwajasara (Khaki, 2009). The Court assumed that khwajasara was an identity that drew its meaning from a physiological difference from heteronormative bodies, suggesting that bodily difference from heteronormative persons was the source of khwajasaras’ social marginalization as well as the cause of indignities they experienced as sex workers, entertainers, and performers, in their survival in peripheral, “undignified” professions.

This paper takes its departure from the Pakistani Supreme Court’s judgment and colonial laws that were enacted to govern those who lived at the margins of heteronormative, heterosexual kinship relations in colonial India; next, I examine how new “grids of intelligibility”—medical, legal, and psychiatric discourses within which khwajasaras’ sexual orientation is understood as natural, social, or “abnormal”—(Butler, 2001: 629) both mediate rights claims for the state, as well fuel the social imaginary about khwajasaras, making the body of the khwajasara legible as a Gender X citizen while also providing a new sociolegal context to which khwajasaras respond diversely. My analysis suggests that the new “citational apparatus” (Mitra, 2020: 111)—medical and legal centers and sources of authority and evidence—concerning khwajasara corporeality makes khwajasaras “deserving” subjects of state welfare and protection, but only through introducing new forms of welfare surveillance, mediated by legal and medical experts. I contribute to recent works in sexuality studies that have examined how state apparatus in the neoliberal era of expanding citizenship rights and protection to historically marginalized communities, particularly those marginalized/stigmatized because of their sexual orientation, has “narrowly defined sexual and gender identity category, the authentic and grateful gay, lesbian, bisexual or transgendered refugee” and folded these identities into “hegemonic narratives” of “good citizenship”; this is a “highly delimited and normative narrative of same-sex sexual citizenship,” which now includes “deviant bodies” but “excludes many others who do not fit the … acceptable performances, characteristics, and/or aesthetics” (Murray 2015, 5; see also Puar, 2007).

In making my arguments, I draw from three sources: legal documents, rulings and court orders in the khwajasara case from the Pakistani Supreme Court (2009–2012), including various policy documents from Social Welfare and NADRA (National Database and Registration Authority) departments submitted in the Supreme Court; medical sources, including relevant research studies and articles published by Pakistan Medical Association and its journal; and, lastly, I draw from an on-going ethnographic project with a khwajasara community in Islamabad, Pakistan. ² I maintain that khwajasara corporeality works as a “critical concept” (Mitra, 2020: 7) that helps in connecting these disparate archives and my ethnography on the evidentiary politics circling khwajasara bodies across colonial as well postcolonial temporalities.

Passing and the Hijra body

With the passage of “progressive” third gender laws in South Asia, in the last 15 years, the transgender identity has been hailed as encompassing all local non-binary identities like hijra and khwajasara, thereby collapsing diverse non-heterosexual historical and lived experiences into the transgender category. In South Asia, in recent decades, the body of the hijra was marked by its characterization as a “deviant” body—a body of risk, a mobile body that was presumed to be a source of spreading HIV and sexually transmitted diseases (Thompson et al., 2013). If recent attention to hijra communities, in the context of state recognition of “transgender rights,” appears to challenge this stigma, such recognition has been mediated, in complex and problematically disciplining ways, by medical, psychological, and legal authorities: “trans emancipation” has become contingent upon the identification of a “disorder,” presumably present in hijra/khwajasara bodies.

The Pakistani Supreme Court decision of 2009 had declared that only persons with a “gender disorder” could be categorized as a khwajasara and ordered the police to sternly deal with those who pretended to be “eunuchs”—a colonial legal category that has survived in postcolonial official usage and refers to colonial (and now postcolonial) state’s perception of transgender bodies (C.P No. 43/2009: SC). In a new form, the legal decision reproduced existing key tropes of pretension, deception, and fakeness through which transgender bodies are often read in legal, medical, and social discourses (Halberstam, 2001; McCune, 2014). The stereotypical image of transgender as a deceiver derives from the idea of the disjunction between “gender presentation (appearance) and sexed body (concealed reality),” and “genital determination” then becomes the authoritative means of determining who may or may not “pass” (Bettcher, 2007: 43, 48). Put differently, as Thomas Billard explains, “central to [the] discourses of trans deception is the concept of ‘passing.’ Those transgender people who show no clear signs of the gender they were assigned at birth ‘pass’ (as cisgender), while those who do show signs fail to ‘pass’” (Billard, 2009: 464). Perceived “as an act of deception,” passing also relies on the idea that real gender is not only concealed but also lies latent within (a trans) body and can only be revealed as well as determined scientifically by means of medical examination (Billard, 2009: 464; Foucault, 1978). Transgender bodies are often observed through the lens of passing, in which the desire to belong as cisgender is seen as an act of hiding the “real” biological gender.

“The principle of latency” lurks under the new legal notion of “gender disorder” too. This “disorder” was assumed to be hidden and was revealed only through genital examination and psychological intervention, in order to fix the disjunction between the real, concealed in the inside, and what is present on the outside (Foucault, 1978: 66). Rather than breaking with long-standing tropes about the “deceptive” transgender body, the new legal decision reinforced and reified legal and medical experts role in determining the “realness,” and thus also potentially the “fakeness,” of the khwajasara identity.

As I discuss later, importantly, khwajasaras are not simply passive objects of this legal and social economy of skepticism and doubt. Rather, they engage with and respond to exclusions based on their corporeal surveillance by legal and medical authorities. But an immediate consequence of the Supreme Court’s rulings was to fragment the hijra/khwajasara community. Following the Court’s decision and both state and non-state measures that followed to implement Court’s orders, some hijras, particularly those who follow the traditional guru-chela (master-disciple) hierarchy and sources of authority in hijra communities, insisted on considering the intersexed and/or “operated” persons—that is, the surgically castrated ones—as the “real” khwajasaras. In contrast, rather than following heteronormative definitions centering on the absence/possession of a penis, for other hijra communities, determination of one’s identity as khwajasara was(is) ontologically determined: based on possession of a ruh, roughly translated as an innate feminine sensibility and/or spirit, within one’s body. Neither radically indifferent nor passively complacent, khwajasaras have responded politically and socially, in sometimes divergent ways, to the postcolonial state and laws. Some khwajasaras have followed the legalized understandings of the khwajasaras as distinctive citizen-subjects, while others have argued for traditional, spiritually based understandings within master-disciple hierarchies as the ontological and social basis for the “true” khwajasara identity.

Colonial laws and hijras’ sexual deviance

Incommensurability between European gender and sexual and local significations marked British colonial state’s hostility toward the hijras/khwajasaras and stoked the legal doubt about the authentic hijra/khwajasara and many who apparently mimicked them for the sake of pleasure and wealth. From the beginning of their encounter with the hijras/khwajasaras, the British officials were perplexed by numerous categories of non-binary gendered persons whom they encountered and reduced under the category of “eunuch,” as in the well-known Criminal Tribes The Criminal Tribes Act, 1871. The Act defined who the colonial state considered a “eunuch”: “The term eunuch shall be deemed … to include all persons of the male sex who admit themselves, or on medical inspection, clearly appear to be impotent” (The Criminal Tribes Act, 1871; emphasis added). The “eunuchs,” then, the Act continued, could not inherit property, adopt a son, make a will, or act as a guardian to a minor, privileges that khwajasaras had enjoyed before the consolidation of British rule in India (Preston, 1987).

While Part I of the Act discussed roaming “Criminal Tribes” (that threatened villages settlements planned by the British) it is in Part II that we can see how the colonial state introduced skepticism regarding hijras and their corporeality into law. Under the title “Eunuchs,” the Act directed local authorities to keep a register of all those “eunuchs” in their areas who were “reasonably suspected of kidnapping and castrating children or of committing offences”; any “eunuch,” who was found dressed as a woman and/or dancing in public, was to be arrested, while any boy, under the age of 16 and found to be under the tutelage of a “eunuch,” was to be returned to his parents and the “eunuch” was to be punished (The Criminal Tribes Act, 1871; emphasis added). As highly mobile and therefore, suspected of criminal activities, “eunuchs” were legally forbidden by the Act to cross-dress and were directed to register with the local police (so they could be kept under surveillance locally). The mobility of local communities and fluidity of their everyday identifications did not align with the project of consolidation of colonial rule, aimed at subjection of, and revenue extraction from, the natives that followed the violent uprising against the British in 1857, called “mutiny” by the former and remembered as war of independence in Indian historiography (Bhattacharya, 2019). Transgressive populations, such as the khwajasaras, had historically eluded fixed categories of gender and sexuality and lived outside heteronormative patriarchal kinship, and, thus, had remained relatively free of place and blood boundedness.

Along with reducing the various shades of local gender categories to the “impotent eunuch,” the colonial state employed the notion of medical deviance to declare hijra body a criminal body. “Hijra deviance,” medical experts claimed, was a product of “sodomy, impotence… failed masculinity,” all of which supposedly fed a man’s psychological desire to present himself as a woman (Hinchy, 2013: 204). According to these experts, “impotence, sodomy and effeminacy existed in a triangular causal relationship; impotence and sodomy both resulted in effeminate embodiment, while habitual sodomy often caused permanent impotence” (2013: 204). The Act of 1871 forced hijras to register themselves with the local police and prohibited them from giving public performances or donning women’s clothes.

Nevertheless, the long legal shadow cast by the Act of 1871 meant that khwajasaras’ cross-dressing—perceived as a sign of “failed masculinity”—came to symbolize hijra “deviancy.” This rendered suspect various non-binary, non-heteronormative sexual identities, so reinforcing the binary, within which masculinity and its failed Other persisted. The hijra body was a suspicious, mobile body for state authorities—made suspect by its gender fluidity and social transgressions. In an 1884 legal case, Queen Empress v. Khairati, colonial medical experts were called in by the court to investigate the khwajasara body and their “deviant” sexuality, via the passage of section 377 of the Indian Penal Code that dealt with acts of “sodomy.” Identified as an “eunuch,” Khairati (meaning beggar or “vagrant”) had been arrested for wearing women’s clothes and was charged with sodomy; dressing in women’s clothes in public, and singing and dancing in the company of women, were legally sanctionable signs of deviancy or a moral “disorder” (Arondekar, 2009: 68).

The court asked a police surgeon to examine Khairati, and his examination revealed Khairati “to have the characteristic mark of a habitual catamite – the distortion of the orifice of the anus into a shape of a trumpet – and also to be affected with syphilis in the same region in a manner which distinctly points to unnatural intercourse within the last few months” (2009: 68). Although Khairati denied the charge of sodomy, they were convicted by the Sessions Court. Subsequently, the Allahabad High Court overturned Khairati’s conviction because of the lack of precise evidence regarding the time, place and identity of the other person(s) involved in the act of sodomy. Despite the acquittal, the court accepted the Crown medical examiner’s assertion that Khairati had indeed engaged in sodomy: their dressing up/presenting themselves as a woman, “the misshapement [of Khairati’s anus] and the venereal disease,” all confirmed to the court that Khairati was a “habitual sodomite” (Arondekar, 2009: 68).

In this way, colonial laws regarding “eunuchs” and their sexual offences opened the body of the hijra, and those other bearers of “deviant sexuality,” for medical-legal inspection in order to locate evidence of their deviancy inside their bodies. As Durba Mitra has argued, new claims about sexuality were made in the development of modern forms of legal and medical knowledge during colonial rule in India. “Legal scientific inquiry,” she argued, mapped “a new terrain of legal intervention” into intimate social life of Indians by introducing notions of sexual deviance, defined as existing outside middle-class, respectable Hindu and Muslim marriages (Mitra, 2020: 67). The “unknowability” of the sexually deviant others, for example, “the prostitute,” was construed as a threat because their deviant bodies were “mobile” bodies, that is, they lived outside respectable heterosexual relationships (Mitra, 2020: 7). Like “the prostitute,” the hijra, was a slippery category, difficult to pin down and regulate. As a presumed carrier of “gender disorder,” the hijra body would continue to be probed to locate “deviancy” within them, and a century later, the hijra body would once again be used to validate their “authenticity” as a trans body in the new legal category of the khwajasara/transgender.

Local non-binary sexual categories, which had existed before the British conquest, troubled the new rulers’ efforts to rationalize and fix bodily categorization based on masculinity, impotency, and castration. By linking potency to masculinity, and masculinity to property ownership, the hijras were thus excluded from the bourgeois rights of economic and social reproduction. It is the denial of fundamental constitutional rights to hijras—specifically, the right to inherit property—which prompted hijras to petition the Supreme Court of Pakistan in 2009. If, as I have briefly discussed, the Supreme Court responded favorably to their plea, the Court’s judgment reproduced historical disciplining of deviant sexuality norms, thereby giving new life to colonial legal categories, reifying medical expertise on the khwajasara and in the process enhancing rather than diminishing social skepticism regarding khwajasara corporeality.

The Hijra Body and their Medical, Psychological and Social Deviations

In the History of Sexuality (Volume 1), Michel Foucault suggested that from the nineteenth-century onward, “medicine,” “psychiatry,” and “criminal justice” emerged as the key “institutional devices and discursive strategies” deployed to know and manage the sexuality of adults and children (Foucault, 1978: 30). Everyday sexuality and its bearers (and not only the “abnormal” types) became a concern of science and law (Foucault, 1978: 31). Rather than maintaining silence or repression, new categories of sexuality emerged from the deployment of legal and scientific lens claiming to speak “truth” of sexuality. The invention of new categories of “deviation,” “the ‘ill’ behavior that need be resisted or cured,” created new opportunities for “increased surveillance” (Spade, 2003: 25). In other words, the invention of a category, like that of the “homosexual,” does not silence speculation but rather creates space for new forms of surveillance in a generalized climate of doubt that is led by ideas of normative (un)belonging. Similarly, khwajasara, as a new legal-medical category of amorphous belonging since the 2009 Supreme Court decision, has created new forms of speculation and doubts about who belongs and who doesn’t (as a transgender/khwajasara), on the basis of new, if contested, medical and legal boundaries.

Historically, the hijras and many other non-binary gender persons did not exist as suspect figures in the modern South Asian social imaginary. Efforts to standardize the khwajasara identity and to define the “real” khwajasara, have followed postcolonial courts’ attention to “transgender rights” in South Asia. As Aniruddha Dutta explains, with respect to the Indian context:

Over the last two decades, gharana-based hijras have actively undertaken to define … ‘authentic’ hijras as a minority in collusion with [non-governmental organizations] NGOs and the media [in India] … This attempted construction of the hijra as a bounded lineage-based group increasingly separates hijra from non-hijra (kothi, MSM) identities in NGO, state and media discourses … such that who can identify as hijra becomes more circumscribed at the level of official discourse, and potentially, lived reality. (Dutta, 2013: 311)

If Dutta’s formulation rightfully points to the ways that the new narrower legal definition of hijra identity pathologized other non-gender–conforming identities (based on belonging to certain established lineages and corporeal markers of hijra identity), her account does not recognize the agency of those newly stigmatized. That is, how they have challenged traditional forms of authority and hierarchy that barred them from belonging to the hijra community. In Pakistan, many khwajasaras, particularly those excluded from the hijra identity have fought back, challenging their exclusion.

Hijras were considered historically and traditionally an intrinsic but peripheral part of the mohallah society, that is, the middle-class neighborhoods of urban and semi-urban South Asia (Reddy, 2005). Often, they were the uninvited guests who colored weddings, births and other celebrations by their performances. Their curse was thought to be deadly and their prayer sought and considered potent for fertility. All the same, their mythic character is on the wane. The so-called war a terror, the rise of militant Islam and piety movements in various parts of Pakistan; growing social and religious indignation over sufi shrines and the urs (annual celebration of the founder of sufi orders and/or shrines) that take place there annually, in which a large number of khwajasaras perform for weeks; massive and uneven urbanization, and a shift in wedding venues from the mohallahs to the new entertainment economy of wedding halls and DJs, have made these figures increasingly obsolete and their presence vexing. They have been now pressed into and, thus, circulate within other peripheral roles—as sex workers and panhandlers—found outside the respectable middle-class social and economic life. Their “true nature,” as it were and their socially significant and accepted, if marginal, role is now in question—and it not only the postcolonial state that approaches them with a toxic skepticism (Koepping, 1985: 210).

Suspicion about the khwajasara body, centered on its politics of “passing”—suspicion both of “passing” and of failing to “pass”—is embedded in legal as well as medical and social forms of knowledge that advance by means of a “citational circularity” (Mitra, 2020: 114). That is, through “circular modes of citation, anatomical description, and social commentary,” the medical-legal investigation produces “an epistemic correlation between observations of bodies, … sexual deviance, and the everyday event[s]” of deception and transgression (Mitra, 2020: 114). These forms of expertise seek certainty by means of scientific, evidentiary practices and claims to make the body of the hijra—a body that has evaded historically categorical boundedness—legible.

Demystifying the sexual ambiguity of the Khwajasara

Since the colonial disciplining of khwajasaras, that produced them as subjects of a legal discourse which gazed with suspicion their corporeality and public lives, medical sciences and their experts have been a constant presence in khwajasara encounter with the law. In fact, this is commonplace around the globe, including in contemporary contexts, where courts have often relied on “medical evidence to establish gender identity” (Spade, 2003: 16). It is perhaps unsurprising then that medical experts have claimed to demystify the sexual ambiguity of the khwajasara in contemporary Pakistan too. In 2014, a research report published in the Journal of Pakistan Medical Association, claimed to discard the myths surrounding khwajasaras’ “ambiguous genitalia” (2011). Based upon the findings following a visual examination of bodies of four hundred khwajasaras, who “consented” to take part in the study, the report rejected the commonly held view that khwajasaras have “ambiguous genitalia, are hermaphrodites or have undergone removal of male sexual organs” (2014: 696). The researchers reported that out of the four hundred khwajasaras examined, the penis was absent only in three. As the colonial state drew an unequivocal boundary between masculinity and its opposite, based on the presence/absence of a reproducing penis, here, the medical experts are at pains to conclude that difference immutable. The transgression of binary gender categories, assumed to be based on immutable anatomical differences—that there exists only “one absolute material determinant of sex” (Malatino, 2009: 81)—generates anxiety both for the state and legal and medical experts. Together, they continue to seek to establish the “true” if hidden “nature” of the khwajasara.

It is not only khwajasara anatomy that has come under the scientific, medical scrutiny, but also their psyche. A study, titled “Self-Esteem Among the Eunuchs of Hazara Division, Pakistan,” carried out by psychologists, places khwajasaras’ marginalization in a socio-economic context and suggests that khwajasaras lack self-esteem and confidence because most were never formally educated. In this study, quantitative analysis builds upon a questionnaire collected from 140 “eunuchs” and is used to conclude that “most of the time eunuchs experience low self-esteem and confidence without any locus of control” (2014: 179), thus reducing khwajasaras passive social subjects without agency to act upon and challenge their socio-economic marginalization. Khwajasaras are not only marked in their bodies, rather the medical establishment diagnoses a lack (lack of self-esteem), of a deep injury in the psyche of the khwajasara. The Pakistani Supreme Court had also defined what it called a ‘gender disorder’ in khwajasara bodies and because of which the Court considered khwajasara entitled to their rights, in reference to this unspecified notion of lack or an injury on the psyche of the khwajasara.

In its 2009 ruling, the Court directed the state to ensure that only those persons who truly carried “gender disorder” within their bodies were extended state’s protection and welfare. The Court distinguished those khwajasara who deserved, were worthy of, legal recognition from the “criminal types,” whom the Court suspected of faking the bodily “disorder” in order to fraudulently access legal rights and state benefits. The Court made a sharp distinction between “respectable” legally sanctioned “eunuchs” and those who merely forged gender “disorder”:

It is informed that in the name of unix [eunuch] some male and female who are otherwise have [sic] no gender disorder in their bodies [bring] a bad name … to unix. This aspect is to be checked by the police of the area where such like people are operating … These matters … can be considered by the Government quite conveniently with a view to provide them protection and respect so they may also spend their lives in a respectable manner. (C.P. 43/09, SC)

Construed through the epistemic lens of “gender disorder,” the Court produced a modernist, dualistic understanding of the khwajarsara body—a body whose inner pathology is inferred by the social stigma outside and confirmed by genital examination by medical experts, who then further infer a psychological or psychiatric gender “disorder” invisible but inherent within the legally sanctioned khwajasara body. As a transgender body, the khwajasara, then, is “perceived as finite, sanctioning a mode of ‘inferential thinking’” that moves from the outside, the “‘visible indicators on the surface,’” that is, the genitals that do not correlate “‘to invisible traits held inside the body’” (Mitra, 2020: 120). Hence the “fake” ones, the “criminal” types, emerge as those persons whose inside, where their gender “disorder” ought to be located, does not correlate with their outside, their genitals, and that is what they are presumed to be allegedly hiding under the feminine garb/dress. The supposed (mis)correlation between the malleable and manipulatable inside and the material outside connects the circularity between medical and psychological experts with legal experts on “criminal” types and unites the “episteme” on khwajasara “gender disorder” (Mitra, 2020: 121).

The Supreme Court extended state protection to khwajasaras, construed as vulnerable and deserving of the protection of the state, but not to those persons who falsely (or superficially) assumed the khwajasara identity, seen as criminal elements whose dissimulation is aimed at taking advantage of the state. The expansion of liberal politics of recognition, as David Murray has argued in the context of SOGI (Sexual Orientation and Gender Identity) refugee claimants’ dealings with the Canadian immigration apparatus, often “folds certain queer subjects into life” while simultaneously labeling and rejecting others (2015, 7). In the Pakistani context too, the Supreme Court put the responsibility of identifying the “real” khwajasara on the state. The ruling thus stated: “So far, Interior Ministry has not consulted with the NADRA [National Database And Registration Authority] for the purpose of recording the exact status of unix in the column, meant for male or female after undertaking some medical tests based on hormones” (C.P. 43/09, SC, emphasis added). Ambiguously defined hormone test requirements, however, were dropped in the Pakistan Protection of Transgender Rights Act (2018), passed 9 years after the Supreme Court ruling. This law is now under challenge in Federal Shariat Court of Pakistan. ³

Social commentary on khwajasaras and the new hijra normativity

Suspicion about the “real” khwajasara and how to discern the truth of their body and psyche, therefore pervades the medical and legal discourses on khwajasaras in Pakistan. This skepticism is even shared by the lawyers who took the khwajasara petition to the Supreme Court. Their views are symptomatic of the prevalent social commentary on khwajasara corporeality. Both the lawyers were deeply dismayed after their close encounter with the khwajasara community. It took me weeks to convince them for an interview, as they repeatedly told me they had “moved on” from the khwajasara case, because, they claimed, they had discovered that there were very few “real” khwajasaras and the rest were simply imposters. It seemed as if they had inadvertently un-covered the truth of the khwajasara, whom, according to them, were, basically, potent, “psychologically abnormal” men, who wear the mask of the khwajasara. One of these lawyers thus drew a distinction between the “real” khwajasaras, whose intersex bodies confirmed their true nature, and the hidden, “fake” psychologically defined khwajasaras, who have a corrupting influence on young boys and on society as a whole when they mingle with them as khwajasaras. ‘True' khwajasaras are naturalized, while “fake” khwajasaras, so defined, are deemed ill, deviant; one of the lawyers explained thus in their interview:

Biological khwajasaras are very few, and they are the ones who have both the genitals [that is, they are either intersex and/or hermaphrodite] … Most are psychological khwajasaras … who once having reached the age of puberty, start to cross-dress; they love to put make-up on, dress up like women, sit [dressed as women] in the company of other males … People exploit these [feminine] traits present in these boys. This means that if there exists even some psychological drives in these boys and if you give them a way to enjoy the company of men as women, their exploitation will never end and these habits will not go away. So, we think that we should not encourage it [their behavior] and take it as a beemari [illness] … No matter where they are from, they have a psychological illness. It’s not a biological but a psychological deviation. (emphasis added)

These legal skeptics construe the psychological deviation as a moral deviation and see the contradiction between bodily appearance and its biological “innateness” as a sign of illness. But for their psychological illness, the uncastrated khwajasaras are “normal boys,” according to them, who should live heteronormal lives. The lawyers’ moral anxiety multiplies when these, whom they call “psychologically disturbed,” men transgress social order, including the social order of biologically “confirmed” intersex khwajasaras, as they blend with other men as women in the guise of khwajasaras.

One of these lawyers went on to tell me the story of how khwajasaras conceal their biological real under the feminine garb; someone whom he had known for over 15 years as a khwajasara bewildered him as, once, the lawyer encountered them in a bazaar wearing “man’s clothes.” The instability or fluidity of the khwajasara was seen as pathological, indicative of the deceptive nature of the majority of “fake” khwajasara, a form of “passing” that ultimately threatens to upset supposedly stable, biologically rooted gender orders.

Khwajasaras, however, often have to switch clothing, in order to pass so they can maintain their past family relations and find “respectable” labor. Nasreen, a khwajasara guru (elder, senior khwajasara), explained to me: “Most of us find a refuge and a guru far away from our hometowns. And when we visit our families … we put on normal [that is, men’s] clothes. Our families will never let us enter their homes, they would not accept us, if we went just dressed as a khwajasara [dressed in women’s clothing].” Dress is thus a key modality through which khwajasaras can establish territorial mobility between their derra (a communal home for khwajasaras headed by a guru) and their familial homes.

Moreover, recall that dressing up/presenting oneself as a woman was criminalized by The Criminal Tribes Act, 1871. Today, cross-dressing is still considered a bodily marker of transsexuality in South Asia. Many khwajasaras, however, cross-dress regularly—to circulate between, embody and perform various familial and professional roles. One of the early corporeal signs of hijrapān ⁴ (a set of nonnormative corporeal and symbolic markers, such as dress, bodily gestures and speech) that enrages the families is their young sons affinity for women’s dresses. Ridicule and abuse follow young khwajasaras when some dare to cross-dress publicly. Dressing up as a “man,” a practice that many khwajasaras I met, follow, and which might be seen as a partial bow to heteromasculinity, a practice that elsewhere, has divided the trans community (Urquhart, 2017), allows khwajasaras to maintain past kinship relations while building new ones.

Following the Supreme Court decision and rights activism that ensued, the hijra identity, one that had attracted and accommodated all kinds of non-heteronormative, non-binary gender roles, fragmented further. The hijra community split between those persons who had undergone and/or desired castration or were born intersex—the lawyers, the Court and medical authorities all argued these to be basis for identifying the “real” khwajasara—and the ones who had refused to define themselves against a criteria that centered on the removal of genitalia only. Many khwajasaras contested the idea that “renunciation of male sexuality through the surgical removal of the organ of the male sexuality” (Nanda, 1997: 15) is the defining element of the khwajasara social identity.

Nasreen was once married and had a son. Castration would have meant ending all her ⁵ past kinship associations. Nasreen explained, “some [khwajasaras] are [surgically] operated upon so they want us to be castrated too. Those who are operated, want us to become like them. But if we get operated, all of our family connections will have to be severed.” All translations from Urdu to English are by the author. The khwajasaras like Nasreen are acutely aware of the biopolitical gaze—of the many experts, their own families as well as of other khwajasaras—that captures, reveals and shames bodily deviations from a new hijra normativity, based on corporeal signs of castration or being intersex, which emerged following the activism for ‘trans rights’ after the Supreme Court’s rulings. In refusing castration, they refuse this new hijra normativity, but they do not simply reinforce the disciplining gaze of their families, who will not accept them if they undergo surgery and dress in women’s clothing. Rather, by insisting on their right to fluidity, khwajasaras trouble both orders which seek a naturalized gender fixity and permanence.

Even passing often fails when khwajasaras encounter the pervasive biopolitical gaze that constantly surveils for signs of their masking of themselves as cisgender. Shabnam, a khwajasara who lived at Nasreen’s derra and was searching for “respectable” employment when I met them, explained: “No matter how hard we may try to conceal ourselves, people somehow find out about us. No matter how manly we may dress, the world somehow finds out about us [that we are indeed not ‘real’ men].” Although dressing up as a “man” might be seen as a partial bow to the demand of heteromasculinity, even marrying and siring children does not satisfy skeptics like the Supreme Court judges and khwajasaras’ lawyers, who see this as a form of deceptive, if elaborate “passing.” In the view of the dominant medical and legal establishment, that a khwajasara sometimes dresses in male clothing and becomes a father is symptomatic of an unnatural psychological deviation—an illness that must be cured—a deviation that must be re-directed to its “natural” course.

Khwajasaras are painfully aware of the ambivalence and anxiety inherent to their gendered marginality and sexual transgressions. Performing gender ambiguity (Khan, 2016) many benefit from their liminal transgressions—as performers as well as sex workers and even as panhandlers. However, the ruling of the Supreme Court and transgender activism for rights that ensued, offered them a way to reimagine themselves from a citizenship lens as respectable and dignified citizens of Pakistan—a “victory” that depended, ambiguously, on a legally and medically sanctioned gender identity that was accepted as authentic only by the courts and the state because of a diagnosable, visible “lack” located inside khwajasara bodies.

Unsettling Hijra corporeality: “The Ruh within us”

Self-transformation and community formation

To understand khwajasara agency and struggles for self-determination as khwajasara, I turn to the advocacy of Nasreen. In her late 40s, Nasreen headed a derra, which she claimed was a refuge for those khwajasaras who had left, were forced to, or wished to withdraw from the guru-chela hierarchy that defined the new hijra normativity the khwajasara identity challenged and destabilized. Nasreen’s derra was in a working-class neighborhood outside Islamabad. Derras are transient spaces that attract wandering, mobile khwajasaras, where they find shelter—and even protection from their indignant gurus. They are also the places where various non-binary, non-heteronormative bodies come together. Nasreen, albeit a khwajasara guru herself, was in rebellion against the traditional hijra guru-chela hierarchy and recognized Supreme Court ruling on Gender X rights and the rights activism that had followed as a means to challenge the hierarchy that tied chelas in debt to their gurus. These legal and activist interventions had, moreover, and importantly, provided a new way to imagine and live in the world as a khwajasara, outside of the guru-led social order that attached, often violently, khwajasaras to their gurus.

Indeed, in Pakistan as in India, “seniority” is the “major principle of social organization and social control in the hijra community” (Nanda, 1997: 43). “It is expressed,” Serena Nanda has explained in the Indian context, “in a hierarchy of gurus (literally, teachers) and chelas (literally, disciples). Every hijra has a guru, and initiation into the community occurs only under the sponsorship of a guru” (1997: 43). Gurus establish their own house or derra and collect some permanent and a few passing members. The members contribute both through their labor and income as well as help with the household chores. In return, they are provided protection, shelter and work by their gurus. Nanda further explains that the gurus’ houses are not “ranked … it is difficult to find any meaningful distinction among them … Nor are the hijra houses exclusively associated with any particular way of earning a living. Members of all houses engage in all kinds of work” (1997: 39). These houses are significant in hijras’ lives and they see them as “analogous to a family” (1997: 39), including strong economic relationships that bind many families. After leaving their family homes (ghar), derra becomes the spatial and socio-economic structure of initiation into the kinship of fellow khwajasaras. Although guru-chela relationship is “difficult and debt-ridden,” it also “confers legitimacy and self-assurance of the ‘real’ hijra” (Reddy, 2005: 157).

If a few khwajasaras succeed in managing their professional lives independently, even those who do not live at a guru’s derra still admit allegiance to a specific guru. Between ghar, the family home that one has left or been expelled from (and that can only be re-entered by adopting gender-conforming clothing), and the guru’s derra, which has its own hierarchical sanctions (and sometimes exploitative economic relationship), khwajasaras have few spaces of protection and care. The Supreme Court’s offer of security and the promise of state welfare intervened in that social space of violence, pleasure, and transgression that most khwajasaras live in. Some, like Nasreen, saw this as an opportunity to reshape the guru–chela relationship, while others saw this as a threat to khwajasaras self-determination and the control of gurus over their derras. Still others sought to reposition themselves as the exclusively legitimate khwajasaras, drawing on the narrow biological definitions of the Supreme Court.

A number of hijra gurus, like the famous Almas Bobby, who was one of the petitioners in the Supreme Court, alleged that the “unoperationed” persons were fake hijras. They were men disguised as khwajasaras, Bobby claimed. As their lawyers had also declared, khwajasaras who possessed male genitalia were not real hijras. The lawyers had been indignant about those persons whom they regarded as “fraud hijras”—the khwajasaras who didn’t have both (ambiguous) genitalia by birth or were intersex. Their skepticism regarding the authenticity of the hijra identity was shared by some khwajasaras too. Nasreen’s challenge to hijra corporeality nevertheless disrupted the contradiction between mind and the body that the medical and psychological experts considered to be the cause of khwajasara “moral deviancy” and their “abnormal diversion” from respectable, heteronormative lives.

Nasreen contended that the possession of a female sensibility and a spirit in one’s body, rather than a psychological “deviation” within oneself or the dispossession of a penis (according to the medical and legal discourses on the hijra), unequivocally defined a khwajasara. Responding to the medical-legal contestation regarding the “real” khwajasara, Nasreen argued, rather than physiologically determined or surgically achieved, it was possession of a “ruh” (spirit as a form/sign of/representing life) within one’s body that defined one as a khwajasara. Nasreen further explained: “Allah has given me a man’s body but the ruh within me, the genders within me, the hormones inside me, they are all female. Who will check all this [inside me]? A doctor? A psychiatrist? In a world so scientifically advanced, they (the experts) still cannot understand us [and she laughs!].” Nasreen thus contested the “traditional” understandings of surgical castration as the “corporeal marker” of the hijra “sociality and identity” (Reddy, 2005: 98), arguing instead that possession of a feminine ruh within oneself obviated the defining of khwajasara through means of corporeality only, and expanded the category of khwajasara to include all those persons who had historically lived with diverse corporeal as well as incorporeal gender markers. Nasreen’s response to medical and legal experts, who had apparently all failed to find the “truth” of the hijra, was a most creative one: “Listen, we are ‘mourats’ ”, she triumphantly declared! A moūrat is a product of part mārd [man], part āurāt [woman] in Urdu language. The split, according to this redefining of khwajasara outside the hijra normativity, was then not between biology and psychology, nature or culture, but, rather, according to Nasreen, her spirit and her body were apart; and, therefore, it was her spirit that determined her ontological self-understanding as a khwajasara, making her corporeality and castration, specifically, irrelevant.

One is made a mourat, Nasreen further explained to me, by “qudrat” [nature as created by God]—mourats were mourats by creation (they were born as mourats) and therefore did not require corporeal validity through castration—a traditionally valued sign of hijra authenticity. Mourats, Nasreen explained, were born with multiple, diverse desires and they nurtured feminine sensibilities in a male body. This difference from cisgender bodies as well as hijra normativity had to be protected, and castration would have erased the natural essence, would have distorted and laid to waste a God-given gift. Castration was a choice that Nasreen and many khwajasaras like her, refused.

Nasreen challenged the traditional authority of the gurus by collecting those khwajasaras at her derra who claimed a similar khwajasara identity and who refused medical or surgical determination of their corporeal difference from other genders. However, the court-backed recognition from the state, for addressing the khwajasara social and economic marginalization was now at stake too. The Supreme Court’s rulings and the ensuing activism had provided many gender-fluid, non-heterosexual, non-binary, self-identified khwajasara/transgender persons, who refused to conform to the hijra normativity, with a new imagination to demand recognition as a “community”—a community of khwajasaras in the making—that related to khwajasara identity in ways that refused medical or surgical validation as a sign of the authentic hijra.

Conclusion: body and welfare surveillance of passing

In this paper, I examined how medical experts and legal authorities make the body of khwajasara legible in order to recognize their eligibility for rights due them because of their historical marginalization. For the colonial state, the hijra body was a suspicious body, garbed by gender ambiguity that escaped categorical identification and their social transgressions confirmed skepticism about their veracity. Ironically, it is the body’s immanent illegibility, defined in terms of a “gender disorder”—postcolonial courts and medical experts seek to locate this aberration in the khwajasara body—that has made it “deserving” of fundamental rights, celebrated by trans rights activists as an enlightening act of judicial activism in South Asia.

This form of welfare surveillance however produces categories of deserving citizens by building upon existing, as well as introducing, new modes of regulation that decide who may or may not belong in those categories. The recognition of khwajasaras as subjects of state welfare and protection introduces modes of watching that feed into politics of passing—an ambiguous and contested space of survival and resistance for transgender communities—and stoke skepticism regarding non-binary, non-heteronormative bodies circulating between and connecting various sites of knowledge and governance. These medical, legal and social sites of advocacy, research and welfare figure centrally in contemporary struggles over khwajasaras identity among legal and medical experts and the state, but also within khwajasara communities, where new contested understandings of who may legitimately call themselves transgender/khwajasara play out.

That “sexuality undergirds the organization and boundaries of nation-state, citizenship and national identity projects” is now well-studied in sexuality and queer studies (Murray, 2015, 7; see also Haritaworn et al., 2014). In examining the aftereffects of the Supreme Court decision and the colonial legal and social categories the Court drew from in its rulings around khwajasaras, I have asked how the body, particularly, it’s interiority—both in terms of how it fails to be captured through existing “grid[s] of intelligibility” (Butler, 2001: 629) and how queer and trans communities respond to them—figures simultaneously in welfare projects of protection of vulnerable, minority populations and in how new pathologization of bodies considered illegible within the new disciplining grid of medically and legally recognized third gender bodies takes place.

Ironically, there are significant continuities between the recent trans rights “victory” in Pakistan and liberal legality in the colonial period, not least legal inquiry’s categorical reliance on scientific, medical evidence. This unequivocal reliance introduced an evidentiary politics of the body, in law, and more broadly, socially, that continues to undergird legal-liberalism’s encounter with non-heteronormative, non-binary communities in postcolonial South Asia. Medical and psychological sciences continue to be called in to aid the courts in new projects of welfare and protection geared toward protecting sexual minorities. Law’s role in liberal sexual politics raises deep skepticism regarding liberal law as a site of decolonization of laws regulating gender and sexuality in postcolonial South Asia, but the khwajasara are not simply produced in and through the law. Rather, in their agency, Nasreen and others adamantly “constitute themselves as subjects of rights in relation to”—and, I suggest, against—“existing histories and hegemonies” (Subramaniam, 2009: 4).