Image Source: lgbthistoryindia Instagram page
The NALSA Judgment (2014) and the Navtej Johar Judgment (2018) both produced a subject of gender and sexuality in a present-in-history. Both judgments presumably did not announce the recognition of new identities but traced histories of identities built on sexual and gendered differences from ancient India onwards. Under colonialism, it was argued by the lawyers fighting for our rights, came laws that continued into the hitherto present to persecute and affect minoritized persons and communities based on their sexuality and gender. In this way, the mention of these people in the past wasn’t just to legitimize the presence of LGBT persons in the present but also, sought to do postcolonial justice to the present and the past. Justice wasn’t just a matter of those in the court but all those invoked in the archives and myths. The arc of justice was what seemingly connected the past to the present, this-worldly with the other-worldly. Yet these ghosts are not so easily laid to rest. In this short piece, I seek to show how the reach of the law is in fact what connects the past to the present, the colonial to the postcolonial, yet this seemingly linear movement is not the site of justice. I argue that part of the troubles that come to ache trans folk now are precisely those produced from such a telling of history and identity.
Oyeronke Oyewumi’s The Invention of Women shows that it was the white anthropologist who traveled to Africa and produced the binary model of gender we have come to accept everywhere. In her study of the writing on the Yorubas by Europeans and the practices of kinship, recognition, and living among them; Oyewumi found the incommensurability she accrues to bio-logic where the colonial reliance on the visual produced the body as the site where the biological and the social mapped on to one another perfectly. So while the body was not the site of difference that matters to Yoruba society and age more than gender helped to live together and forms of social organization, the Europeans went and found, rather invented, women. This practice of the body standing in for personhood continues in our projects of recovery as well. In this recovery of subjects and, at times even, subjectivity, the trace of a body or even the trace on a body becomes the finding of a person. Anjali Arondekar best shows in her analysis of Khairati vs Empress (1848) how Khairati was found by the colonial apparatus are the precise traces we rely on to create a history from Khairati into the contemporary. Khairati was found wearing women’s clothes, singing with women, but also with a man, and with a remarkably musical anus. The colonial court finally acquitted Khairati. Yet Khairati emerges time and again not only in queer scholarship but also in NALSA and Naz Judgments.
While for many of us how Khairati might emerge in a queer scholarship seem obvious from her assumed sex and gender presentation, I would like to suggest, drawing from Oyewumi that this isn’t so. In a report by a French colonial medical officer, a certain Dr. Roberts, “a curious example” of three girls singing and dancing in a camp at Faridabad with masculine voices led to a physical examination of their “condition” by the doctor. Dr. Roberts’s report, of course, then fills itself with their scars, their underdeveloped organs, some protruding one, their lack of sexual desire and so, all in high medical and scientific-sounding words to maintain the objectivity of his gaze. But he also remarks on how the girls also confessed their biographies, the way the operation was done and other ways of the community to Dr. Roberts. These girls seem to resemble Khairati found in the court files but the reason I mention Dr. Roberts’s dancing girls is that when they first came into the camp to sing and dance, upon hearing their masculine voices, the doctor thought that they may be thugs. That the first impulse to see masculine voices in women’s clothes brings to the doctor’s mind thugs means that there must be a certain preponderance of thugs disguising in women’s clothing. This means that “eunuchs” as Dr. Roberts’s report calls them weren’t the only folks dressing in ways that the colonial eye would see as (a)cross. We know from Laurence Preston’s canonical essay, A Right to Exist, that how eunuchs would negotiate state and society in the early modern period was not based on appearance but a complex telling of haqs and lineage. That there were ways in which clothing did not fold into sexual/gender identity and the folding of this identity on to these girl’s bodies is enabled by Dr. Roberts’s eye. This is significant because the testimony of these girls is absent from the report and is only relayed to us by Dr. Roberts. As the trial did for Khairati. The subjects that are recovered in our histories invoked in our courts, the subjects of justice are the subjects of an epistemological misrecognition given ontological recognitionsince their subjectivities are impossible to recover given as their bodies as texts only emerge for the colonial apparatus and its sense of self.
I have hoped to show till now to the faithful reader that the colonial understanding of the eunuch or those it brought to court under sec. 377 are unreliable sources to recover forms of personhood that would respect the lives and meanings of those we would seek to rescue and rehabilitate in our narratives of postcolonial justice. This becomes even more significant today, with the Transgender Protection of Rights Act 2019 passed in Parliament that reinstates the medicalized eye on to the trans body for it to enter legal subjectivity, the granting of discretionary powers to the District Magistrate who would sanction their bodies as fulfilling criteria for legal recognition, in denying the affective relations and political economy of kinship within the trans* community, and in the stepping aside of the right to self-determination because the subject is seen as an insufficient witness to her own life and identity, thereby making bodies out of persons and calling it citizenship. This reaches its apogee in the current case being fought by Grace Banu in the Madras High Court for horizontal reservations for trans people where the Court hides its lack of political will to grant reservations in its anxiety around false cases. The Court asked Banu if we keep the right to self-determination then anyone can claim a trans* identity and get the benefits of reservation. This, however, is another way in which the Court grapples at the ends of its non-knowledge of a subject in their presence by finding the trans* subject incapable of an account. In the Act and with the doubts the Madras High Court has raised over Banu’s rights, we realize that for trans* persons in India to access the state, they must bend to the shape of the apparatus, inhabit forms of personhood the law recognizes to have rights, be colonized to be free.
 On the imagination of the archive as full of possibility of recovery and justice see: Gayatri Spivak, The Rani of Sirmur, History and Theory, Vol. 24, No 3, Oct. 1985.
 See: Anjali Arondekar, For the Record.
 Provincial Medical Journal and Retrospect of the Medical Sciences, Vol. 5, No. 125, February 18, 1843. Pg 413.
 For those who wish to understand how important thugs were to the formation of empire, the emergence of rule of law, and the codification of sexual morality, see: Eizabeth Kolsky’s Colonial Justice in British India. There is more to say about the colonial state’s anxiety around nomadic communities and shifting populations and their continued criminalisation under the Criminal Tribes Act, an under analysed analytic in the queer scholarship.
 ‘Modern Asian Studies, Volume 21, Issue 2, April 1987.
 We must know that before the trial of Oscar Wilde, the sodomite could not speak in his own trial. “The love that dare not speak its name” was a legal injunction.
 For more on how the courts construct the subjects of whom they speak, see: akshay khanna, Sexualness.
 CLPR is representing Banu is how I know the case details.