Gairola's “The X factors of sex: hijras, Victorian law, and digital porn in postcolonial India” (2019)
The British Raj instituted Section 377 to criminalize gender-based sexual acts between consenting adults ... Much of this colonial-era law was largely repealed by the Supreme Court of India on 8 September 2018, wherein prohibition was deemed ‘irrational, indefensible, and manifestly arbitrary’ (McGoldrick 2019) excepting bestiality, rape, and underage sex. However, the social mindset justified by the law still lingers.
If Section 377 materializes gender, as in ‘the female body’, into intelligible borderlines which govern waking life, I would argue that the preoccupation of femaleness as it appears on men’s bodies and how it is absent from women’s bodies is an ongoing anxiety crystallized in India by Section 377 despite the September 2018 ruling. This is arguably due to a massive colonial hangover over the mixing of blood and anxieties about reproduction (Stoler 2002, 42) in the post colony (although India was not a settler colony like Australia, South Africa, and/or Canada), and in other independent nations with Victorian-era laws still on the books.
Macaulay is less notorious for another drastic policy that he imposed on the Raj’s indigenous subjects: he was the architect of the 1860 implementation of Section 377, the ‘unnatural offences’ statute, of the Indian Penal Code. Section 377 was a particularly insidious act because it sutured the very notion of ‘nature’ (that justifies the violence of colonialism, slavery, and indentured servitude) through scientific rationality. This statute deployed ‘nature’ as a means of criminalizing queer gender and sex acts that did not conform to heteronormative ideals propagated by Victorian gender propriety:
“377. Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine.
“Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section.” (Misra 2009, 21)
The statutory meaning ostensibly pivots around carnal intercourse and (un)natural offences, but the addition of an ‘explanation’ strategically denies individual interpretation since the interpretation of law is unwarranted. This overdetermined predicate reflects the ways in which gender, like ‘unnatural’ sex acts realized by penetration, was also militantly situated by the Raj. As Jessica Hinchy notes, colonial officials referred to hijras as men because:
“the use of the masculine pronoun was, in fact, a linguistic strategy to erase hijras as a distinct gender category and restore the binary division of gender that hijras challenged [original emphasis] … Masculinity was also fundamental to British ideologies of rule in India, in which British men were represented as the masculine ideal.” (2017, 112)
The hijra was non-reproductive, and thus viewed as ‘really’ a man although her social life was clearly that of a non-heteronormative subject.
Hijras, or ‘eunuchs’ in colonialist language, were registered and policed under Part II of the Criminal Tribes Act. In addition to linking transgressive gender identifications to criminality, that Act also forced class and ethnicity into the legal parameters of juridical ‘perversions’
Charu Gupta notes that the dominant view was that ‘monogamous, heterosexual, and companionable marriage’ linked to female reproduction and male virility constituted ‘a modern, civilized, Hindu nation’ (2011, 14). Gupta (2011, 15) moreover notes that the rise of print culture and urbanization creates ‘colonial publics’ that crystallized a discriminating middle class in colonial India. According to Ruth Vanita and Saleem Kidwai, becoming a hijra was often viewed as the only option for working-class gay men, although ‘the conflation of hijras with homosexual men’ imbibes ‘an homophobic refusal to acknowledge homosexual men as full-fledged “men” living in mainstream society’ (2000, 202).
The rise of an Indian middle class steeped in colonial mimicry exacerbated the pathologization of poor people and sexual minorities. In contrast to the colonial policing of gender and sex, it would seem that contemporary Indian statutes that recognized the ‘third sex’ and repealed the ban on pornography are relatively progressive. However, closer scrutiny of the history of hijras and the contradictions that arise from the Supreme Court of India’s legal recognition of the third gender while upholding the constitutionality of Section 377 in December 2013 suggests otherwise.
According to Nancy A. Naples and Barbara Gurr:
“By specifically regulating gender/ sex identities, the colonial project in India legally imposed a heteronormative binary which marginalized those who stepped outside of the legal bounds of gendered sexuality … The British colonial powers incorporated hijra into a grander, criminalized category which included all non-heterosexual identities without distinction.” (2012, 314–315)
As Indrani Sen Gupta notes, the Criminal Tribes Act of 1871 includes ‘An Act for the Registration of Criminal Tribes and Eunuchs’ in Part II to make more explicit, and enforceable, ‘the link between criminality and sexual non-conformity’ (2005, 188).
[A]n issue brief titled ‘Hijras/Third Gender Women in India: HIV, Human Rights, and Social Exclusion’, submitted to the United Nations Development Programme, India, by Dr Venkatesan Chakrapani (2010) ... details the many forms of ‘social exclusion’ experienced by third gender peoples. Such social exclusion includes familial, social, and cultural participation, discrimination in healthcare settings, exclusion from economic participation and lack of social security, which includes lack of livelihood options and health and life insurance schemes, and exclusion from political participation (2010, 8–9). Chakrapani’s report elucidates that one’s gender identity has ramifications that stretch far beyond the sexual, impacting the most vital aspects of communal belonging that materialize in diverse trajectories of the quality of life.
Aniruddha Dutta recognizes the fraught reasoning of the Supreme Court ruling, observing that axiomatic externalities, including psychological tests and surgery, nourish the ideology of ‘biological essentialism, that is, the reliance on biological and physical attributes (such as genitalia and hormones) that are positioned as “essences” of gender and used to verify or certify someone’s gender identity’ (2014, 227). They go on to note that such essentialist formulations of gender are further complicated by state-sanctioned reservations and other such social services (2014, 227).
Porn555 ostensibly centres the white phallus as the privileged appendage of third gender experience, even to the point of skewed visibility and invisibility. In contrast, BongaCams completely erases third gender erotica. These two distinctions in the marketing of the porn videos featured on the Porn555 and BongaCams websites, despite their relatively large viewerships in India, suggest that the target market for both sites are global viewers whose erotic desires privilege heterosexual sex even beneath the rubric of queer sex.
In plain terms, the sex featured on these two websites reifies a hegemony of heteronormative desires – whiteness, patriarchy, and standard ideals of beauty and lust – that exclude hijras, transgenders, and other queers.
[T]he use of Hindi seems to ‘authenticate’ the exotic and sexualized subject that merges two genders into a category, the third gender, which does not exist as a legally legible subject for western viewers. That is, the ‘hijra’ as both a search keyword and a national sexual fetish is a function of localizing pornographic imagery in cyberspace to make it more titillating and ‘real’. The orientalization of the sexual fetish seems to verify its supposed authenticity.
In this context, the ongoing bias institutionalized by Section 377 in India feeds the ‘perverse’ imaginations of western voyeurs who desire queer, brown bodies online. Given the psychological and cultural legacy of Section 377 and the taboo around pornography in India (despite lasciviously suggestive dance numbers in a whole range of Bollywood films), we can make three general observations about the XVideos retrieved by the keyword ‘hijra’: many of the videos do not feature sex acts, and rather feature hijras clapping in a campy manner or dancing in a manner that parodies the nautch girls in popular Bollywood films like Mughal-e-Azam (Asif 1960) and Pakeezah (Amrohi 1972); most sex acts are oral and penetrative sex wherein the hijra is submissive and the face of the penetrator is concealed (presumably to mask his identity) – despite his concealed face, his body signifies as male (arms, hairy flat chest, gut, etc.); and in a number of these videos, the recipient of the oral sex and/ or the penetrator is slapping or cursing at his third gender partner.
Since the hijra is playing the submissive role, such films echo concerns over domestic violence and ‘the rape culture of India’ (Wirth 2018) that is rampant throughout some parts of the subcontinent, expressly towards hijras (Narrain 2004; Reddy 2005). In one video thumbnail, the caption reads ‘thapad mar ke hijaryse lond chousya’, which roughly translates to ‘slapped a hijra until she sucked my dick’. In most cases, the penetrator masks his face, suggesting his shame, fear of being identified, and/or need to conceal his identity due to being in a heteronormative family (married with kids in a joint family household, etc.)
[A] survey of the 1209 videos retrieved by the keywords ‘Indian hijra’ feature popular heterosexual fantasies, namely Indian American women pornstars Angela Devi and Priya Rai – the latter playing roles including a MILF (mother I’d like to fuck), a maid, and a ‘Busty Asian Wonder Slut’. In the purview of Pornhub’s search algorithm, hijras and straight Indian women are the same, and hijras are pooled into categories including ‘mother’, ‘maid’, and ‘slut’
Bollywood Kinnar ki Leela devotes more time to the narrative of police harassment of, violence against, and sexual exploitation of hijras than the sexual fantasy typically expected from a pornographic film with no social message. Here, the police officers who are usually fetishized are hardly depicted as sexually virile subjects. Rather, the officer in charge is a bumbling oaf before the catty and elegant hijras, whose witty answers to his coarse questioning prompts him to detain the elder one and force the younger one behind a remote building.
[T]he hijra as a contradictory figure seems to embody sexual citizenship beyond orientalism that is both liberatory and also dangerous. The subject’s ability to seduce the imaginations of all of those involved, including viewers, certainly displaces our erotic imaginations beyond routine colonialist stereotypes that orientalism has propagated in queer representations.9 These figures seem to oscillate between the space of subjects and agents, at times manacled to sexual acts intended to exact hegemonic order and domination while at the same time inhabiting queer imaginings that disrupt all semblance of police order and masculine desire. These digital sequences disrupt the power that viewers associate with the police and disrupt the libidinal eroticism of more mainstream pornography.
In An Era of Darkness, for example, Shashi Tharoor writes:
“In India there has always been place for people of different gender identities and sexual orientations … the British-drafted Indian Penal Code criminalized aspects of human behavior and human reality that in India had not previously been regarded as criminal or requiring legal sanction.” (2016, 116–117)
“Section 377 of the Indian Penal Code and the Criminal Tribes Act of 1871 target the transgender community as well as the homosexual community. They violate the Indian ethos and the traditions of perhaps at least 2,000 years of Indian cultural practice, mythology, history, the Puranas, and Indian ways of living. Instead of India’s traditional tolerance and ‘live and let live’, the British saddled the country with a colonial-era interpretation of what was good and right for Indians.” (Tharoor 2016, 116–117)
In her foundational essay ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’, Crenshaw writes:
“I argue that Black women are sometimes excluded from feminist theory and antiracist policy discourse because both are predicated on a discrete set of experiences that often does not accurately reflect the interaction of race and gender. These problems of exclusion cannot be solved simply by including Black women within an already established analytical structure. Because the intersectional experience is greater than the sum of racism and sexism, any analysis that does not take intersectionality into account cannot sufficiently address the particular manner in which Black women are subordinated.” (1989, 140)
In fleshing out the concept a couple of years later, Crenshaw writes:
“The problem with identity politics is not that it fails to transcend difference, as some critics charge, but rather the opposite – that it frequently conflates or ignores intragroup differences. In the context of violence against women, this elision of difference in identity politics is problematic, fundamentally because the violence that many women experience is often shaped by other dimensions of their identities, such as race and class.” (1991, 1242)
To put this another way, identity politics over the last three decades has unwittingly reified essentialist categories of personhood while often turning a blind eye to race and gender.
I want to linguistically mark the intersectional relationship between race, gender, sexuality, and class as ‘intersex/tionality’. This ‘x’ is not the same, capitalized ‘X’ that marks the legalized, sexed subject in Pakistani passports. Rather, in replacing the ‘c’ with an ‘x’ in ‘intersex/tionality’, I mean to emphasize the contexts in which sexuality always attends race, gender, and class in intersectional analyses.
I would thus argue that an intersex/tional heuristic is not, and cannot be, the privileged hermeneutic in according hijras agency in law or pornographic representation. If it was, it would simply default back to a hegemonic binary like the primary/‘top’ and secondary/ ‘bottom’ binary position that gender roles attempt to normalize and from which it is escaping. That is, intersex/tionality, like intersectionality, risks transforming into a (neo)liberal mantra that simply reformulates the power axis of dominant and subordinate rather than ultimately displacing the polarizing structure.