Law, gender identity, and the uses of human rights: The paradox of recognition in South Asia

Jain, Dipika and Gupta, Debanuj Das (2021) Law, gender identity, and the uses of human rights: The paradox of recognition in South Asia. Journal of Human Rights, 20 (1). pp. 110-126. ISSN 14754835

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South Asia abounds with diverse gender identities that vary regionally based on religion, language, and cultural practices. Transgender rights activists have successfully deployed human rights rhetoric in order to obtain legal recognition of diverse gender identities from courts. However, the collapsing of these diverse identities and practices into a single category, under the transgender umbrella, by governments and judiciaries has created complex mechanisms for legal recognition of transgender persons. Simultaneously, international human rights principles are being invoked to win victories at the national level, which in turn offers insights into the dynamic interplay between law, activism, and human rights. In this article, we outline the constraints and opportunities presented by the changes in legal recognition of diverse gender identities across South Asia. We argue that the uses of international human rights statutes in national-level legal and judicial deliberations about recognizing transgender persons across South Asia offer limited opportunities, and mostly delimit access to formal citizenship, the very objective these laws seek to achieve. Simultaneously, this moment of wrestling with the limits of law, while continuing to demand full recognition from individual states, has given rise to cross-border mobilizations of a vibrant transgender rights movement. Such mobilizations reveal how diverse transgender activists are reinterpreting human rights principles in order to create coalitional multi-issue trans/justice movements throughout South Asia.

Item Type: Article
Keywords: Gender identities | Transgender rights
Subjects: Social Sciences and humanities > Social Sciences > Human Rights
Social Sciences and humanities > Social Sciences > Law and Legal Studies
JGU School/Centre: Jindal Global Law School
Depositing User: Mr. Syed Anas
Date Deposited: 23 Dec 2021 11:46
Last Modified: 23 Dec 2021 11:46
Official URL:
Additional Information: We are grateful to Shareen Hertel and Cathy Buerger for inviting us to be part of this special dialogue/symposium, and for their collegiality and patience. Gratitude to the anonymous reviewers of the Journal, and to Oishik Sircar and Sagnik Dutta for their close readings of the draft. This article has benefited immensely from their comments. We would like to thank Kavya Kartik, Krithika Balu, and Aaditi Pradeep for their research and editorial assistance. Dipika Jain would like to thank the JGU Research Committee and Dr. C. Rajkumar, O.P. Jindal Global University for their constant support. Debanuj Dasgupta acknowledges the Social Science Research Council for the Junior Scholar Award in Transregional Studies: Inter-Asian Contexts and Connections which facilitated extensive field work between 2018-2019 in South Asia. We do not intend to speak on behalf of Transgender, Gender-Diverse, Intersex movements or activists in India. This article is written from our location and training of academics. We continue to learn and draw inspiration from our personal interactions and writings of friends, activists and scholars in the Trans Movements.


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