This is the third interview in SLR's Special Series on Marriage Equality entitled Queering the (Court)Room.
Dr. Sayan Bhattacharya is an academic whose research is an ethnographic and archival exploration of various improvisatory and innovative strategies that Indian trans communities deploy to make life in an environment saturated by violence. Bhattacharya stages conversations between anthropologies of the everyday, trans, queer and critical disability studies scholarship on care and anti-caste literatures to study the efforts needed to reproduce an everyday that can be inhabited. Their research has appeared in Radical History Review, Global Public Health, Transgender Studies Quarterly, South Asian Multidisciplinary Academic Journal, QED and GLQ: A Journal of Lesbian and Gay Studies, Anthropology and Humanism among others. They are the recipient of the 2023 Sylvia Rivera Award in Transgender Studies for their essay “Inhabiting the State Subjunctively: Transgender Life-making alongside Death and a Pandemic”. They also volunteer with several community-led trans and disability rights organizations in West Bengal in India.
In this insightful interview, Dr. Sayan sees the current fight for recognition intertwined with the limits of the social that includes the logic of caste hierarchies and racial purity. They provoke the question of law’s ability to account for such multifarious issues that surround the case for marriage equality. In this conversation, they discuss their work “The Transgender Nation and its Margins” and the state’s role in normalizing everyday acts of marginalization through its omnipresent institutions which govern ordinary life. They highlight the complexities surrounding the idea of legal right and the various narratives of ‘harm’. Their response provokes us to rethink the role of law in redrawing the social wherein some rights are ensured but also where harm is reproduced.
In your work, you have shown how the State’s effort to fix the meaning of gender is in constant contestation with complex lived realities surrounding the identity of transgender that exceed the mandate of the law. Is the recent movement for recognition of queer marriages another example of such a contestation? How might this affect those who seek recognition from the state?
Well, the first thing that comes to mind with regards to gender and the marriage equality hearings is the Solicitor General, Tushar Mehta’s insistence on the centrality of biology to marriage. Or rather the linear correspondence that he and through him, the Central Government draws between assigned sex at birth and gender roles in marriage. I do not want to rehearse the problems with such biological essentialism. Transgender communities in India have been highlighting the reactionary nature of such notions for decades. I would like to reiterate, however, that this is not an exceptional moment. Biology is central to how the state conceives or imagines gender and hence the kind of policies it crafts on gender. In “The Transgender Nation and Its Margins,” the article you refer to in the question, I have discussed at length how the Indian state watered down the radical aspects of the 2014 Supreme Court judgment that had stated one had the right to gender expression, irrespective of medical intervention. Initial drafts of the Transgender Rights Bill constituted district level committees with medical professionals that would decide if a person was trans or not. After massive protests across the country, the state backed down and we have the current law but even this law has traces of the draft bills. Even though one can get trans certification without medical procedures with an affidavit, if one decides to identify as “M” or “F”, some evidence of medical intervention will be required. The idea of gender as based on some form of truth regime obviously draws from the notion of biology as the truth that is visible and therefore, sacrosanct. This makes everyday a relentless struggle. Sometimes, you have to take the civil aviation authorities to court because they think that you are unfit to fly because you are taking hormones, sometimes it is some other public service commission because they will not allow you to sit for an entrance test, sometimes it is a neighbourhood close to your place of work that refuses to rent an apartment to you and so on.
The NALSA verdict had also mentioned reservations in jobs and education. Even that provision is not there in the Transgender Persons (Protection of Rights) Act, 2019, and the Supreme Court has refused to entertain pleas on horizontal reservations. It seems that not only is the state refusing to delink gender from biological essence, it is also punitive towards any attempt that troubles essentialist thinking. When we talk of marriage, we cannot forget this backdrop. After all marriage is not really about love. It is about property rights, insurance, inheritance, child custody and so forth. All our family laws and personal laws are composed in gendered, biologically essentialist language. Any so-called equality in marriage rubs off against such a composition. The state draws its coherence from gendered stability. If one looks at the petitions, apart from the petitions from the queer feminists and trans activists, the rest are looking for a creative re-reading of our existing laws so that one can simply stretch the respectability from marriage to include queers. Whether the Court will perform such a reading (which maybe later overturned or watered down in the Parliament as seen in the Transgender Persons Act, among many other examples) is to be seen. But to reiterate, we cannot see marriage equality in isolation. The severe and often deadly consequences of inter-caste, inter-faith unions have shown the limits of legal safeguards against a social that is infested through and through by the logics of caste and racial purity. So the contest you mention cannot afford to remain limited within the realm of law only.
How do we make sense of the tension between the State’s legitimation, reinforcement, and governance of relationships through marriage and the government’s opposition to queer marriage? How does this dichotomy produce the relationship between the State and queer persons/citizens?
I don’t see as much dichotomy as much as how the signature of the state gets imprinted in various ways in our daily lives and I guess this goes back to the earlier question about the linear correspondence between biology as some inherent essence of gender and marriage. The state reproduces itself through heteronormative marriage, that is marriage is about extending the family line. Vulgarly, “man” and “woman” are supposed to come together to reproduce the future citizen. Here, the caste social intervenes and polices how such lines will be extended and what kinds of unions will be permitted. As some of the petitions point out, even the Special Marriage Act that is supposed to protect many such impermissible unions does not really guarantee much protection through requirements of notice periods and domicile requirements. The relationship between the State and “queer persons” is really not an exceptional one when it comes to the question of marriage. There are a slew of intimacies that are explicitly and implicitly prohibited or punished by the state and its various institutions. When I say institutions, I do not only mean families, marriage registrars, banks, insurance companies, and khap panchayats but also vigilante groups, militant outfits which are being covertly and sometimes overtly legitimized by the state.
In your earlier work, you had explored how there are some spaces in the transgender movement which are sites for Hindu homonationalism. However, we see a range of institutions aligned with Hindu nationalism, such as the Solicitor General and the VHP, actively protesting marriage equality. How would you read this in the context of Hindu homonationalism and the foreclosures it creates?
The focus of my argument was different. I had suggested that any meta theorization of Hindu homonationalism might not be able to account for the fierce contestations within transgender movements on questions of labour, faith and ideas of belonging to the nation state which do not allow any homogenous and hegemonic idea of community to go unchallenged in trans communities. Indeed there is great support for Hindutva ideology in sections of the trans communities. For instance, the increased use of the term “kinnar” in policy documents, names of new collectives, community meetings and in the media as a replacement of “hijra” is an example of the blatant attempt to distort the syncretic histories, particularly Islamic connections of our trans movements. Yet, such distortions are also being called out and challenged from within the communities. Moreover, hierarchies of caste also exist in trans communities like everywhere else and hence the Hindu-Muslim binary is too simplistic a formulation. Hence, it is important to mark all these specificities. So far as the state is concerned, I do not see much of a contradiction here. Unlike Section 377 where it was only read down allowing non peno-vaginal sex in private, marriage is about the publicness of intimacies and a host of rights and entitlements. Hence the state is actively opposing it whereas in the former case, it neither supported nor opposed.
Now with gender too, the current government’s conception is limited to a very Hindu myth-based idea of third gender and hence its laws and policies also speak in that vein. Yes of course our communities have found some breathing room within such severely limited ideas of gender and its safeguards and have used them to demand rights and welfare. Be it shelter homes for homeless trans people, trans certificates, inclusion in livelihood schemes – while the government claims to provide these, often the funds do not come or the inclusion does not happen and then the struggles start all over again. What I am trying to say is that not only is the imagination of gender limited but also much of it is for rhetorical effect without material basis. Hence, what we see as a contradiction is actually not.
You've written about how same-sex marriages outside the law in India is an important form of queer resistance to heteronormativity from within its own structures. Do you believe that the marriage equality petition and the legal, state sanction it seeks, complicates this nuanced understanding of same-sex marriages? What implications does it have for “living norms differently”?
So far in all our critical approaches to law and marriage, we have primarily focused on how law becomes an arbiter of which kind of intimacies will be legitimized through rights and entitlements and which will not. One set of petitions want to be included within such a regime of rights and recognition and the other wants to expand the scope of legal recognition of intimacies to include alternate families such as friends and chosen family. However, there are also a whole range of affects and emotions associated with marriage that are beyond the remit of law. Think of the familiar refrain in popular cinema – how can a piece of paper make or break a relationship? Marriages are made in heaven and so on. We can dismiss these films but how do we dismiss the aspirations, hopes and dreams around this idea of an intimate union?
Leela Namdeo and Urmila Srivastav, the two police constables who came to the limelight way back in 1987 because of their marriage is only one example among hundreds and hundreds of others. From maitri karar contracts to marriages through the sharing of garlands just before jointly dying by suicide, in what register does marriage operate here? An obstinate declaration to the world that one loves despite all that is against one’s love? Or the scores of marriages that I see happening between kotis and men where elaborate ceremonies take place and then within months, such marriages often dissolve over various issues. The state figures nowhere here, neither when these marriages are solemnized through rituals, nor when they are dissolved without much ceremony. These marriages do not bring property rights, inheritances but to the contrary, such public declaration of love could bring dire consequences. Often these weddings take place in temples with scores of curious onlookers as witness.
If marriage equality were to become a reality, how these couples would view marriage is an interesting question. Would state recognition bring more stability to these unions? Would they bring more acceptance? Gradual approval from families? Perhaps. But I think it would also harden certain borders. Any legal recognition rests on some non-recognition. One can only include when one can exclude. Which forms of unions would threaten to destabilize the state then? Which couples could be able to seamlessly access state recognition? I think it is not difficult to guess.
Several of the petitions presented in Court employ legalese to stake claims, rights, and recognition. Simultaneously, they also record the lived realities of the petitioners. How would you place this in the larger context of how queer struggles are narrativized and preserved in public memory?
I think we need to remember that law itself is based on multiple narratives, comprised of dominant ideas, prejudices, belief systems, stories and so on. If we put any judgment in the context of its socio-political times, the background of the judges, many threads emerge as to why a judgment has gone in a particular direction. And this is precisely why testimonies of petitioners become important that can influence how law will construct the narrative of a judgment. When ABVA filed the first petition in 1994 against Section 377, it was dismissed. The petition made a lot of important points on public health but what it lacked were faces that could help visualize the stakes of the petition. Of course, the times were different. Law needs to see how a particular statute or the lack of a particular right affects or harms a particular group of people. Which is why queer activists repeatedly catalogue harms wrought by law. Here injury leads to a rights claim. This is of course complicated because whose injury is instrumentalized in the court of law and then who is able to enjoy the rights is not easily answered. For example, if you look at the Section 377 hearings and now the marriage equality hearings, how is the trans body imagined? Always injured and harmed and yet, when we think of marriage equality, which is the rights bearing body that comes to mind? Who are the dominant faces of these hearings? Clearly not the body that has been pinned down as injured. Its only purpose is to serve as an exemplar of legal harm, not as an agential self that accesses rights. This is where public memory can become important – where strategic use of injury can be troubled with many different narratives to give complexity to the subject, a complex personhood that law denies.
In your work on representation of queer lives in India, you’ve posited that presentations and interpretations of queer lives (and deaths) are always incomplete readings. Could you tell us about whether and how the manner in which the petition is being documented today reproduces the same “incompleteness”?
Continuing with the previous response, it is not the harm that is being denied. But the larger question is if harm is the only index through which a life can be imagined. This is where I brought in the question of the impossibility of a complete reading. I would rephrase this as a reading is only one interpretation and it rests on many a foreclosure. These foreclosures need to be studied because they also expose dominant power relations and the politics of representation. The oppressor caste activists who collate petitions presenting oppressed caste queer and trans bodies as victims of homophobia and transphobia in families or when the working class trans person is evoked in the courtroom to counter the state’s charge of marriage being an urban elite issue are specific readings of lives that say a lot about power relations in our communities.
The judgment in the present case has been reserved and is expected to be out soon. Irrespective of the judgment, what do you think the marriage equality petitions and hearings mean for the queer movement, and how we think about questions of love, desire, sexuality, and marriage more broadly?
Just to reiterate that we cannot view these issues as exceptional modes of harm wrought on our communities without going deeper into the social that produces these harms, what kinds of desires does the social permit and so on. Most importantly, how far can legal protection go in reworking the social or does it retrench the social further with a few inclusions here and there? In the marriage equality hearings, there were some testimonies from couples from oppressed caste and religious minority communities. In these testimonies, we learn about the violence of natal families and how these couples were able to escape such families. They are now seeking protection from law. If the SMA is amended, then couples will be able to marry with much more ease. But then the question remains, can law provide absolute immunity against violence? Sure, it is a starting point. I am reminded of that heart wrenching film, Sairat. The inter-caste couple finally find an ease in the relationship. Economic stability, a roof over the head, a child – every commonsensical symbol of the good life. Yet, the poison of caste is only lurking and then we see the tragic end. This is not to dismiss the importance of law but to only harp on the fact that law is not an endpoint, that our Constitution is an aspiration that requires hard labour to actualize.
Now in all of this, what is the relation between marriage and desire or marriage and sexuality? The obvious answer to that would be that in an ideal world, all forms of relationships and desires should be celebrated, they must have rights but we do not live in that ideal world. Hence, even if we do not want marriage, it might be something we cannot not want because it brings me some lifesaving rights. Protection from harm, alimony, property, visitation rights and so on but we have also seen that one cannot get these rights seamlessly. Domestic violence, messy divorces, messy arbitration in family courts and so on also show that marriage itself is not a guarantor of all the rights that we want. Hence, the importance of the social and our power relations because law does not operate outside the social.
So far as desire is concerned, I think there is something about it that is unpredictable. It can both dismantle or retrench structures. It can be excessive or extremely conservative and one cannot entirely know in advance what desire can do. That is both its strength and weakness. Let’s keep desire outside of the paradigm of rights and entitlements because otherwise, we would have to narrativize it with a harmed figure, talk about all the violence and iron out all the pleasures, the contradictions. Have we not already done that enough with sexuality and marriage?
The questions for this interview were prepared by Niveditha K. Prasad and Nishu Rani on behalf of the SLR Editorial Board.
Read the other pieces in Queering the (Court)Room