By Muhammad Azfar Nisar
Legal recognition of gender non-conforming individuals remains an important unresolved policy issue of our times as no singular approach exists to legally accommodate the unique identity of such individuals. While some countries allow change in legal gender, generally contingent on proving surgical modification of the body through medical procedures, such policies have been criticized for trying to subsume the unique identities of gender non-conforming individuals within the binary gender system. In the last decade, some countries (like Nepal, India, Pakistan and Bangladesh) have opted to create a third legal gender category to recognize the unique identity of gender non-conforming and/or intersex individuals. This recent trend represents a marked policy shift towards the legal recognition of gender non-conforming individuals. While this seems a positive step on paper, we still know relatively little how gender non-conforming individuals respond to the legal third gender category.
In an attempt to expand our knowledge about legal identity and consciousness of gender non-conforming individuals, I carried out ethnographic fieldwork with the Khawaja Sira community in Pakistan for about 9 months in 2015-16. The Khawaja Sira community of Pakistan is a heterogenous group largely consisting of gender non-conforming individuals. While most members of the Khawaja Sira community are biological males with a preference for the feminine gender, many male-to-female transsexual, intersex, impotent individuals and victims of childhood sexual abuse also self-identify as Khawaja Sira. However, almost all members, regardless of their reasons for joining, adopt the feminine gender after joining the Khawaja Sira community. Most members of the Khawaja Sira community are expelled from their homes in adolescence generally after repeated verbal and physical abuse. Living in extreme poverty, most members of the Khawaja Sira community resort to begging, dancing at private parties, and sex work to make their ends meet. Overall, the Khawaja Sira community has a pariah status in Pakistani society and until recently had no formal protection of their legal rights.
However, during the proceedings of a landmark case from 2009 to 2011, the Supreme Court of Pakistan ordered the creation of a third gender category to legally recognize the unique identity of the Khawaja Sira community. While the decision to create the legal third gender was accompanied with much fanfare, the response of the Khawaja Sira community to this new gender category has been underwhelming. A large majority of the Khawaja Sira community continues to legally register as men. This seemingly paradoxical choice problematizes the instrumental and symbolic value of the legal third gender.
My research indicates that this paradoxical choice of the Khawaja Sira community about their legal gender is primarily motivated by practical concerns. A Khawaja Sira registering as a third gendered individual faces family pressure, religious stigma and high administrative burden. On the other hand, there are hardly any material benefits associated with the legal third gender category to offset these significant personal and social costs. Hence, for the Khawaja Sira community—most of whom live in extreme poverty—their practical (material and religious) interests are served better by choosing the masculine gender legally.
On the other hand, there is no guarantee—at least in the short-term—that their strategic gender interests (like social acceptance and material inclusion) will be served by choosing the legal third gender. Importantly, the Khawaja Sira do not see law as the ultimate arbiter of their identity even though most outsiders consider this choice of the Khawaja Sira as an indication that most of them are in fact men pretending to be men. The Khawaja Sira community, therefore, make a purposeful patriarchal bargain by choosing the masculine legal gender to take advantage of the privileges associated with the masculine identity in a patriarchal socio-legal order while foregoing the symbolic benefits associated with the legal third gender.
My findings, therefore, point to the limitations of a legal third gender category within a patriarchal socio-legal order where important benefits associated with the masculine identity are forfeited by registering. In doing so, my research cautions against over emphasizing the symbolic value of legal recognition for gender non-conforming groups. Moreover, my results suggest that unless accompanied by tangible benefits to offset the institutional biases against it, the legal third gender is not likely to be a viable strategy for social inclusion of gender non-conforming individuals, at least in regions like South Asia where such individuals often live in extreme poverty.
Muhammad Azfar Nisar is assistant professor at the Suleman Dawood School of Business at Lahore University of Management Sciences, Pakistan. He is interested in understanding the dynamics of the citizen–state relationship with a particular focus on legal categorization, identity formation, social marginalization and policy implementation.