The long history of criminalising Hijras

In September 2018, LGBT communities across India celebrated a historic court judgement. The Indian Supreme Court ruled that Section 377 of the 1860 Indian Penal Code (IPC) – which criminalised sex "against the order of nature", and was used against the LGBT community – could no longer apply to consensual adult sex. While the judgement was seen as a major victory for LGBT people, efforts to control, regulate and criminalise sexuality and gender expression continue in many forms, including the Transgender Persons (Protection of Rights) Bill (TPPR), which the recently re-elected Bharatiya Janata Party (BJP) government has announced it will reintroduce in Parliament. The bill, which activists have argued would legitimise violence and discrimination against transgender, intersex and gender non-conforming people, is an example of how colonial laws continue to be replicated in new legislation.

The 2018 TPPR bill criminalises gender diverse people in ways that resemble sections of the 1871 Criminal Tribes Act (CTA) that targeted 'eunuchs', a stigmatising colonial term for Hijras (or Kinnars). The 1871 law provides an important example for examining continuities in the policing of gender and sexuality, because even as the anti-Hijra provisions were repealed in 1911, their language and spirit has been echoed in postcolonial legal and policing practices.