Epistemic Injustice and Judicial Discourse on Transgender Rights in India: Uncovering Temporal Pluralism

Abstract

This article examines how efforts at legal legibility acquisition by gender diverse litigants result in problematic (e.g., narratives counter to self-identity) and, at times, erroneous discourses on sex and gender that homogenize the litigants themselves. When gender diverse persons approach the court with a rights claim, the narrative they present must necessarily limit itself to a normative discourse that the court may understand and, therefore, engage with. Consequently, the everyday lived experiences of gender diverse persons are often deliberately erased from the narrative as litigants mould themselves into the pre-existing normative legal categories of gender and sex. As a result of such mechanisms, the article finds that gender diverse litigants face epistemic injustice in the courts as their legal legibility is constructed within a constraining gender binary paradigm of judicial discourse. The article explores the trajectory of transgender rights in India, through an analysis of case law prior to and post the landmark NALSA decision, to understand how the approach to transgender rights and identities has been shaped by and shapes, in turn, normative conceptions of gender. The article argues for the incorporation of temporal pluralism into the law that would allow courts to hear gender diverse litigant accounts premised on contemporary gender diversity beyond the binary (rather than incontestable prior understandings based in past precedent), which would better account for such social injustices.

Silencing Tactics

“…India and South Asia have a unique cultural context for gender diversity, and recognise a variety of gender identities outside of the westernised binary, with varying degrees of legal protection (Dutta et al, 2019). The use of the word trans in the Indian discourse is contested, carrying substantial colonialist baggage (Chatterjee, 2018), with the preference being towards using gender diverse as the umbrella term (Jain & Rhoten, 2020). Despite the strong presence of India in SE, there didn't seem to be room for Indian and South Asian perspectives to emerge within the discourse around pronoun policies.…”

Epistemological Deviant, Epistemic Abjection and Lost Opportunities: A Case Study of a Muslim Trans Intersex Student’s Othering and Dehumanisation in an Indian Science Classroom

“…In fact, apart from referring to legal protections offered to intersex persons in other countries, it doesn’t engage with the intersex question’ (2022). Thus, the collapsing of the intersex identity into the trans identity by the NALSA v. UoI judgement leads to an act of hermeneutic injustice (Jain & Rhoten, 2020) where, to seek the same civil and substantive rights as trans individuals, intersex people must begin identifying as trans. Despite the concerns of intersex individuals in the Indian science ecosystem being an open question, there is a body of global literature that demonstrates the pathologising gaze of science and medicine on the bodies and identities of intersex individuals (Jones, 2018; Jones & Jacombs, 2021).…”

“…And, [they] feel this is sometimes academically rewarded (if socially disparaged) because it is misunderstood as an acceptance of the equation between masculinity and scientific ability’ (Kondaiah et al, 2017). Thus, Kondaiah et al demonstrate the lack of a lens that allows practitioners of science to see transness; in other words, along with epistemic prejudice, trans individuals face hermeneutic injustice (Jain & Rhoten, 2020) in these institutions where they are compelled to conform to what the institution of science and its practitioners can imagine or discern them to be. Finally, it has also been argued that science education often follows strict deductive principles and problematises marginalised communities (Haverkamp et al, 2021; Kersey & Voigt, 2021).…”