(Un)Becoming a Man: Legal Consciousness of the Third Gender Category in Pakistan, Muhammad Azfar Nisar

In its response to claims of discrimination by gender nonconforming individ­uals, the Supreme Court of Pakistan held that such individuals have consti­tutional rights entitling them to freedom from discrimination.

Nisar's article exemplifies research within the Identity School of legal consciousness, although he also draws on literature and concepts associated most closely with the Hegemony School. Nisar demonstrates that only by understanding how identity is constructed can one explain how rights become active or remain dormant. Moreover, identity construction cannot be achieved by law alone but is also affected by culture and religion, as Nisar's analysis makes clear. In particular, cultural norms associated with parent-child relationships and customary inheritance practices tend to inhibit individuals from formal assertion of transgender rights; and religious norms and practices strongly influence transgender women to identify as men, despite their legal right to categorize themselves as third gender. Insofar as most social insti­tutions and practices continue to adhere to a traditional gender binary - either male or female - the new legal right to claim a nonconforming gender identity holds little attraction for the individuals Nisar interviewed.

Family and Legal Thirdness

The other day three Khawaja Sira came to my house. They looked just like women and even had the [sex realignment] operation done. They said, “Sister we have to get the ID as a man!” I said, “But you look just like women, why don't you register as Khawaja Sira?” to which they replied, “No Sister! Our uncle will kill us if we do that.”... I think if there was less family pressure, more among us might register as Khawaja Sira.

(Salma, 45, unemployed, an influential Guru) The new ID introduced by the government can only be issued... in the name of the Gurus. We want our name to be included with the name of our parents. Our parents gave us birth, our mother carried us in her womb for nine months, our father did hard labor for us. They took care of us in our childhood. How can we erase their name?

(Katrina, 33, unemployed) These two narratives indicate the multiple ways in which family influences the legal consciousness of the Khawaja Sira community. Many families keep tabs on the members of the Khawaja Sira community and actively discourage a public display of their feminine identity even after they leave or are thrown out of their homes. For example, one research participant was brutally beaten by her family members after her interview aired on a local news channel about the rights of the Khawaja Sira community, as she was thought to have brought shame on the family. Another was taken to her family home on a false pretext and her long hair was forcibly cut short to minimize her overt femininity. This anxiety over family honor reaches its peak when the families come to know that their “son” is going to register as a Khawaja Sira. Consequently, various strategies - like admonition, threat of violence, and withholding family verifi­cation (mandatory for getting a legal ID) - are used to dissuade family members from choosing the legal third gender.

However, family influence on the legal consciousness of the Khawaja Sira community is not always in the form of external coercion. As noted in the context of welfare stigma, individuals often internalize negative stereotypes associated with being a welfare recipient. This internalization, in turn, results in refusal to participate in welfare programs even if one is eligible to receive benefits. Many of my research participants had also internalized the social discourse that choosing the legal third gender meant abandoning their parents. This was partly because most members of the Khawaja Sira commu­nity believe that an integral part of choosing the legal third gender is to replace their father's name with that of their Guru even though this is legally not possible. That is why most members of the Khawaja Sira community call the ID with the masculine gender as the family card and one with the third gender as the Khawaja Sira card.

Even though most of them had been forced to leave their homes, formally abandoning family remained a taboo as obedience to parents and psycho­logical connection to family are idolized in Pakistani society. To them it seemed as if choosing the third gender legally would make their disconnect from family “real,” and they ended up choosing the masculine gender because they thought it would keep them, at least symbolically, connected to their families. Nargis, who is 56 years old, summarized this sentiment the best when she said, “There is no use of it [legal third gender]. People say get it, get it. How can one forget one's family, one's parents?” Among my research partici­pants, only those who had experienced especially bad breaks from their families or whose parents had died wanted to choose the legal third gender. In fact, a couple of these participants even demanded that they be allowed to use their Guru's name instead of their father's to make the disconnect from their families formal.

Religion and Legal Thirdness

Religion plays an important part in the governance structure of Pakistan - a country that takes pride in being created as a self-proclaimed Islamic state.

Paradoxically, while the Khawaja Sira community contests social discourses that deem their femininity to be illegitimate, when it comes to religion they conform to the dominant patriarchal discourses. Most members of the Khawaja Sira community believe that for God, they are (ontologically) men and should perform all religious rituals as men; otherwise, those rituals will remain imperfect. From Naghma's observation that “we are born as boys in our parents' homes” to Neelo's opinion that “we will be resurrected with men at the day of judgment” and that she wants to be “standing in the Prophet's row [implying the row of men] on the day of judgment,” it was the most consistent finding about the religious beliefs of the Khawaja Sira community. This is somewhat surprising since most other narratives of the Khawaja Sira community about their self-identity are based on the idea that they have a feminine soul inside a masculine body. I would have assumed (perhaps naively) that religion should be concerned with the soul and not the body. But when it comes to religion, the soul paradoxically takes a back seat for the Khawaja Sira community and the body takes over.

This religious belief becomes important for the Khawaja Sira community when they travel to Saudi Arabia for religious pilgrimage (umrah or hajj). Most members of the Khawaja Sira community believe that they will either not be allowed to enter Saudi Arabia or must perform religious rituals like women if they choose the legal third gender.

Costs and Benefits of Legal Thirdness

For many members of the Khawaja Sira community, the choice of the masculine legal gender also is motivated by more utilitarian concerns. In a patriarchal sociolegal system, there are tangible economic benefits associated with becoming a “legal man,” which one must forego to choose the third gender legally. For example, men get a higher share of inheritance than women in Islamic and Pakistani law. Many members of the Khawaja Sira community believe that by choosing the legal third gender, they will not be entitled to the share of men and will instead get the share reserved for women (or “non-men”).

I always say that we should get IDs as men otherwise we will be counted as women [for legal purposes] and instead of getting a larger (12 anay) share [equal to a man] we will be given a smaller (4 anay) share in inheritance as they [our brothers] would say that since we registered as Khawaja Sira, we are now equal to sisters. That's why I advise everyone [in the Khawaja Sira community] to get IDs as men... to claim complete [and due] share in inheritance.

Such narratives associating legal third gender and a lower share of inherit­ance circulate widely among the Khawaja Sira community and produce powerful effects. Like Simran, other participants also mentioned inheritance as one of the main reasons they legally chose the masculine gender. In many cases, their primary concern was not about what their share was in inheritance but whether they got any share at all. As noted by the Supreme Court in its decision, the Khawaja Sira community is generally denied any share in their parents' inheritance. This denial is generally justified on the premise that the Khawaja Sira do not need to save or care for anyone other than themselves (as they do not have any spouse or children). For example, when one participant asked her father the reason for her exclusion from his will, he said incredu­lously, “What use would you have for the property?” Members of the Khawaja Sira community registering as men are holding on to the hope that legally identifying themselves as men may persuade their parents (and siblings) to let them have their due share in inheritance.

While there are tangible benefits associated with the masculine legal identity, there are hardly any benefits associated with the legal third gender. Even though the Supreme Court had ordered the government to take special measures for socioeconomic inclusion of the Khawaja Sira community - for example, provision of jobs and educational opportunities - none of them have subsequently been implemented. Moreover, most institutions in Pakistan have different policies for the collection of gender-related information, none of which associate any material benefits with the legal third gender. As Naima, 37 years old and employed, noted:

What good is [adding the third gender on] the ID for us unless “third gender” is added to all forms, for example, related to transfer of property,... on certificates, on forms for admissions to schools. On these forms, there is never written man, woman, Khawaja Sira. We just have to write man or woman. unless a third category is added everywhere, how can we get our place and our dignity [izzat]? [...]

In the context of Pakistan, it is important to note also that most public institutions - including schools, hospitals, and banks - are segregated along gender lines with separate spaces reserved for men and women. Even though a third gender category has been created, there have been no associated changes in these institutions. Ironically, even in the NADRA offices, no separate lines exist for the Khawaja Sira, who must stand with either men or women to apply for legal IDs. [... ]

Conclusion

[...] My research highlights that there are multiple institutional and discursive factors that influence and constrain the legality of the third gender category for the Khawaja Sira community. Therefore, I am hesitant to call the general reluctance of the Khawaja Sira community to choose the legal third gender as an act of resistance. [...]

I contend that at a deeper level, this choice of the Khawaja Sira community problematizes patriarchy and the hegemony of law in several ways, and the legal consciousness of the Khawaja Sira community should be conceptualized as a strategic “patriarchal bargain”^[CIII] based on a personal cost-benefit calculus. The salient aspects of this bargain are as follows: First, my research highlights that most members of the Khawaja Sira community do not consider the formal legal system to be the arbiter of their self-identity. Before starting my fieldwork, I expected that the symbolic benefits of legal third gender - legal legitimacy of their thirdness - would be an important incentive for the Khawaja Sira community to choose it. However, I gradually realized that when their mere presence in a room or a workplace is enough for others to label and ostracize them - even when they do not want to disclose their real gender identity - there is limited, if any, utility in the legal third gender for most members of the Khawaja Sira community. It is not as if registering as men will prevent them from living their lives as third-gendered individuals. Society already considers them to be charlatans, and even if they choose the legal third gender that social assessment is unlikely to change. Hence, to the extent possible, they decide to strategically use the patriarchal legal order for their own benefit.

Second, a very important qualifier in the present context is lack of tangible material benefits associated with the legal third gender. If the government associates economic benefits - like social welfare - with the third gender, more members of the Khawaja Sira community will likely adopt the legal third gender as the strategic benefit will be higher. Paradoxically, as allocation of governmental resources is often based on the numerical strength of differ­ent groups, unless a critical mass of individuals chooses the legal third gender, the government is unlikely to associate any economic benefits with it. For example, a provincial minister in Punjab recently noted that since the number of officially registered Khawaja Sira was very small, the government was unable to fix any separate job quota for them. Hence, after the creation of the legal third gender, there is no perfect choice for the Khawaja Sira community: the choosing of the legal third gender means accepting social and religious stigma and foregoing the benefits associated with the masculine identity, while choosing to register as men potentially compromises their long­term agenda of symbolic and material inclusion.

That is why it is critical to keep in mind Molyneux's distinction^[CIV] between strategic (long-term, group based, deductively articulated) and practical (immediate, need-based, inductively articulated) gender interests. For the Khawaja Sira community - most of whom live in extreme poverty - the practical (material and religious) interests that are served better by choosing the masculine gender legally are more urgent and important. 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. The Khawaja Sira community, therefore, makes a purposeful patriarchal bargain by choosing the masculine legal gender to take advantage of the privileges associated with the masculine identity in a patriarchal sociolegal order while foregoing the symbolic benefits associated with the legal third gender.

Therefore, in addition to improving our understanding of the legal con­sciousness of gender-nonconforming individuals, this analysis cautions against considering the introduction of the legal third gender as an unambiguously positive step for the inclusion of gender-nonconforming individuals. My research also problematizes the assumption that gender-nonconforming indi­viduals would uncritically adopt the legal third gender because of its symbolic benefits. My findings further suggest that if the legal third gender is to become a viable option for social integration of gender-nonconforming individuals, governments, especially in developing countries, must associate with it tan­gible material benefits - such as improved job opportunities or dedicated welfare programs - to offset the social costs that individuals must bear by choosing the legal third gender.

4.5