(Un)Becoming a Man: Legal Consciousness of the Third Gender Category in Pakistan

Abstract

In the past decade, a few countries have created a third gender category to legally recognize gender-nonconforming individuals. However, we know relatively little about the response of the gender-nonconforming individuals toward the legal third gender category. To address this gap, this article analyzes the different social, religious, and institutional discourses that have emerged around the recently created third gender category in Pakistan and their influence on the legal consciousness of the Khawaja Sira community, a marginalized gender-nonconforming group. Even though the third gender category was created to address the unique gender identity of the Khawaja Sira community, most continue to legally register as men. My research indicates that the patriarchal stigma, high compliance costs, and limited material benefits associated with the legal third gender category dissuade the Khawaja Sira community from choosing to register. My findings point to the limitations of a legal third gender category within a patriarchal sociolegal order where important benefits associated with the masculine identity are forfeited by registering. In doing so, I caution against over emphasizing the symbolic value of legal recognition for gender-nonconforming groups.

Keywords

third gender legal recognition Khawaja Sira transgender patriarchy

In the last decade, a few countries—primarily in South Asia—have opted to create a third gender category to legally recognize individuals who do not ascribe to the binary gender categories.¹ Previous research has highlighted the limitations of the state categorization systems (Yanow 2003), the problems inherent in limiting the identity of gender-nonconforming individuals to the binary gendered legal system (Monro 2005; Spade 2008; Salamon 2010), and the dynamics of legal articulation of the third gender (Bochenek and Knight 2012; Knight, Flores, and Nezhad 2015). However, there has been little research on the instrumental and symbolic value of the legal third gender for gender-nonconforming individuals. Moreover, while some scholars point out potential problems associated with the creation of a single third gender category for all the disparate individuals who do not fit in the binary gender categories (Stryker 2004; Dufner 2015), little research has been done on the attitude of gender-nonconforming individuals toward the legal third gender.

Another shortcoming in previous research is the limited understanding of the different ways in which social institutions and discourses influence the way gender-nonconforming individuals interact with a predominantly patriarchal legal system, especially in nonwestern contexts (Hull 2016). To address these important gaps in research on legal identity and consciousness of gender-nonconforming individuals, I investigate the following research questions in this article: How do gender-nonconforming individuals interpret and respond to the legal third gender category? What are the different social, religious, and institutional discourses that influence legal consciousness of gender-nonconforming individuals about the legal third gender category? To this end, I specifically focus on the Khawaja Sira community, a marginalized, gender-nonconforming group in Pakistan. I analyze the different social discourses that have emerged around the recently created legal third gender identity in Pakistan and its influence on the legal consciousness of the Khawaja Sira community.

My findings point to the limitations of creating a legal third gender category within a patriarchal sociolegal order where important benefits associated with masculine identity must be given up before choosing the third gender identity. My findings suggest that many gender-nonconforming individuals choose their legal gender after weighing the social and legal benefits of the third gender against its opportunity costs. Hence, the legal third gender is not always the obvious choice for gender-nonconforming groups. In this research context, I find the Khawaja Sira community engaged in a “patriarchal bargain” (Kandiyoti 1988) and prefer the masculine legal identity as it helps them achieve their immediate practical interests. My research cautions against overemphasizing the symbolic value of legal recognition for gender-nonconforming groups. I further suggest that since the legal third gender threatens the naturalness of the binary gender system—an important institutional foundation of patriarchy (Custer 2016)—multiple patriarchal social institutions (i.e., family and government) work to dissuade gender-nonconforming individuals from choosing the third gender legal identity. Therefore, institutionalized patriarchy, in its various forms, emerges as an important mediator of the legal consciousness of gender-nonconforming individuals. Overall, my results suggest that unless accompanied by tangible benefits to offset the patriarchal institutional biases against it, the legal third gender is not likely to be a viable strategy for social inclusion of gender-nonconforming individuals, at least in regions like South Asia where such individuals often live in extreme poverty. In fact, this study suggests that, given the associated social, psychological, and financial costs, adopting the legal third gender can potentially leave gender-nonconforming individuals in these regions socioeconomically worse off.

Legal Consciousness of the Third Gender

Globally, legal recognition of gender-nonconforming individuals remains an important unresolved policy issue as no singular approach exists to legally accommodate the unique identity of such individuals. While some countries allow change in legal gender, generally contingent on proving material reconfiguration of body through medical procedures, such policies have been criticized for trying to subsume the unique identities of gender-nonconforming individuals within the binary gender system (Butler 2004, Schilt, and Westbrook 2009). In the last decade, some countries have opted to create a legal gender category to recognize the unique identity of gender-nonconforming and/or intersex individuals. This recent trend represents a marked policy shift toward the legal recognition of gender-nonconforming individuals. However, there is justified reason to be cautious because, unless accompanied by redistributive changes, historically the results of legal recognition of minority groups have been less than satisfactory (Fraser 2000, 2001).

Legal consciousness research—the “search for the forms of participation and interpretation through which actors construct, sustain, reproduce, or amend the circulating (contested or hegemonic) structures of meanings concerning law” (Silbey 2005, 334)—offers another explanation for the limited social influence of legal recognition. Legal consciousness researchers have illustrated that the citizen-law relationship is contingent on the social discourses and institutions within which the law operates. Even in the presence of ostensibly neutral laws, their differential valuation through “mediating factors such as social networks, interactions with legal actors, and the media; and individual factors including familial desires and demographic and socioeconomic characteristics” (Baumle and Compton 2015, 8) is an important determinant of how individuals respond to their legal recognition. Legal consciousness research, therefore, highlights the important distinction between law—what is considered formally (or officially) legal—and legality—“meanings, sources of authority, and cultural practices that are commonly recognized as legal” (Ewick and Silbey 1998, 22). A classic example in this regard is that of “welfare stigma” (Moffitt 1983) where many eligible individuals refuse to enroll in welfare programs of the government because of the negative social construction of welfare recipients (Stubera and Schlesinger 2006). In the present case, an important factor complicating the legality of the legal third gender is institutionalized patriarchy, that is, the system of social structures, discourses, and practices through which asymmetrical power relations between men and non-men are maintained. As Custer (2016, 40) notes, “rigid adherence to a binary gender system is necessary for maintaining patriarchy. . . . Gender non-conformity challenges the binary system and hence the patriarchal status quo.” In response to this threat, multiple patriarchal institutional orders—for example, family and government (Walby 1990)—try to make sure that the gender-nonconforming individuals conform to their socially defined gender identities. Introduction of legal third gender is likely to exaggerate “gender panics” (Westbrook and Schilt 2014) in patriarchal institutions to make sure this category does not become a viable option for gender-nonconforming individuals.

Legal consciousness researchers have helped illuminate the underlying dynamics of the different ways in which people “engage, avoid, or resist the law and [its associated] meanings” (Silbey 2001, 8626). Ewick and Silbey (1998) identified three primary ways in which individuals respond to law: before the law, with the law, and against the law. Before the law consciousness conceives law as objective, impersonal, authoritative, and external to the social sphere. In such consciousness, there is limited room for human agency, as law is perceived to define rules of action and legitimate behavior. In with the law consciousness,

legality appears as an arena in which actors struggle to achieve a variety of purposes . . . people also understand that there are costs associated with using the law, or with using it in a certain way. . . . Recognizing these constraints on legality, . . . citizens often decide to turn to the law, or challenge the law, only after a rough calculation of the probability of realizing the ends sought. (Ewick and Silbey 1998, 131)

Finally, against the law consciousness treats law as “something to be avoided” and “legality is seen as capricious and thus dangerous to invoke” (192). It includes different ways in which individuals contest the scope and power of law by resisting its imposed meanings and identities.

A specific emphasis of legal consciousness research has been on the legality of marginalized groups to understand how legal identity of marginalized groups influences their legal consciousness (Silbey 2005). However, as Hull (2016) recently pointed out, legal consciousness of lesbian, gay, bisexual, and transgender (LGBT) communities continues to remain a largely neglected area where the limited previous research has primarily focused only on parenting (Connolly 2002; Baumle and Compton 2015) and marital issues (Hull 2003; Harding 2006, 2011; Richman 2014). This research highlighted the complex heterogeneities in how LGBT individuals respond to a disjointed and imperfect sociolegal order. However, scant previous research has focused specifically on the legal consciousness of gender-nonconforming individuals. As Hull (2016) notes, this is an important limitation as gender-nonconforming individuals “face legal issues and obstacles that are somewhat distinct from the concerns of sexual orientation minorities, [for example] challenges regarding legal forms of gender identification” (Hull 2016, 556). Moreover, all legal consciousness research on LGBT groups has been done in primarily western developed countries. Since law and state are ascribed with different meanings in other parts of the world (Inoguchi and Blondel 2010), we still have limited context-specific understanding of the different ways in which gender-nonconforming groups interpret and respond to their legal identities.

Third Gender in Pakistani Law and Society

The Khawaja Sira² community of Pakistan is a heterogeneous group largely consisting of gender-nonconforming individuals. While most members of the Khawaja Sira community are biological males with a preference for the feminine gender, many male-to-female transsexual, intersex, impotent individuals, and victims of childhood sexual abuse also self-identify as Khawaja Sira.³ However, almost all members, regardless of their reasons for joining, adopt the feminine gender after joining the Khawaja Sira community (Nisar 2016). In a society that has one of the highest number of missing women (Khan 2007; Sen 1992) and special privilege is accorded to the male child, the cardinal sin of the Khawaja Sira—who are generally labeled as “sons” at their birth—is their insistence that they are “not men.” Through their performative femininity, the Khawaja Sira community problematizes not just the naturalness of a binary gender system but also the social role expectations for men. Most members of the Khawaja Sira community are expelled from their homes in adolescence generally after repeated verbal and physical abuse (Nisar 2016). After leaving home, such individuals typically join the Khawaja Sira community and, based on an elaborate kinship structure, become Chela (student-child) of a Guru (parent-teacher). Because of social and familial biases, very few members of the Khawaja Sira community are literate. The few members who are enrolled in school often drop out as a result of social and sexual stigmatization. Living in extreme poverty, most members of the Khawaja Sira community resort to begging, dancing at private parties, and sex work to make ends meet. Overall, the Khawaja Sira community has a pariah status in Pakistani society and until recently had no formal protection of their legal rights.

In 2009, after some members of the Khawaja Sira community dancing at a marriage ceremony were arrested and subsequently allegedly roughly handled by the police, a local jurist petitioned the Supreme Court of Pakistan to ensure that the Khawaja Sira community (the word used in the petition was “She-males”) be given their fundamental human rights as envisioned by the Constitution of Pakistan. Almas Boby, president of the Pakistan She-Male association, also joined the case as a petitioner in-attendance. From 2009 to 2011 and during this case, the Supreme Court issued multiple directives about the social position and legal identity of the Khawaja Sira community. The most prominent was the creation of a third gender category to legally recognize the unique identity of the Khawaja Sira community. In its final decision, the Supreme Court declared that the “rights, obligations including right to life and dignity [of the Khawaja Sira community] are equally protected [by the constitution]. Thus no discrimination, for any reason, is possible against them as far as their rights and obligations are concerned.”⁴ While the Supreme Court decision had its limitations—especially in its articulation of the third gender identity as being biologically determined—it was widely celebrated as a positive step toward the social inclusion of the Khawaja Sira community.

After the Supreme Court decision, the National Data Base and Registration Authority (NADRA)—the public agency which issues legal IDs (known as Computerized National Identity Cards or simply CNIC)—created a third gender category, officially called Khawaja Sira, in its national registration system.⁵ While the decision to create the legal third gender was accompanied with much fanfare, the response of the Khawaja Sira community to this new gender category has been underwhelming. Per a recent report, only 1,432 individuals had opted for the legal third gender (The News 2015). As the estimated number of the Khawaja Sira community in Pakistan ranges from 80,000 to 300,000 (Baig 2012), it indicates that less than 2 percent members of this community have chosen the legal third gender. This seemingly paradoxical choice problematizes the instrumental and symbolic value of the legal third gender. Therefore, it is important to understand how the Khawaja Sira community interprets the legal third gender and the different social discourses that influence the legality of the third gender in Pakistan.

Methods

The data for this article comes from a nine-month person-centered ethnography in Lahore, Pakistan. In addition to direct observation and participant observation, in-depth interviews were conducted with 50 members of the Khawaja Sira community to understand their personal and social choices and experiences. Person-centered ethnography was used as the primary research method because it is based on the idea of an intersubjectively constructed social world and enables the researcher to situate an individual within multiple social, symbolic, and material discourses (Levy and Hollan 2014). This makes it the method of choice to investigate various aspects of legality, subjectivity, and agency. Access to the Khawaja Sira community was made possible by a key member of their local leadership who also helped me become familiar with their unique language—the Khawaja Sira Farsi⁶—used for internal communication within the community.

During fieldwork, I visited many institutional sites and Khawaja Sira’s homes and conducted a total of 76 formal interviews with 50 Khawaja Sira at 11 research sites. Of these, three were Khawaja Sira deray (places generally owned or rented by the Guru where multiple members of the Khawaja Sira community live together), four were places of work, and the rest were homes of individual Khawaja Sira. To maximize exposure—used in interpretive research instead of sampling to focus on diversity of research participants along multiple axes of identity—members of the Khawaja Sira community with different ages, education, and vocations were interviewed. A summary of some critical aspects of the individual identities of my research participants is provided in Table 1.

Table 1:

Demographic Characteristics of the Participants

Characteristic	n
Age
19–30	7
31–40	9
41–50	16
50–60	12
>60	6
Education
Illiterate	28
Religious education	1
Some schooling	15
High school	2
College	4
Preferred legal gender on ID (all participants N=50)
Man	40
Khawaja Sira	9
No preference	1
Preferred legal gender on ID (participants with IDs n=16)
Man	11
Khawaja Sira	4
No preference for legal gender	1
Actual legal gender on ID (participants with ID n=34)
Man	32
Khawaja Sira	2

The data were collected and coded in Urdu and Punjabi (and Farsi), the native languages of my research participants. The data collected during fieldwork was coded iteratively following thematic content analysis protocol (Kuckartz 2014) using MAXQDA. After conducting the first few interviews, I coded the data to identify primary themes and then used this preliminary analysis to inform future interviews. To analyze the heterogeneities within research participants, individual subjects were treated as the unit of analysis and the main themes concerning the legal consciousness of the Khawaja Sira community inform the discussion in the next section. To protect the anonymity of my research participants, I have used pseudonyms.

To capture the experiences of my research participants, I used multiple checks for trustworthiness (e.g., reflexive bracketing, respondent validation, and accounting for self) appropriate for qualitative-interpretive research. An important clarification in this regard concerns my status as an adult cisgender male. Cisgender males generally engage in gender policing of the Khawaja Sira community more frequently as compared to cisgender females (Nisar 2016). Moreover, as most members of the Khawaja Sira community prefer males as sexual partners, they also attract many unwanted suitors. This is where my positionality as a married individual with children was helpful. Being an adult unmarried male has a different cultural construction in Pakistan as compared to someone who is married and has children. I felt that this aspect was helpful in dissuading some initial apprehensions my research participants had about a male researcher. This is also related to my struggle with journalists during fieldwork. Many members of the Khawaja Sira community were apprehensive of (mostly male) journalists who scandalized any information given to them. Owing to limited social science research in Pakistan, apart from the written consent form it was difficult at times to explain the difference between a journalist and a researcher. Initially, I addressed these concerns by explaining in detail my position as an academic and my primary research interest in understanding the intersections between the Khawaja Sira community and the law. Moreover, explaining the written consent form was very helpful, as understanding that I could not violate a code of conduct (regarding ethics, confidentiality, and privacy) seemed to address some of the initial concerns of my participants. As most journalists have a short-term engagement with the Khawaja Sira community for a news article or segment, it was my long-term engagement with the community that helped me gain their trust. For further details of fieldwork and different checks for trustworthiness used during this research, please see Nisar (2017).

Choosing the Legal Gender: Legal Consciousness of the Khawaja Sira Community

Family and Legal Thirdness

The other day three Khawaja Sira came to my house. They looked just like women and even had the [sex realignment] operation done. They said, “Sister we have to get the ID as a man!” I said, But you look just like women, why don’t you register as Khawaja Sira?” to which they replied, “No Sister! Our uncle will kill us if we do that.” . . . I think if there was less family pressure, more among us might register as Khawaja Sira. (Salma, 45, unemployed, an influential Guru)

The new ID introduced by the government can only be issued . . . in the name of the Gurus. We want our name to be included with the name of our parents. Our parents gave us birth, our mother carried us in her womb for nine months, our father did hard labor for us. They took care of us in our childhood. How can we erase their name? (Katrina, 33, unemployed)

These two narratives indicate the multiple ways in which family influences the legal consciousness of the Khawaja Sira community. Many families keep tabs on the members of the Khawaja Sira community and actively discourage a public display of their feminine identity even after they leave or are thrown out of their homes. For example, one research participant was brutally beaten by her family members after her interview aired on a local news channel about the rights of the Khawaja Sira community, as she was thought to have brought shame on the family. Another was taken to her family home on a false pretext and her long hair was forcibly cut short to minimize her overt femininity. This anxiety over family honor reaches its peak when the families come to know that their “son” is going to register as a Khawaja Sira. Consequently, various strategies—like admonition, threat of violence, and withholding family verification (mandatory for getting a legal ID)—are used to dissuade family members from choosing the legal third gender.

However, family influence on the legal consciousness of the Khawaja Sira community is not always in the form of external coercion. As noted in the context of welfare stigma, individuals often internalize negative stereotypes associated with being a welfare recipient. This internalization, in turn, results in refusal to participate in welfare programs even if one is eligible to receive benefits (Stubera and Schlesinger 2006). Many of my research participants had also internalized the social discourse that choosing the legal third gender meant abandoning their parents. This was partly because most members of the Khawaja Sira community believe that an integral part of choosing the legal third gender is to replace their father’s name with that of their Guru even though this is legally not possible. That is why most members of the Khawaja Sira community call the ID with the masculine gender as the family card and one with the third gender as the Khawaja Sira card.

Even though most of them had been forced to leave their homes, formally abandoning family remained a taboo as obedience to parents and psychological connection to family (Stewart et al. 2003) are idolized in Pakistani society. To them it seemed as if choosing the third gender legally would make their disconnect from family “real,” and they ended up choosing the masculine gender because they thought it would keep them, at least symbolically, connected to their families. Nargis, who is 56 years old, summarized this sentiment the best when she said, “There is no use of it [legal third gender]. People say get it, get it. How can one forget one’s family, one’s parents?” Among my research participants, only those who had experienced especially bad breaks from their families or whose parents had died wanted to choose the legal third gender. In fact, a couple of these participants even demanded that they be allowed to use their Guru’s name instead of their father’s to make the disconnect from their families formal.

Religion and Legal Thirdness

Religion plays an important part in the governance structure of Pakistan—a country that takes pride in being created as a self-proclaimed Islamic state. That is why religious scholars hold a great deal of influence in molding public opinion on different social issues. While traditional sources of Islamic Law are mostly silent about the Khawaja Sira identity, most contemporary religious scholars rely on the dominant social construction in Pakistan that gender–sex disjunction is not possible and that the only authentic third gender/sex is congenital and biologically determined. Such scholars believe that the Khawaja Sira are men only pretending to be women and should, therefore, perform their religious duties only as men.

Paradoxically, while the Khawaja Sira community contests social discourses that deem their femininity to be illegitimate, when it comes to religion they conform to the dominant patriarchal discourses. Most members of the Khawaja Sira community believe that for God, they are (ontologically) men and should perform all religious rituals as men; otherwise, those rituals will remain imperfect. From Naghma’s observation that “we are born as boys in our parents’ homes” to Neelo’s opinion that “we will be resurrected with men at the day of judgment” and that she wants to be “standing in the Prophet’s row⁷ [implying the row of men] on the day of judgment,” it was the most consistent finding about the religious beliefs of the Khawaja Sira community. This is somewhat surprising since most other narratives of the Khawaja Sira community about their self-identity are based on the idea that they have a feminine soul inside a masculine body. I would have assumed (perhaps naively) that religion should be concerned with the soul and not the body. But when it comes to religion, the soul paradoxically takes a back seat for the Khawaja Sira community and the body takes over.

This religious belief becomes important for the Khawaja Sira community when they travel to Saudi Arabia for religious pilgrimage (Umrah or Hajj). Most members of the Khawaja Sira community believe that they will either not be allowed to enter Saudi Arabia or must perform religious rituals like women if they choose the legal third gender. Both options are unacceptable to them. My research participants narrated multiple incidents where their Khawaja Sira friends were not allowed to travel to Saudi Arabia. These fears were augmented when multiple news outlets reported last year that Saudi Arabia had banned all members of the Khawaja Sira community from traveling to the country (Rao 2016). While this news was soon denied by officials from the Saudi embassy in Islamabad (News Today 2016), the Khawaja Sira community is still apprehensive about choosing the legal third gender or traveling internationally dressed in feminine clothes. As one participant noted, “No one registered as a Khawaja Sira can go for Umrah. Those [Khawaja Sira] who have long hair and breasts can’t go for Umrah either [even if they register as men]. Some Khawaja Sira went to Umrah [in recent months] but they cut their hair short and all of them had ID as men.” Overall, it is always easier for members of the Khawaja Sira community to travel to Saudi Arabia as men even if there is no official policy that bans their travel. The uncertainties regarding travel to Saudi Arabia also highlight the difficulties inherent in introducing legal third gender in the international governance context. Even if Pakistan recognizes third-gendered individuals, they still must conform to the binary gender system while traveling internationally.

Costs and Benefits of Legal Thirdness

For many members of the Khawaja Sira community, the choice of the masculine legal gender also is motivated by more utilitarian concerns. In a patriarchal sociolegal system, there are tangible economic benefits associated with becoming a “legal man,” which one must forego to choose the third gender legally. For example, men get a higher share of inheritance than women in Islamic and Pakistani law. Many members of the Khawaja Sira community believe that by choosing the legal third gender, they will not be entitled to the share of men and will instead get the share reserved for women (or “non-men”). Simran, 47 years old, unemployed and a Khawaja Sira rights activist, stated:

I always say that we should get IDs as men otherwise we will be counted as women [for legal purposes] and instead of getting a larger (12 anay) share [equal to a man] we will be given a smaller (4 anay) share in inheritance as they [our brothers] would say that since we registered as Khawaja Sira, we are now equal to sisters. That’s why I advise everyone [in the Khawaja Sira community] to get IDs as men . . . to claim complete [and due] share in inheritance.

Such narratives associating legal third gender and a lower share of inheritance circulate widely among the Khawaja Sira community and produce powerful effects. Like Simran, other participants also mentioned inheritance as one of the main reasons they legally chose the masculine gender. In many cases, their primary concern was not about what their share was in inheritance but whether they got any share at all. As noted by the Supreme Court in its decision, the Khawaja Sira community is generally denied any share in their parents’ inheritance. This denial is generally justified on the premise that the Khawaja Sira do not need to save or care for anyone other than themselves (as they do not have any spouse or children). For example, when one participant asked her father the reason for her exclusion from his will, he said incredulously, “What use would you have for the property?” Members of the Khawaja Sira community registering as men are holding on to the hope that legally identifying themselves as men may persuade their parents (and siblings) to let them have their due share in inheritance.

While there are tangible benefits associated with the masculine legal identity, there are hardly any benefits associated with the legal third gender. Even though the Supreme Court had ordered the government to take special measures for socioeconomic inclusion of the Khawaja Sira community—for example, provision of jobs and educational opportunities—none of them have subsequently been implemented (Nisar 2016). Moreover, most institutions in Pakistan have different policies for the collection of gender-related information, none of which associate any material benefits with the legal third gender. As Naima, 37 years old and employed, noted:

What good is [adding the third gender on] the ID for us unless “third-gender” is added to all forms, for example, related to transfer of property, . . . on certificates, on forms for admissions to schools. On these forms, there is never written man, woman, Khawaja Sira. We just have to write man or woman. Unless a third category is added everywhere, how can we get our place and our dignity [izzat]?

Perhaps the clearest example of this disjointedness is the fact that when NADRA advertised special jobs reserved for the Khawaja Sira in 2012, instead of considering third gender on ID as a proof of being a Khawaja Sira, it asked for a medical certificate verifying that the applicants were authentic (biological) Khawaja Sira. Thus, it was technically possible for an individual to be registered as a man and still apply for the job as a Khawaja Sira (which was the option taken by many applicants). Conversely, individuals registered legally under the third gender category could not apply unless they had a medical certificate showing their biological thirdness. Similarly, local nongovernmental organizations (NGOs) that manage most social welfare programs for the Khawaja Sira community do not require the legal identity of a Khawaja Sira for recruitment in their programs. Instead, informal verification by other members of the community or self-identification is preferred.

In the context of Pakistan, it is important to note also that most public institutions—including schools, hospitals, and banks—are segregated along gender lines with separate spaces reserved for men and women. Even though a third gender category has been created, there have been no associated changes in these institutions. Ironically, even in the NADRA offices, no separate lines exist for the Khawaja Sira, who must stand with either men or women to apply for legal IDs. As Mira, 24 years old and unemployed, describes:

There is no separate line for us. When we are wearing women’s clothes, we stand in the women’s line and when wearing men’s clothes, we stand with men. The women start laughing at us while the men start teasing us.

Finally, it also is important to mention that there are a few members of the Khawaja Sira community who prefer the legal third gender because of its symbolic benefits. While their number was very small—at least among those Khawaja Sira with whom I interacted—such individuals often used the Urdu/Punjabi word pehchan (a hybrid of the English words, recognition and identity) to communicate the importance of the legal third gender for them. For them, this new gender category provides the Khawaja Sira community a distinct legal pehchan which offers legal legitimacy to their thirdness. For example, a couple of my research participants considered the legal third gender as being potentially helpful in distinguishing between authentic and unauthentic Khawaja Sira. While the society treats biological thirdness as authentic, for the Khawaja Sira community, authenticity is synonymous with completely adopting their lifestyle. They are very apprehensive of (people they label as) men who pretend to be like them by putting on makeup and feminine clothing to beg at traffic stops yet lead their private lives as men. As they are in direct competition for charity, these men are seen as “usurping our rights” by the Khawaja Sira community. Legal third gender provides an opportunity for the Khawaja Sira community to expose such outsiders as unauthentic. Dildar, 53 years old and unemployed, said:

We argue that there should be a registration of the Khawaja Sira [community] so that those with IDs as Khawaja Sira can be recognized as “real,” and fake Khawaja Sira—who have wives and children yet wear [feminine] clothes like us to beg in our place—can be exposed and removed from our fold.

Administration Burden and Legal Thirdness

Another factor that dissuades the Khawaja Sira community from choosing the legal third gender is the associated administrative burden—high learning, compliance, and psychological costs involved in obtaining a legal ID as a Khawaja Sira (Moynihan, Herd, and Harvey 2014). The Khawaja Sira community faces a high administrative burden while applying for legal IDs because of their social isolation (Nisar 2017). However, this administrative burden increases disproportionately for members of the Khawaja Sira community who previously registered as men but now want to choose the legal third gender. Such applicants are required to submit a medical certificate verifying that they (biologically) belong to the third gender category. Since most members of the Khawaja Sira community are biological males who prefer the feminine gender, they cannot comply with this requirement and are forced to legally keep the masculine gender. Those few members of the Khawaja Sira community who try to prove their “thirdness” face a higher administrative burden in the form of time and travel costs in getting medical certificates from designated government hospitals. Even at these hospitals such individuals are harassed and ridiculed, making it difficult for them to navigate the bureaucratic structures to obtain the requisite documentation.

Moreover, per official policy, if an applicant does not have a previous ID, no medical certificate is required to choose the legal third gender. However, even in this case, lack of knowledge—both among the frontline workers of NADRA and the Khawaja Sira community—about official gender management policies forces the Khawaja Sira community to comply with unnecessary documentation requirements. The following account of Rani (43, employed, Khawaja Sira rights activist) whose friend Neeli wanted to choose the legal third gender provides a good example:

We had a long argument with NADRA officers. They told us they couldn’t help us [register as Khawaja Sira] unless we submitted a medical certificate, indicating that we are really (biologically) Khawaja Sira . . . [The next day, we went to the Jinnah Hospital]. When we reached there, they told us that we were too late and to come again the next day. When we went back the next day, they told us that such medical certificates are only issued at Services and Munshi Hospitals. After that, I thought “Enough is enough” and told Neeli to go home.

As I have noted elsewhere (Nisar 2017), these excessive documentation requirements discourage the Khawaja Sira community from choosing the legal third gender, as it is not only easier to register as a man but many frontline workers also explicitly or implicitly encourage this choice because it conforms with the dominant social and religious constructions about the Khawaja Sira community. As Resham, 61 years old and unemployed, stated:

We have to pass through so many hurdles to register as a Khawaja Sira. [The frontline workers say that] you should grow moustaches. If you want to go to Umrah, you should get ID card as a man. Your face doesn’t look like that of a woman. Your face is that of a man.

And Shahida, 39 years old and unemployed, said:

They made me return to the office 4 times. . . . I am from that area [and] the frontline staff knows me [and my family]. They said both your parents are alive. Why would you do this [abandon your parents by registering as a Khawaja Sira]? . . . We know you. How can we write your name among the Khawaja Sira? You should not abandon your parents’ name.

Another subtle but significant aspect of official categorization of the Khawaja Sira community is related to the choice of terminology in official policy. The word used in the official registration policy of NADRA is “gender.” While the distinction between gender and sex might be clear to social scientists, the same distinction is not used by most members of the Khawaja Sira community. Instead, they refer to the distinction between body and soul to explain how they self-identify. Many research participants mentioned that they had bodies of men but their soul was feminine. It is this distinction that speaks the most to them and not the one between gender and sex. If, instead of gender, there was a category of soul on the legal ID, most members of the Khawaja Sira community would choose the feminine option.

Conclusion

Legal consciousness researchers contend that the hegemony of formal law resides in its ability to define and present the officially sanctioned identities as legitimate and objective. However, not all identities are created equal; the sociolegal benefits and costs associated with different formal identities represent the legally prescribed position of the individuals assuming those identities. This implies that the introduction of a legal third gender represents a position in the sociolegal framework being offered to the Khawaja Sira community by the state. Choosing the legal third gender means that the Khawaja Sira community accepts or will be subjected to the discourses and consequences associated with this new identity. If one was to focus on statistics alone, it would be tempting to label the attitude of the Khawaja Sira community regarding the legal third gender category as an example of against the law consciousness or “refusal of subjectification” (Pathak and Rajan 1989), where individuals being bestowed new legal identities and rights respond by refusing to “occupy the subject position offered to [them]” (572). However, ethnographic research enables us to move beyond simplistic interpretation of the influence of social policies on the “gendering of citizenship” (Korteweg 2006, 336). My research highlights that there are multiple institutional and discursive factors that influence and constrain the legality of the third gender category for the Khawaja Sira community. Therefore, I am hesitant to call the general reluctance of the Khawaja Sira community to choose the legal third gender as an act of resistance.

The legal consciousness of the Khawaja Sira community can best be characterized as with the law consciousness, as they strategically choose their legal gender to take advantage of the material, social and religious privileges associated with the masculine legal identity. Legal pluralists—e.g., Harding (2011)—would object that my conceptualization of the term “law” is too narrow, and if we include normative social structures like family and religion within our definition of law, the Khawaja Sira community actually exhibits in front of the law consciousness as they comply with the patriarchal sociolegal order to reify the binary gender system by registering as men. While I agree that this choice of the Khawaja Sira community does reinforce some social and religious patriarchal discourses about them, it is critical to remember that the Khawaja Sira community resists the same discourses when it comes to their everyday life, often at terrible personal cost. Why then, do they comply with these institutional discourses when it comes to the choice of their legal gender? I contend that at a deeper level, this choice of the Khawaja Sira community problematizes patriarchy and the hegemony of law in several ways, and the legal consciousness of the Khawaja Sira community should be conceptualized as a strategic “patriarchal bargain” (Kandiyoti 1988) based on a personal cost–benefit calculus. The salient aspects of this bargain are as follows: First, my research highlights that most members of the Khawaja Sira community do not consider the formal legal system to be the arbiter of their self-identity. Before starting my fieldwork, I expected that the symbolic benefits of legal third gender—legal legitimacy of their thirdness—would be an important incentive for the Khawaja Sira community to choose it. However, I gradually realized that when their mere presence in a room or a workplace is enough for others to label and ostracize them—even when they do not want to disclose their real gender identity—there is limited, if any, utility in the legal third gender for most members of the Khawaja Sira community. It is not as if registering as men will prevent them from living their lives as third-gendered individuals. Society already considers them to be charlatans, and even if they choose the legal third gender that social assessment is unlikely to change. Hence, to the extent possible, they decide to strategically use the patriarchal legal order for their own benefit.

Second, a very important qualifier in the present context is lack of tangible material benefits associated with the legal third gender. If the government associates economic benefits—like social welfare—with the third gender, more members of the Khawaja Sira community will likely adopt the legal third gender as the strategic benefit will be higher. Paradoxically, as allocation of governmental resources is often based on the numerical strength of different groups, unless a critical mass of individuals chooses the legal third gender, the government is unlikely to associate any economic benefits with it. For example, a provincial minister in Punjab recently noted that since the number of officially registered Khawaja Sira was very small, the government was unable to fix any separate job quota for them (Dawn 2015). Hence, after the creation of the legal third gender, there is no perfect choice for the Khawaja Sira community: the choosing of the legal third gender means accepting social and religious stigma and foregoing the benefits associated with the masculine identity, while choosing to register as men potentially compromises their long-term agenda of symbolic and material inclusion.

That is why it is critical to keep in mind Molyneux’s (1985) distinction between strategic (long-term, group based, deductively articulated) and practical (immediate, need-based, inductively articulated) gender interests. For the Khawaja Sira community—most of whom live in extreme poverty—the practical (material and religious) interests that are served better by choosing the masculine gender legally are more urgent and important. On the other hand, there is no guarantee—at least in the short-term—that their strategic gender interests (like social acceptance and material inclusion) will be served by choosing the legal third gender. The Khawaja Sira community, therefore, makes a purposeful patriarchal bargain by choosing the masculine legal gender to take advantage of the privileges associated with the masculine identity in a patriarchal sociolegal order while foregoing the symbolic benefits associated with the legal third gender.

Therefore, in addition to improving our understanding of the legal consciousness of gender-nonconforming individuals, this analysis cautions against considering the introduction of the legal third gender as an unambiguously positive step for the inclusion of gender-nonconforming individuals. My research also problematizes the assumption that gender-nonconforming individuals would uncritically adopt the legal third gender because of its symbolic benefits. My findings further suggest that if the legal third gender is to become a viable option for social integration of gender-nonconforming individuals, governments, especially in developing countries, must associate with it tangible material benefits—such as improved job opportunities or dedicated welfare programs—to offset the social costs that individuals must bear by choosing the legal third gender.

Footnotes

Author’s note:

I would like to thank Thomas Catlaw, Spiro Maroulis, Mary Feeney, Ayesha Masood, and the anonymous reviewers for their constructive comments on earlier drafts of this article. I am also thankful to my research participants who were kind enough to share their personal and social experiences with me. This research was supported by grants from the American Institute of Pakistan Studies and Graduate and Professional Student Association, Arizona State University.

ORCID iD

Muhammad Azfar Nisar

Notes

Muhammad Azfar Nisar is an assistant professor at the Suleman Dawood School of Business at Lahore University of Management Sciences, Pakistan. He is interested in understanding the dynamics of the citizen–state relationship with a particular focus on legal categorization, identity formation, social marginalization and policy implementation.

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