By Oorja Gonepavaram
At the heart of every struggle waged by marginalised communities lies a basic demand: the right to define one’s own identity, to claim dignity, and to resist hierarchies imposed from above. From battles against caste oppression to movements for gender justice, this principle of self-determination is what anchors the pursuit of justice everywhere.
India’s new Transgender Persons (Protection of Rights) Act 2026 challenges this very foundation by restricting the right to self-identify one’s gender, replacing it with a model where identity must be proven, verified and authorised by the state.
This shift is not merely administrative; it has far-reaching implications for autonomy, dignity and the future of rights-based governance in India – not just for transgender people but for everyone.
The Transgender Persons (Protection of Rights) Amendment Bill was hastily passed by voice vote in Lok Sabha on 24 March 2026. It was given assent by Droupadi Murmu, the President of India, today, on 31 March 2026, making it the law of the land.
The bill sought to amend the Transgender Persons (Protection of Rights) Act 2019, which was originally enacted to provide legal recognition, rights and welfare protections for transgender persons in India.
Despite the government’s claims that the amendment will strengthen protections for transgender persons, it has been met with strong opposition from transgender rights groups and civil-society organisations.
Which should make us wonder, who is this new law for? What is being protected?
Self-determination and the right to dignity
The most significant change introduced by this Act is the removal of the principle of self-determination of gender.
This marks a direct departure from the NALSA v. Union of India (2014) judgement, a landmark ruling in which the Supreme Court affirmed the fundamental right of individuals to self-identify their gender. The 2019 Act had upheld this principle by allowing transgender persons to obtain a ‘Certificate of Identity’ from the District Magistrate based on self-declaration, without requiring medical or psychological verification.
The new Act, however, narrows the category of those eligible for protection to specific culturally recognised identities such as kinnar, hijra, aravani, and jogta, along with persons with intersex variations and those forcibly compelled to identify as transgender.
In doing so, it excludes trans-men, trans-women, and genderqueer persons, all of whom were explicitly included under the 2019 framework.
This shift effectively moves recognition away from an individual’s right to self-identify, toward a state-controlled and culturally narrow understanding of gender identity.
The power to define one’s own existence is relocated from the person to the bureaucracy.
The removal of self-determination has far-reaching constitutional and social implications. Firstly, it excludes a significant portion of the transgender community from accessing legal protections and welfare entitlements, pushing already vulnerable lives further to the margins.
More fundamentally, it undermines the right to dignity. Article 21 of the Indian Constitution guarantees the right to life and personal liberty, which the Supreme Court has consistently interpreted to include the right to live with dignity.
This right is not only ‘negative’, which protects individuals from arbitrary state action, but also ‘positive’, requiring the state to ensure access to basic conditions necessary for a dignified life, such as food, shelter, healthcare and education.
The new amendment risks violating both these dimensions. Gender – and the ability to self-identify it – is fundamental to one’s right to dignity.
Gender versus sex
While sex is typically understood in biological terms, such as chromosomes, hormones and reproductive organs, gender is a social and cultural construct that encompasses a wide spectrum of identities beyond the male–female binary.
Over time and after several waves of gender activism, progressive societies have moved from viewing gender as fixed and binary to recognising it as fluid, expansive and socially contingent.
Historically, however, gender has been closely tied to sex, and because sex itself has been narrowly understood as binary, gender has also been constructed within this binary framework. This binary conception is not neutral; it works to uphold pro-fertility norms rooted in conditions of low existential security and high religiosity.
When reproduction of the labour force and the maintenance of stable kinship structures are the main priorities, it leads to heteronormative marital and reproductive expectations. In simple terms, the more material concerns the nation has, the more it will impose rigid structures of gender, sex and sexuality to ensure order and reproduction of the workforce.
Gender, in this sense, functions as a regulatory tool, ensuring that people conform to socially prescribed roles that keep heterosexist social orders going.
In her book Toward a Feminist Theory of the State, Catharine MacKinnon places gender within systems of power. For her, gender is an “artificial” construct shaped by patriarchal institutions to sustain hierarchy. It is presented as “natural” through biological claims that position women as inherently inferior, weaker, and valuable primarily for reproduction.
Gender theorist and philosopher Judith Butler extends this by moving beyond the binary and conceptualising gender as performative – not something one is, but something one does. Gender identity, they note, is constituted through repeated social practices of language, gestures, attire and other forms of expression.
These new understandings of identity have enabled greater recognition of non-binary, transgender and transsexual experiences. If gender is produced through social practice rather than fixed by biology, it becomes possible to question what happens when individuals resist, reinterpret or move beyond the norms assigned to them.
Let’s face it: gender is inescapable in a gendered society.
We are constantly navigating, performing or resisting gendered expectations, but we are never outside of them. It is precisely for this reason that the right to self-determination of one’s gender becomes central to the right to dignity.
Self-determination enables individuals to define their own identities, assert agency over their lives, and make meaningful choices about how they exist in the world. Denying this right does not merely restrict expression; it undermines a person’s autonomy and reduces their capacity to be recognised as a thinking, self-defining individual.
Denying any group the right to self-determine – including restricting the ability to define one’s gender – opens the door for similar restrictions on other marginalised groups and limits broader possibilities for liberation and social justice.
The myth of misuse
Proponents of this bill argue that narrower categorisation is necessary to prevent individuals from falsely claiming a transgender identity in order to access welfare benefits. This reasoning is flawed and is not borne out by evidence.
On the contrary, available data suggests significant under-enrolment rather than over-claiming. Since the introduction of the National Portal for Transgender Persons, only about 30,000 identity certificates have been issued, compared to the 2011 Census estimate of approximately 490,000 transgender persons in India, which is itself widely recognised as an undercount.
Further, even among those eligible, access to welfare remains severely limited. Parliamentary data shows that in several states, there have been no transgender beneficiaries under the PMAY housing scheme across multiple financial years.
Similarly, under the SMILE social-justice initiative, of the ₹365 crore allocated for transgender welfare between 2021 and 2026, less than ₹7 crore had been utilised as of April 2025. These figures point not to leakage or misuse, but to systemic underreach and administrative failure.
Progress for the transgender community in India has often been symbolic rather than material.
In a context where demands such as horizontal reservations remain unmet, such claims of ‘misuse’ divert attention from the state’s own failure to ensure meaningful access to rights and welfare.
The world over, transpersons are at significantly higher risk of violence, discrimination and exclusion, including from family members, intimate partners, and medico-legal institutions. The recent global surge in transphobic legislation, despite transgender people constituting a very small proportion of the population, further underscores the politicised marginalisation of this community.
There is no rational cost–benefit basis for an individual to falsely claim a transgender identity for access to limited welfare benefits, given the severe social, economic and psychological costs associated with being transgender in a hostile environment. In fact, most transpeople experience high levels of psychological distress and suicidal ideation prior to transitioning.
Consequently, gender-affirming care is widely recognised as life-saving. A 2025 study of 842 transgender individuals conducted over three and a half years at the Government Rajaji Hospital in Madurai found that access to gender-affirming hormone therapy and surgical interventions significantly improved psychological wellbeing and reduced depression among participants.
By narrowing eligibility and undermining self-identification, the bill risks restricting access to such essential care.
Medicalisation of gender
Worse, this bill takes a regressive step by re-establishing the medicalisation of gender through the mandatory involvement of a designated medical board in the identity verification process.
Medicalisation refers to the social process by which non-medical human experiences – such as behaviours, identities or life stages – are redefined as medical conditions requiring diagnosis and intervention. In this context, gender identity, which is social and self-determined, is reduced to a category that must be validated through medical scrutiny.
Even under previous frameworks, transgender individuals were required to demonstrate gender dysphoria and obtain medical approval to access gender-affirming care. The bill deepens this dependency by positioning medical authorities as gatekeepers not just of care, but of identity itself.
This will mean that the identities of a vast majority of transgender persons, including those who do not seek or cannot access medical transition, are rendered invisible or invalid.
It reflects a misunderstanding of gender as something innate and biologically verifiable, rather than socially constructed and performed.
Mandatory medical verification exposes individuals to invasive procedures, heightened surveillance and potential abuse within systems that are already inadequately equipped to protect them.
Transgender persons in India already face disproportionate risks of sexual violence and institutional discrimination – they often don’t have the legal protections given to cisgender people. Forcing them to undergo medical inspection increases vulnerability rather than protection.
Identity control
The part that should alert all genders is that this bill also adds additional layers of bureaucracy, effectively turning identity into something that must be proven, certified and authorised.
This expansion of state control is not isolated. The Indian state has repeatedly demonstrated an insistence on documentary proof as a condition for recognition and rights. This was evident in the implementation of the Citizenship Amendment Act (CAA) and the National Register of Citizens (NRC), where many – disproportionately Muslim individuals – were required to produce documentation to prove their belonging.
Similarly, access to caste-based reservations often hinges on the ability to furnish official proof of identity. In each of these cases, lived reality is made secondary to state validation. Gender, under this bill, becomes another site of such bureaucratic control. The question of identity shifts from ‘who you are’ to ‘who you can prove you are’.
Why is gender, in particular, so heavily scrutinised?
Gender is central to how individuals locate themselves in the world – it often serves as a primary axis of identity and social positioning. When these categories are destabilised – as they are by transgender and non-binary identities – it challenges deeply internalised norms about selfhood, relationships and social order.
For instance, if being a ‘woman’ means being able to ‘give birth’, the existence of trans-men who can give birth disrupts this assumption, exposing its limitations.
Self-identification, therefore, does not merely expand categories; it unsettles the perceived stability of gender itself. For many, adherence to gender norms provides not only social recognition but also access to heteropatriarchal privilege and protection. Any deviation from these norms, whether in identity or expression, is thus perceived as a threat.
However, this perceived threat is not grounded in material harm; one person’s gender identity or expression does not diminish another’s rights or existence. So why this strict policing, verification and surveillance?
Faltering democratic processes
One of the most concerning aspects of this bill is the manner in which it has been passed, effectively undermining democratic processes and norms. It raises serious constitutional concerns by overturning the spirit, if not the letter, of the NALSA v. Union of India (2014) judgement, which affirmed the right to self-identify one’s gender as intrinsic to dignity and personal liberty.
Procedurally, it was enacted without meaningful consultation or consensus. Members of the Transgender Welfare Board were not involved in its drafting, and sustained opposition from civil society organisations, queer and trans communities, and opposition parties appears to have been disregarded.
The speed of its passage further raises questions. The amendment was introduced and passed by both the Lok Sabha and Rajya Sabha in under 12 days, and assented a week after, with little room for deliberation or public engagement. This urgency remains unexplained.
There is speculation that the timing may be linked to the upcoming Census of India, scheduled to begin in April 2026. By narrowing the legal recognition of transgender identities, the Act risks excluding trans-men, trans-women, and genderqueer persons from official data.
Such statistical erasure has long-term consequences.
What is not counted is easier to ignore, and what is ignored becomes easier to exclude from policy, welfare and rights protections.
The Act also introduces stricter penalties against those who “force” individuals to identify or present as transgender, including in contexts such as begging, bonded labour or servitude. At face value, this appears to strengthen protections. However, a closer reading reveals how the language of coercion may be misapplied in ways that harm the very communities it claims to protect.
Trans community structures, such as deras and gharanas, often function as critical support systems for individuals who have been rejected by their families and excluded from formal institutions. Many transgender persons rely on these networks for housing, livelihood and access to gender-affirming care. For many of them, begging and sex work are often survival strategies rather than choices.
The new Act’s broadly framed and ambiguous provisions around “forcing” identity risk criminalising these community-based forms of care and solidarity. Support networks and service providers may be recast as sites of coercion, exposing already vulnerable individuals and their caregivers to legal scrutiny.
This also has implications for access to care. Medical and mental-health practitioners, already operating within an uncertain and stigmatised framework, may become more hesitant to provide gender-affirming services for fear of legal repercussions.
Similarly, the invocation of “protecting children” risks framing supportive parents or guardians as coercive, thereby restricting transgender minors from accessing potentially life-saving care.
Further, the severity of punishment for allegedly “forcing” transgender identification appears disproportionate when compared to existing penalties for violence, including physical, sexual and economic abuse, faced by transgender persons.
This imbalance reflects a troubling prioritisation – a state that is more interested in policing identity than addressing actual harm.
A step back
Rather than expanding rights and protections, the Act centralises control, narrows recognition and introduces new avenues for surveillance and criminalisation. It is regressive, undemocratic and expands the control and authority of the Indian state over individual identity.
It raises a fundamental question: if transgender individuals constitute such a small proportion of the population, why are they so persistently subjected to scrutiny, regulation and control?
The answer lies in the central role that the gender binary plays in maintaining heteropatriarchal order. The state, in many ways, mirrors this structure – consolidating authority by limiting autonomy, and regulating identities to ensure conformity and subservience.
If you believe this does not concern you, or do not feel called to action, it is worth recalling the words of Martin Niemöller:
First they came for the Communists
Martin Niemöller
And I did not speak out
Because I was not a Communist.
Then they came for the Socialists
And I did not speak out
Because I was not a Socialist.
Then they came for the trade unionists
And I did not speak out
Because I was not a trade unionist.
Then they came for the Jews
And I did not speak out
Because I was not a Jew.
Then they came for me
And there was no one left
To speak out for me.
An attack on the rights and dignity of one group is an attack on the foundations of freedom itself. When the state claims the authority to define who a person is, it places everyone at risk, because the boundary of who can be regulated, excluded or erased can – and will – always shift, depending on who is in power.
The question is not whether this affects us; it is when.
Oorja Gonepavaram is a researcher, developmental professional and queerfeminist activist with an MSc in sociology from the University of Oxford. You can find her on LinkedIn.
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