A Pakistani Solution for DOMA?

We all have half-baked research projects that we imagine that we’ll turn our full attention to some day but, in the meantime, they simply provide background mental chatter as we read through the events of the day.  One such (very much) half-baked project of mine is thinking through the implications of legislative efforts to define some of the basic units of biological and, also, family life.  I’ve been interested in this in the context of ‘marriage’—and, in particular, the pluralistic legislative conceptions of marriage that circulate globally and also domestically—but I’ve also been interested in efforts by different U.S. states to legislatively define ‘life.’  It’s seemed to me that—aside from the interesting possibility created by different states’ conception of life that something/one may be ‘dead’ in one U.S. state but ‘alive’ in another—that these legislative efforts open the door to defining ‘life’ not just at conception, but also at, say, 50 weeks.  (Is this where ‘pro-life’ advocates really want to go?)

This is all a way of setting the stage for something I’ve noticed in the backdrop to conversations over the Defense of Marriage Act’s definition of marriage for the federal government, embodied in Section 3 of that Act (“In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”):  Noticeably, this Section 3 definition leaves ‘man’ and ‘woman’ undefined. 

Could, then, President Obama issue an executive order defining ‘man’ and ‘woman,' for federal purposes, as completely contingent on a person’s self-declaration?  In other words, couldn’t one get around DOMA’s imposition of opposite-sex marriage by allowing individuals to identify, for federal purposes, as whatever gender they wanted?  Thus, Alice and Betty could be in a F-F same-sex marriage in a given state, but Alice could elect to be a ‘M’ for federal purposes, thereby positioning her and Betty as in a M-F opposite-sex marriage in the federal government’s eyes?

This brings me to Pakistan, where self-declarations of gender are the (new) law, as I also understand the case to now be in Argentina.  My comparative work has largely been in India, where I’ve focused on non-state Islamic legal institutions and their implications for ideas like ‘the rule of law’ and other liberal values.  But before I started work in India, I was working in Pakistan, and lately I’ve returned to doing work there, focused on a burgeoning movement for ‘transgender’ rights that a 2009 Supreme Court of Pakistan case instigated.  One interesting result of this case, which I have yet to fully explore, is that Pakistan now recognizes 4 (or maybe 5, depending on who you talk to) different official genders, with gender contingent not on birth certificates (largely non-existent in Pakistan) nor medical tests but on self-declaration.  This is all new, so much remains to be worked out, but Pakistan’s example does open up a whole brave new world with respect to gender, family, and perhaps even ‘life’ itself.

Comments

[Monica Eppinger]

Excellent food for thought, and a great example of the benefits of comparative research. Thanks for another thought-provoking post, Jeff. Question: what would Pakistan's law say about gender shifters? Does declaration of one's gender have to be once-and-for-all?

[Jeff Redding]

Monica, thanks for your question. I plan on returning to Pakistan to conduct more in-depth fieldwork, in part to answer questions like yours (I'm also curious to see what the modified national identity card forms list as available genders to choose from). So, I'm not sure as of yet. I imagine that there will have to be some recognition of gender-shifting, since people go through transitions at all points in life, and one of the complaints in front of the Supreme Court of Pakistan was that people were prevented from voting when their national identity card listed a gender that seemed inconsistent with people's self-presentations at voting stations. The Supreme Court has tried to resolve that with their different orders that they've issued in this (ongoing) matter since 2009. Here's a link that you may find interesting: http://dawn.com/2013/04/19/transgenders-the-new-voter-group-in-town/.

[anon]

So, I followed the link and I'm still not sure what the four or five genders are. I understand that cultural constructions from Pakistan may not translate into English well. Are these new categories, like in the U.S.? Are these old categories? Pakistan is multi-ethnic, so are these categories recognized across Pakistan?

[Jeff Redding]

Anon, thanks for your question. So, I've yet to completely verify all of this, but based on an interview that I conducted with the lawyers in Islamabad who initiated the 2009 litigation, there are now at least the following four gender options on National Identity Card applications: 1) Male, 2) Female, 3) Khwaja Sira (male), and 4) Khwaja Sira (female). Khwaja Sira is a Mughal Empire-era Urdu term that has been revived to refer to a group of people who have been more colloquially and commonly called 'eunuchs' (in English) and 'hijras' (in Urdu/Hindi); Khwaja Sira is deemed to be more respectful. There are apparently some Khwaja Sira who identify as more male, and some who identify as more female. The other fifth gender option that I've heard mentioned is 'khunsa-e-muskhil' and the translation of this is especially difficult since this this is a highly Arabacized expression; I think the intention is to represent those who were *born* as hermaphrodites rather than those who went through a gender transformation (later in life). From what I've been told, there will be no medical examination required for anyone who identifies any which way, though I imagine that talking to people on the ground might reveal contrary bureaucratic experiences.

And as to your other question, there are other gender groupings altogether which are not represented in this typology. What was then known as the Northwest Frontier Province (now Khyber Pakhtunkhwa province) submitted a report to the Supreme Court during the 2009 litigation in which the NWFP reported a whole other assortment of gender categories operative in that province (at least). Thanks again for your question and the opportunity to clarify!

[anon]

Jeff, Thanks very much. Very helpful, esp. for those of us to need to brush up on their Arabacized Urdu.