Sexual and Gender Diversity in the Muslim World: History, Law and Vernacular Knowledge
SEXUAL AND GENDER DIVERSITY IN THE MUSLIM WORLD – Book Sample
INTRODUCTION – SEXUAL AND GENDER DIVERSITY IN THE MUSLIM WORLD
The late afternoon mist engulfs Lahore and, with it, the light and noise from the street outside. We are sitting at Neeli’s modest home, surrounded by her sari-clad companions. Her eyes command my full attention. And then, in a somewhat solemn voice, she begins to recount:
Mainandi was the first; there were many others afterwards, but we remember her. Mainandi used to work in a Mughal royal court. One day, one of the women of the royal court got pregnant, so it was necessary to find out how did that happen.
Mainandi used to work at the court, but she was born khwajasara, so she didn’t have the male organ, she had something of the size of an almond. So, when one of the women got pregnant, it was necessary to find out who had impregnated her. So, the men were lined up, including Mainandi, and they started stripping them down naked. Mainandi was really scared, for this was the first time that everyone in the palace would know that she was born khwajasara. When the time came for Mainandi to strip, she was so ashamed of being recognised as khwajasara, that she left the beloved palace and started wandering the streets. She asked the Mughal emperor, ‘Oh, what will become of me?’ And he replied, ‘I give you the authority to beg; go wherever you want’. That’s where the tradition of begging started.
Anyway, so, Mainandi was walking as she was begging, and a zenana came up to her. Zenana asked, ‘What are you doing?’ She replied that she was given authority to beg, because of the way she was born.
And she showed her genitals to the zenana. Zenana went home and took a sugarcane, which has a peel over it. And the peel is really sharp. So, she used it to cut off her male organ. And the next day she went to Mainandi and said, ‘I’m exactly like you now’. But Mainandi was shocked and cried, ‘Oh, what things start happening in this world!’ So, Mainandi prayed to Allah that she would be buried alive. As she prayed, the earth opened up and she started falling inside the earth. And, as she was going in, she told the zenana, ‘Use oil and water on your wounds, and you will be fine’.1
This book is about those who followed in the footsteps of Mainandi and about many other sexually diverse and gender-variant Muslims. The book follows their own footsteps, in literature, oral traditions, vernacular histories and cultural memory. But it is also about finding and understanding their place between the dominant discursive iterations of international human rights law and Islamic law.
In the history of today, the legal concepts of sexual orientation and gender identity are increasingly seen as strictly forbidden grounds of discrimination in international law. Yet, according to some Muslim- majority governments, such concepts explicitly ‘contradict the tenets of Islam’ and can, thus, ‘be considered as a direct insult to the 1.2 billion Muslims around the world’.2 Through a comparative historical analysis, this book interrogates both of these claims, in order to examine their veracity as well as to comprehend why and how they came about.
I argue that the principal historical environment of international human rights law is European legal and social ethos, with its intricate ideological baggage, while pre-modern Muslim polities traditionally housed the key developments in and of Islamic law. This book, therefore, looks into those two specific legal, social and religious environments in order to recount their complex relationship with human sexual and gender diversity.
These parallel genealogies are, then, juxtaposed with a brief ethnographic study of the lifeworlds of sexually diverse and gender- variant Muslims in contemporary Pakistan, where discourses of Islamic law and human rights law meet and produce peculiar localised narratives. The central idea pursued in this book is that Muslim sexually diverse and gender-variant subjectivities are not merely the inert subjects of the dominant discourses of international human rights law and Islamic law, but rather the resilient and skilful participants in their iteration, contestation and localisation, which can involve a variety of disruptive, counter-hegemonic practices. The book also shows that a closer look into the histories of the two dominant discourses reveals the potential for a more harmonious relationship between them, one in which sexual and gender difference is no longer seen as an ‘insult’ but, rather, an intrinsic element of human selfhood.
Subjectivities and Subjects of Analysis
While the number of comparative academic analyses of international human rights law and Islamic law has seen a steady increase,3 they either choose not to address the question of sexual and gender diversity at all,4 or they give it a passing, apologetic commentary. The latter is, for example, the case in Mashood A. Baderin’s widely influential study International Human Rights and Islamic Law, which asserts that ‘[h]omosexuality is generally seen to be strongly against the moral fabric and sensibilities of Islamic society and is prohibited morally and legally under Islamic law’.5
This is, claims Baderin, one of those ‘moral questions’ that warrant the margin of appreciation similar to that in the European Court of Human Rights:6 a leeway from otherwise enforceable principles of international human rights law that would allow the Muslim-majority states to do as they see fit with their sexually diverse and gender-variant citizens.7 This may come as a surprise, especially because the general tenor of this and other similar studies is largely uncritical of international human rights law, which is presented as a model system, in conformity with which the contemporary versions of Islamic law should generally be remoulded.
Excluding sexual and gender plurality from this paramount course may, then, be understood as a balancing act, a ‘necessary’ sacrifice at the altar of inter-governmental ‘human rights’ co-operation in Muslim-majority contexts.
Aside from still indeterminate and unbecoming comparative academic discourses on Islamic law and international human rights law, the literature that focuses on sexually diverse and gender-variant Muslims discusses only ‘the law in context’. Islamic law is seen and dealt with as integral to the Muslim self, while human rights are rarely, if ever, mentioned. The relevant studies include historical,8 literary,9 theological,10 anthropological and sociological11 critique, often by scholars whose personal identification with the subject matter gives these accounts an activist edge.12
This literature generally sees ‘Islamic law [a]s a derivative act tied ultimately to the interpretations and extractions of the jurists and legal scholars’.13 Seeking to sunder a Gordian knot, this literature aims to rescue Islamic law from the legal elites, past and present, by means, inter alia, of its own ‘queer-friendly Islamic hermeneutics’.1
While significant, these academic interventions are not necessarily ‘law-friendly’ in a sense that they, by and large, fail to showcase how the distinctly legal narratives on sexuality and gender had managed to prevail in the great majority of pre-modern Muslim polities and, arguably, resurface in the wake of Muslim-majority nation states.
How, then, can the ‘common grounds’ and disparities between international human rights law and Islamic law be more productively analysed? Where and how can sexually diverse and gender-variant subjects be located and approached? Who are they? When and how did they come about? Does the law – whether of Islamic, European, international or domestic provenance – matter to them, or it is ‘just there’?15 If it does, how do they perceive it and use it in their specific social and political environment? Moreover, what can both historical and present-day discourses about sexuality and gender that affect sexually diverse and gender-variant Muslims tell us about the law itself; that is, about its structures and mechanics, about its social performativity and its capacity for change?
This book has an ambitious task in seeking to offer potential answers to these and many other related questions. If the subjectivity of human beings is understood as their personal interpretations of their experiences (consisting of emotional, intellectual, spiritual, cultural, gender/sexual and – one could also add – historical, political and legal perceptions of themselves, and of the world that surrounds them), then the main protagonists of this book are those Muslim subjectivities whose lifeworlds – the individual realms of experience and desire – transgress the heteronormative boundaries of their society at large. Although, as we shall see, these subjectivities sometimes go by a variety of vernacular and/or globalised taxonomies, in this book I do not attempt to confer upon them any universal identitary lexeme or episteme.
That is because they themselves are, more often than not, exceptionally careful not to be ‘called names’ that they do not feel entirely comfortable with. Furthermore, however important, their sexual and gender experience is only a segment of their negotiation and understanding of themselves, which cannot be artificially extrapolated outside the domain in which other experiences and desires form equally significant iterations of their selfhood.
For this reason, certain discursive practices of Islamic law and human rights may have an affective value, too; that is, they can matter personally, on an individual, subjective level, as part of one’s sense of self. In light of the affective capacity of both Islamic law and human rights, this book benefits, in particular, from the insights of the school of thought known as legal Realism, which aphoristically proposed, in 1881 CE, that ‘[t]he life of the law has not been logic; it has been experience’.16
This chiefly jurisprudential experience,17 the Realists assert, had gradually gone beyond the skilfully dogmatised pragmatic considerations of the past,18 thereby creating large gaps between the ‘law in books’ and the ‘law in action’.19 Central to the later elaborations of these claims was a proposal, put forward in 1979 CE, that ‘legal action’ of sorts also takes place outside the formal realm of the law – that is, in its shadow20 – via an intricate web of everyday bargaining practices.
The Realist view of law is, thus, not confined to legal statutes and treatises, or to their formal mechanisms of implementation; instead, ‘law [is] in flux’21 precisely because it is based on human agency on various societal levels, including those that may not be readily apparent or acceptable to the ‘official’ legists. When dealing with Islamic law and international human rights law, then, this book also takes an interest in their historical and contemporary shadows. As we shall soon find out, these shadows are bursting with (legal) life.
The Concept, Scope and Structure of the Book
This book rests upon three interrelated premises. First, I propose that a critical, comparative look into the historical trajectories of international human rights law and Islamic law can unearth hitherto uncharted legal and social landscapes, in which what passes today as ‘the law’ on sexual and gender diversity, in either Muslim or human rights milieux, is given a much-needed contextual interpretation.
The interpretative signposts come from jurisprudence, but also from the politics, theology and sociology of law.
Second, if this comparative historical exercise is to include ‘the shadow of the law’ as well, it needs to develop a critical approach both to how legal historiographies are told and to what sources and materials they encompass. The problem is not only in the hegemonic deployments of ‘European’ knowledge and worldviews, commonly centred in Enlight- enment thought, permeating academic research; the difficulty also lies in escaping from the ideas advanced by legal studies as to where one can seek and locate the law (of the present and of the past).
This book thus embraces chiefly anthropological approaches to legal research, including explora- tions of cultural memory and vernacular narratives about the law – phenomena well below the radar of legal studies. Related to this is the question of the approach to history as such: its periodisation; its obfuscation of ‘non-normative’ sexual/gendered subjectivities; its ideological colour- isation of people and events; in short, its limited capacity to listen and to tell. This book seeks to overcome those misgivings by inventing, in due course, its own, ‘interruptive’ narrative voice.
Third and lastly, it is posited that, whatever one can discover in a general historical study of international human rights law and Islamic law, those findings need to be tested on the ground. In other words, a material locale, with its idiosyncratic social and legal landscape, offers an all-important litmus test of broader theoretical claims. In this case, then, a critical legal ethnographic analysis is pursued, based largely on my fieldwork, in 2011 CE, on the gender-variant and sexually diverse Muslims of Lahore, Punjab and Pakistan.
Neither that specific research, nor this book in general, pretends, however, to convey a ‘totalistic’ narrative of sexual and gender difference in any and every Muslim locale. The same caveat applies to my explorations of the general discursive practices of international human rights law and Islamic law. Their aim is, rather, to offer a limited contribution to the ongoing academic and societal debates on gender, sexuality, law and human rights, especially in Muslim contexts.
The tale of the book that is about to unfold is woven around three major quests, each with a specific geographical and temporal scope. The first one explores the discursive practices and legal landscapes that arguably have coalesced, over the past two millennia and only after dramatic seismic moves, into what is today seen in international law as the dominant position on sexual and gender diversity. The second quest follows Islamic law:
from its inception, in the seventh-century CE Hijaz,22 through its iterations and developments in the centres of Muslim medieval thought (including historical ‘visits’ to Damascus, Baghdad, Cairo and Istanbul), until its modern and post-modern incarnations.
The goal is to provide a closer look into the Islamic legal and social ethos, as it relates to sexual and gender plurality. Finally, the third pursuit begins in Lahore and stays within the Indian subcontinent; this story begins with the imponderabilia23 largely associated with the region’s Mughal past, but its main protagonists are the contemporary gender-variant and sexually diverse Pakistani Muslims, with their vernacular experience of Islamic, international and municipal law, and of human rights.
The structure of the book is as follows: Chapter 2 offers a brief discussion of the meanings and scopes of the key notions used in this study. Chapter 3 examines the historical and contemporary domain of international human rights law. It recounts a discursive genealogy of criminalisation and decriminalisation of gender-variance and certain same-sex sexual practices, and it then moves on to discuss gender/sexual plurality in post-colonial international law.
Chapter 4 turns to the Islamic legal tradition and its philosophical, historical and socio- political perspectives on sexual and gender diversity. After a detailed account of the early Muslim polities, it also considers the relevant laws and their political and cultural milieux in Muslim colonial and post- colonial societies.
Chapters 3 and 4, then, can be read in parallel with one another, and thus compared and contrasted. In Chapter 5, the high seas of international human rights law and Islamic law meet in a single, contemporary locale: that of the Islamic Republic of Pakistan and, more specifically and intimately, its cultural capital, the ancient city of Lahore, with its numerous sexually diverse and gender-variant subjectivities and their exhilarating legal narratives. Finally, Chapter 6 hosts some concise concluding remarks.
How to Read and ‘Interrupt’ with this Book
In so far as the relevant historical and contemporary literature is concerned, this book pursues an interdisciplinary theoretical approach mindful, in the first place, of the value of critique24 and of those critical studies of law, gender and sexuality that are based on, or at least take account of, vernacular systems of knowledge. Those include, but they are by no means limited to, the various post-colonial, Marxist, feminist and legal Realist insights. Also, whenever possible, the preference is given to
primary historical sources, although their secondary critical explorations are not dismissed. But such multiplicity and hierarchy of sources does not guarantee, in and of itself, the unseating of hegemonic pasts. In fact, the very categories of ‘time’ and ‘context’ are often susceptible of historical determinism that seeks to preserve the normativities of the present by means of an overbearing, seemingly orthodox past. That there are parallel and multiple pasts and presents, sometimes providing utterly disparate views of public or social ‘order’, is beside the point here; what matters is how to approach and critically intervene into the continuous reproduction of such hierarchical trajectories of both ‘time’ and ‘context’.
Historical analyses pursued in this book – particularly those relating to Islamic law and the Muslim world – seek to avoid linear portrayals of the past. Instead, an ‘interruptive’ method is developed, which allows for looking into historical narratives from various temporal and cultural contexts, thus challenging the mainstream, non-vernacular periodisations and generalisations of certain long-lasting historical phenom- ena. This method relies especially on interludes – the detailed explorations of a certain topic from a specific cultural angle – strategically deployed within the main narrative to balance its potentially ‘totalising’ effects.
The idea is, quite simply, to interrupt the central storyline with shorter and more specific narrations, which by revealing how a particular historical community has dealt with certain issues can help us see those issues as developing in multiple, sometimes even incommensurable contexts, rather than through an imagined, general linear progression.
Legal studies are, arguably, especially prone to crude historical generalisations; this book is careful to avoid this unhelpful disciplinary predicament.
The empirical segment of this book, presented in Chapter 5, is a critical ethnography of law and society in Lahore and, by extension, in Punjab and Pakistan, focusing on the lifeworlds of sexually diverse and gender-variant Muslims.25 Since an ethnographic research ‘acquires knowledge of the social world from intimate familiarity with it’,26 the fieldwork for this book relies primarily on the process of ‘participant observation’, a qualitative anthropological method that involves, inter alia, unstructured or semi-structured individual and group interviews27 as well as records of ‘everyday life’.
In this book, it is also complimented with an examination of the collected oral traditions and recordings of other iterations of cultural memory in Lahori daily life. The empiricist
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