The handbook on combating gender stereotypes, released by the Supreme Court (SC) is a welcome document: Not only does it point to the gender-based prejudices embedded in legal discourse, it offers straightforward replacement words that are respectful. For example, “chaste woman”, “career woman”, and “concubine” are simply to be replaced with “woman” without the moralistic adjectives.
While primarily (and admittedly) focused on cisgender heterosexual women, the handbook points to the vulnerability of sex workers and transgender individuals to sexual violence and how sexual violence reinforces caste hierarchies. The glossary also contains a few prejudicial and violent terms used to describe queer identities.
The handbook succeeds the Sensitization Module for the Judiciary on the LGBTQIA+ community, brought out by the e-Committee of the Supreme Court on Constitution Day last year. The module meticulously collates legal developments around queer persons in India, a glossary of appropriate terms and, perhaps most usefully, protocols for police authorities and courts.
It introduces key conceptual terms related to gender and sex, and warns against some baseline prejudices such as using the language of preference instead of orientation when talking about sexuality; assuming the gender identity and pronouns of a person from their assigned gender or stereotypes of gender expression; conflating intersex and transgender identities; and using the terminology of ‘sex change’ instead of ‘gender affirmation’ in the context of transitioning. This is a welcome shift for the SC, which has not exactly had a shining record in this regard. One may recall, for instance, the 2013 Suresh Koushal judgement that cited the statistical minimality of queer persons and recriminalised queer persons under Section 377, or even the progressive 2014 NALSA judgement that barely grasped the nuances of transgender identities.
As legal practice develops around queer persons asserting their rights as queer persons before courts, language will inevitably become a site of hot contestation. However, a general glossary of terms such as the handbook on gender stereotypes may still be some time away. For one, the question of appropriate terminology is an evolving discourse within queer movements. Secondly, queerness appears in diverse idioms and forms in South Asia. There are forms of queer sociality that don’t coalesce around identity formation; queer identities aren’t necessarily stable or fixed, nor do queer community/individual identities necessarily form on the axes of gender or sexual identity. Thirdly, legal practice in this country occurs in multiple languages. Thus, translating and mapping this field of identities onto administrative and legal practices will be messy, contradictory and without easy answers. Here, the apex court can play a facilitative role precisely by articulating the principles and framework within which the language and practice of law develop and thickens in local contexts.
The task before the court is a difficult one. Unlike the ‘woman’ subject that has a legal history spanning several decades, it is only in the last two decades that the queer subject in law has slowly shifted from being one of abjection, condemnation and invisibility towards one bearing rights and dignity. Thus, the sensitization module was both pedagogical and corrective. In fact, the protocols in the module deal with a few issues that have witnessed considerable judicial attention since the NALSA judgement in 2014. One is the self-determination of gender identity on ID documents, while the other is the practice of parents filing habeas corpus petitions against adult queer persons residing with their partners.
Given all of this, what are the possible ways of taking this sensitization and inclusivity initiative of the apex court forward?
Firstly, the judicial system must acknowledge the role of caste in shaping the system’s norms, outcomes and its internal geography of power. Both the handbook on stereotypes and the sensitization module treat gender as divorced from caste. Both pay scant attention to the ways in which caste shapes legal language, practices and outcomes for cisgender-heterosexual men, women and queer persons. As Nikita Sonavane and countless other scholars and activists remind us, if gender is a system of power, its genesis in the Indian subcontinent is caste. This is crucial for the queer movement’s engagements with law.
For example, as transgender persons fight for horizontal reservation in universities and government jobs, doctrinal and cultural prejudices in courts around reservation become obstacles. Similarly, stereotypes of the proximity of trans persons to criminality and sex work cannot be reduced to gender alone – these have long histories of caste. A handbook that explicates these underlying prejudices and explains how they produce discriminatory outcomes for trans persons would be a crucial intervention in this regard.
Secondly, courts work with a heteronormative imagination. They consider the upper caste, property-owning heterosexual cisgender couple to be the norm. Any deviance from this makes one an improper subject of rights. The court, as parens patriae (paternal authority), finds it near impossible to see certain exercises of autonomy – women quitting marriages, people marrying across the religious divide, trans persons exiting violent natal families, queer persons entering into voluntary networks of kinship unrelated to blood or marriage – as legitimate. In any case, the edifice of personal law is built around the male/female binary and caste endogamy.
Within these broader structural problems, prejudices only worsen the struggles on ground of queer and trans persons. For instance, transgender men are routinely infantilized by their parents, courts and the police. They are denied the autonomy to refuse heterosexual marriage or to choose their partners. Similarly, the ideological centrality of sexual intimacy in marriage often forms the basis of provisions like the restitution of conjugal rights, which leaves queer persons in forced marriages with no legal remedy against sexual violence or forced intimacy. Queer persons should have the right to self-determination in their personal and social spheres. This recognition needs to go beyond being a textual principle — it must inform the worldview of courts. Courts need to clearly see the violence of traditional social structures and uphold choices that undermine and destabilise them.
Finally, the hegemony of the male/female binary pathologises trans persons. Though the NALSA judgement affirmatively rejected the need for surgical intervention to allow trans persons to change their gender in ID documents (requiring only the testimony of the trans person to choose their gender identity), the Transgender Persons (Protection of Rights) Act 2019 returns the transgender subject to the mercy of the medical and the bureaucratic establishments. The sensitization module importantly recognised that sex is a socially constructed category as well, and not a naturally occurring immutable characteristic. However, on the ground, a medical test to prove gender identity is often asked by police officers, bureaucrats, prison officials and judges. Consider, for instance, a writ petition before the Madhya Pradesh high court, where the husband alleged that his spouse was not a woman. The high court rejected constitutional arguments and compelled the spouse to undergo examination by a doctor, framing it as a matter of evidence shorn of liberty-restricting consequences. Legal practice needs to imagine intersex and trans subjects as legitimate and capable of exercising autonomy – not just deviant objects to be punished or patronised.
If the handbook and the module are to be effective, they must be the inauguration of a continuing judicial intervention that equips queer persons to resist a deeply entrenched belief system on the ground. The leads suggested above are invitations to articulate existing and anticipated obstacles and to devise creative solutions. The Madras high court has led the way in this regard. Practice guidelines, protocols for police and prisons, vernacular translations and regularly consulting trans and queer communities – these are some of the ways in which the apex court’s initiative should be taken forward.
Nilanjan Dey is a Delhi-based lawyer.
