|Jennifer Josef, ILGA-ASIA|
|Jennifer Josef, ILGA-ASIA|
Only Pinki Pramanik has the right to decide what her gender identity is. In a case where the "facts" are both complex and yet also the question at hand, let us start with one that should be undisputed: Pinki Pramanik says she is a woman. She has lived as one, competed as one, and identifies as one. She and no other person or institution - particularly the law or medical science - has the right to decide what her gender identity is regardless of her anatomy, her chromosomes or her hormones.
As the investigations against her began, her claim to be a woman should have been accepted at face value regardless of whether narrow judgments of her appearance, manner, physicality or dress led some to believe otherwise.
The list of systematic violations of her rights by the police is a long one: being kept initially in a male prison; being handled and then sexually harassed by male police officers; the filming and then leaking of an alleged MMS of her in the hospital undergoing a gender test that, by many accounts, was forced on her as part of the conditions of her bail without an order from a magistrate.
It is a welcome first step that the West Bengal Human Rights Commission, the Cyber Crimes Bureau and the Kolkata high court have deman-ded and initiated inquiries into these rights abuses.
Yet we must also stop and ask why these rights abuses occurred. Pinki's case is a marker of a more fundamental struggle that we as a society have with the body.
We, as a society, allow bodies thought to be different or of lesser value (at times marked by sexual or gender difference but equally with caste or religion) to be publicly stripped, examined, probed, debated, para-ded, marked and judged. Examples abound: two finger tests to check the sexual character of a woman who has made a rape accusation; repeated cases of sexual assault of hijras with impunity in police custody; dalit women and men who are stripped naked and publicly paraded as punishment in cities and villages across India; or the bodies of young Muslim men suspected of "terror" that are fair game for police torture.
These bodies hold no real right to dignity, safety and privacy. The initial question that the country asked of Pinki was not who she is but "what" she is - a public spectacle that reduced her to an object to be classified as per the needs of law.
It is indeed between law and medical science that this case will proceed. The question of "what she is" will supposedly be answered by a "gender test''.
In it, Pinki's entire life lived as a woman - her sense of her own gender - will be discounted and reduced to measures of chromosomal and hormonal behaviour that measure biological sex on the assumption that it can be neatly categorised into "male" and "female".
Yet even recent scientific writing in the Journal of the American Medical Association describes gender tests as "difficult, expensive, and potentially inaccurate". Hormones and genital development, the study argues, vary significantly within "women" and "men". The science itself, it is important to remember, is far from certain.
Yet from laws to social norms and our own internalised fears, we go to a great deal of effort to police and protect the boundaries that separate "male" and "female" even though the realities of our lives repeatedly show us that biological sex cannot so easilybe tabulated into XX and XY, hormones do not line up to be counted either in the pink or blue line, and biological men and women don't always choose to be either masculine or feminine as per "the rules".
Many people are intersex, i.e. biologically both male and female. Even otherwise, our bio-logies can change through sex reassignment just like our hearts can be transplanted or mechanically run. Our understandings of our own gender identities can, as they do with transgender people, be independent of our biological sex. The question we must ask then is this: What kind of answer is Pinki allowed to give to the question of who she is? What answer will we be willing to accept?
We have struggled to accept gender variance and fluidity in our society and it has left us with legal regimes and languages that often violently force all difference into categories we understand. The recent inclusion of "other" gender categories in many state documents is a small beginning that sees the state bend to actual complexities of gender.
We have much to learn from countries like Argentina where citizens can legally choose their gender identity regardless of their biological sex.
What would our laws look like if we re-imagined them to reflect more fluid gender identities? Pinki's case reminds us of how far we must go and that, until we get there, it is those presumed "different" - and it is only a presumption since Pinki maintains that she is a woman and neither intersex nor transgendered - that are the most vulnerable.
Pinki faces serious accusations that must, let me say clearly, be fully investigated. Yet what must be on trial are her acts and not her person. In the procedural violations that have already occurred and the trial that she has already been put through, the process of a fair trial for both Pinki and her accuser are delegitimised.
There are critical lessons to be learnt here about due process, the presence of gender variant citizens and their rights, and the role of privacy and dignity to all. As her bail hearing approaches, let us remember the basic question of justice: if Pinki has indeed committed acts of violence, let her be tried for them. Until that moment, however, her right to be judged as an equal with her own understanding of her gender identity must be protected by the state and by all of us.