Citizenship and Transgender Rights: A Matter of Dignity and Recognition

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Khin Chan Myae Maung argues that transgender people in Myanmar are treated as less than human, in law and society.

The discourse on citizenship and sexuality is one that is complex and delves into understandings of bodily autonomy and human rights. One’s citizenship in a civil and legal context relates to one’s belonging and recognition in society. If one’s legal citizenship is threatened, then subsequently one’s right to belong and be recognized in society is threatened as well. Discussing transgender identity and citizenship within the context of Myanmar calls for a nuanced discussion of human rights and recognition. Through the work of gender theorist Judith Butler, this essay will shed light on the dynamics of transgender identity and body politics.
Although citizenship can be defined in many ways, T.H Marshal’s definition is one that is that is most cited in sociological works concerning citizenship. It states that a citizen belonging to a nation is entitled to three elements; “civil or legal rights, political rights, and social rights.” (Marshall 1950 in Richardson 2012, p.219). When one is a citizen of a nation, one is allowed to reap the institutional, social and cultural privileges that the nation and society have to offer. For example, the right to own land and property, the right to vote, and the right to a fair trial in the legal system are all benefits of citizenship. Often people take the privileges of citizenship for granted, as they have never been challenged. The concept of ‘full’ citizen as opposed to ‘partial’ citizen, as is the legal categorization in Myanmar, is grounded in normative expectations prescribed by a society that creates exclusivity. ‘Full’ citizenship is grounded on notions of heterosexism and the need to be able to give back to society in particular ways. Whether through the workforce or through the ability to produce children, there are societal expectations of what it means to be a “functional” member of society.

Citizenship not only holds together our notion of who belongs and who doesn’t. It also acts as a cohesive social bond that bands people together under one label of national identity. Although legal and civil rights are important, social belonging and recognition are crucial to one’s status of being. These social resources may be communal and familial, or they might exist on individual levels of respect and dignity of one’s personhood. Judith Butler’s work on body politics in Gender Trouble discusses the importance of this recognition of personhood. Butler presents the notion of “intelligible gender” and “cultural intelligibility”, the ability for a society to make sense of one’s identity (1990, p.17). The “intelligible gender” as Butler argues, is the one that conforms to notions of “coherence” between sex and gender (1990, p.17). Male and female are to masculine and feminine as husband is to wife— this heterosexism is adopted by society to make sense of gender.

On a deeper level, the idea of intelligibility reveals how diverse gender identities are denied social recognition. If one’s gender identity or sexuality is “incoherent” within an understood social framework, one’s personhood starts to come into question (1990, p.17). The dignity and respect prescribed with one’s personhood are what protect people from violence, both physical and symbolic. And if people are regarded by society as ‘partial’ citizens, they are no longer allowed equal dignity and respect. One may question how society could deem members of their own community to be sub-human, or second class citizens. The permissibility of violence stems directly from citizenship as well as laws and policies because of the partial sexual citizen status that comes with being transgender. It is a sad reality that dignity and respect are regulated in accordance with socially-prescribed hierarchies.

Even in 2018 Myanmar, voluntary “carnal intercourse against the order of nature” is illegal under section 377 of the penal code. Although it is not generally enforced, it is punishable by ten years of imprisonment if authorities see fit. Lesbian, gay, bisexual, transgender and queer citizens are not protected from rape and sexual harassment, as laws regarding sexual harassment are written solely for cis-gendered heterosexual citizens. Cis-gendered heterosexual citizens are those whose gender identity aligns with the gender they were assigned to at birth. Transgender identities are not recognized in the court of law as there is no legal process for transgender individuals to change their name, birth certificate or National Registration card in court. With the presence of discriminatory laws and the lack of laws and policies in place to protect and serve LGBTQ individuals, political and social institutions are permitted to carry out acts of symbolic and bodily violence towards these communities.

Several incidents of gender-based violence have been documented by LGBTQ activist and human rights groups. Due to Myanmar’s institutional practices and weak infrastructure, the law fails its LGBTQ citizens as it is often used to punish victims, rather than protect them. In several cases, police have used coercion to negotiate and delegitimize cases of violence against transgender individuals. This misuse of authority has been seen time and time again with regards to the LGBTQ community.

The issue in Myanmar is not that institutions are outwardly trying to oppress and discriminate against transgender individuals. The issue is really the level of complacency towards violence against LGBTQ individuals as well as the invisibility of said violence. The effect of complacency from top authority figures has massive effects on the law as well as social attitudes. Complacency towards violence, as Etienne Krug states in the World Report on Violence and Health, is “strongly reinforced by self-interest” and “social acceptance” of coercion (2002, p.245). To visualize this trickle-down effect of complacency within the context of Myanmar, we can imagine a top-down structural hierarchy organized according to the power and influence people and institutions have and the level of complacency they display.

Visualizing this hierarchy, on the top we can place the complacency of authority figures. In an in-depth investigation into human rights violations against LGBTQ communities by Reuters, senior aide and former National League for Democracy spokesperson, U Win Htein was quoted saying he was “not interested” in addressing LGBTQ rights violations in the country (CoconutsTV 2016, sec.11:51). He insisted that “human rights is a separate subject, gender is a separate subject” (sec.12:11). The inability to recognize LGBTQ rights violations as a legitimate issue stems from not recognizing LGBTQ identities as ‘intelligible’ forms of existence and ‘full’ citizens. This leads to the belief that they are not worthy of protection. U Win Htein’s choice of words is as complacent as it gets, as it is not that he does not see these problems, it is that he is simply “not interested”. As a figure of authority, being the senior aide to one of most influential political figures in the country, U Win Htein’s words carry weight and influence. When he allows and dismisses LGBTQ rights violations, the effects trickle down to institutional and individual attitudes towards violence as well.

The second level of this hierarchy consists of institutional implementations of law and policy and the invisibility of diverse sexual identities in these laws. As I have stated before, there are few laws that aid LGBTQ rights in Myanmar. Although penal code section 377 is not enforced, it still allows perpetrators and institutions to justify violence when it occurs. A report by Heinrich Böll Stiftung, a green politics foundation, found that laws written to keep “community peace and tranquility or public order and morality” are used to coerce LGBTQ communities away from public spaces. This is not to mention the heterosexism in laws that creates voids for LGBTQ individuals in the healthcare system, in legal documentation, and in civil processes. For example,  currently under the section 320(a) of Myanmar’s Penal Code, medical operations for removal of the penis and testicles are illegal. Although the law dissuades doctors from operating male to female transitions in Myanmar, it creates precarious medical risks for transgender individuals who look to transition. This is in addition to the lack of mental health support and counseling for those who are looking to transition. Transgender individuals are most affected by these coercive methods as, due to their non-binary appearance, they are the most visible members of the LGBTQ community.

Going back to Butler’s theoretical framing, we can see how transgender men and women are treated as partial sexual citizens. The “incoherence” of LGBTQ identity in Burmese society is evident in how queer people are seen as unnatural and a public menace. U Aung Myo Min, a well-known Burmese LGBTQ activist shared that homosexuality is seen as a “problem” rather than part of society. Working towards de-stigmatizing homosexuality in the eyes of the public has much to do with the complacency of authority figures allowing for the heterosexism in the law to discriminate against diverse gender and sexual identities.

The effects of faulty law and policy, paired with complacency, create the environment for discriminatory practices in local government. In the same report done by Heinrich Böll Stiftung, they found that transgender victims of harassment, extortion, and sexual violence are often afraid or find no hope in reporting incidents to police. These victims felt that laws were not bringing them justice but instead being used to further victimize members of the community. Zar Li Aye, a lawyer working for LGBTQ clients, stated “the presumption of innocence does not seem to apply to the LGBTQ defendants” as social prejudices find their way into the legal domain. In 2013, a dozen transgender women were wrongly arrested, stripped, beaten and humiliated in Mandalay. The police officers made sure they signed pledges stating that they would no longer wear women’s clothes in public spaces.

These human rights violations, as U Win Htein stated, are not seen as human rights violations because, I argue, LGBTQ individuals are not regarded as fully human. Due to their status as partial sexual citizens, their personhood is not fully recognized. The overall complacency of authority figures, law and policy and local government affect the attitudes of the larger society. Institutional prejudices and discrimination become cyclically supported by social attitudes and biases. On the topic of law and civil liberties, it is important to mention that members of the community do not have the same rights as their heterosexual counterparts.

Even in light of these serious human rights violations, there is a silver lining. LGBTQ activists are now working to win seats in parliament. Activist groups are lobbying to include the protection of transgender men and women in the Prevention of Violence Against Women law. Although currently the law only protects those who are “biological women,” there is hope for change as activists push for legal recognition. People are stepping up and taking responsibilities that should be undertaken by the state into their own hands, with regard to healthcare and aged care for elderly transgender people. Notably, last year a transgender-friendly home for the aged was opened in Yangon. Ma Thazin, the manager of the home, was inspired to open the home after seeing elderly transgender people being denied access to aged care homes. There is also now a Buddhist monastery located in North Yangon that welcomes all LGBTQ community members. Culturally, monasteries act as a safe haven for those who are homeless, have no food or shelter, and only require that you abide by the rules of the abbot.

In social discourses around citizenship, it is important not to forget that lines of exclusivity and inclusion are socially constructed. Although it is institutionally implemented, citizenship is still a socially constructed means of group identification.

As a society, we tend not to question national identity but always negotiate gender identity and sexuality while oppressing racial and ethnic identity. There is an expected universality, that one must adhere to one’s national identity and belong to society. It is no doubt that humans have a need to be recognized and validated by society. But do these harsh lines of ‘us’ and ‘them’ need to exist to maintain order? As a society, can we push for an inclusive social definition of citizenship? Or even move towards a more inclusive state of law and policy? In the light of current human rights atrocities concerning the Rohingya people, the current conflict in Kachin state, and the hundreds of thousands living in IDP and refugee camps, it is becoming increasingly important to question why we allow citizenship and its exclusivities to dictate who deserves dignity and respect and who does not.

Khin Chan Myae Maung is a young Burmese writer from Yangon, Myanmar. In June 2016, she co-founded Yangon Literary Magazine, one of Myanmar’s bi-lingual literary and arts platforms, both online and in print. Continuing her work in the literary community of Myanmar, she coordinated and hosted the Ingyin Literary Forum which focuses on the voices of women writers in South East Asia. Her works can be found in Still Water Magazine, Rough Cut Zine, and Frontier Magazine. Her first collection of fiction short stories will be published by Ethos Books, Singapore in 2019. Currently, she is studying Literary Studies and Sociology at Monash University in Melbourne, Australia.

Image Credit: Ye Aung Thu for AFP, from Getty Images