The Architecture of Erasure: How India’s New Transgender Act Builds What It Claims to Dismantle (Part I)

India’s Transgender Persons (Protection of Rights) Amendment Act, 2026 appears to have absolutely neglected the interests of the people that it is supposedly made for. The Act’s own Statement of Objects and Reasons declares that the law “was and is not to protect each and every class of persons with various gender identities.”

An Act, whose title contains the phrase Protection of Rights, announces in its own explanatory text the categories of people it has chosen not to protect. This is not careless drafting. It is not a legal technicality. It is the government stating, in clear words, the purpose that it intends to pursue. Everything else in the Act is simply the mechanism for carrying that purpose out. The provisions in the Act do not merely undo a decade of progress. They built something new: a legal regime that is designed to be hostile to transgender persons. And this is done while remaining under the cover of a word the Act has already hollowed out: protection.

The Road that Led Here

The NALSA judgement had three important effects: first, it recognised transgender persons as a third gender, second, it affirmed that self-determination of identity is a fundamental right, and most importantly, it held that no person should be required to undergo surgery, medical examination, or state approval to have their gender identity recognised. The Court categorically held that identity flows from within, and as such, the state’s job is to acknowledge it, not adjudicate it.

The Transgender Persons (Protection of Rights) Act of 2019 was enacted in pursuance of this judgement. While the Act itself is imperfect and contested, it still reflects the spirit of NALSA by defining ‘transgender person’ broadly, and guaranteeing the right to self-perceived gender identity. The Act effectively crushes the spirit.

What the Act Actually Does

The Act seeks to remove the existing definition of a transgender person and replace it with a closed list. In their place, recognition is extended only to those with specific socio-cultural identities (kinner, hijra, aravani, jogta, or eunuch) or those born with medically recognised intersex variations. A new category has been added, which is persons who were forced to assume a transgender identity through mutilation or coercion. 

This implies that under the new Act, the only people who qualify as transgender, outside the socio-cultural categories of hijra, kinnar, aravani, and jogta, are people who were made transgender against their will or through medical force. Voluntary, self-determined transgender identity is excluded.

This form of transmedicalism is dangerous as it fails to recognise gender identity as a matter of personal autonomy and dignity, and instead reduces it to a mere clinical category. What it basically means is that you do not count unless something was done to you. The law imagines transgender-ness as something that happens to a person and not something a person is. This is indicative of the position of the government about what the nature of identity is, and that has been quietly included in the statute. 

So, firstly, by excluding voluntary and self-determined transgender identity, a large chunk of people are excluded from the outset. If, then, by any chance a person does qualify in the narrowed down definition that has been provided, they will have to cross five separate institutional hurdles just to prove their identity. What the government conveniently overlooks in this is that the infrastructure for it simply does not exist: plastic surgeons and endocrinologists are scarce in district government hospitals across most of India. Thus, the people who have the most to lose from being legally invisible, i.e., the poor, the rural, and the undocumented, are the ones who are restricted from rights and rescinded from protection.

Further, retrospective application of the law means that people who fought court battles to obtain their certificates, sometimes over years, sometimes at enormous personal cost, may find those victories to have been for nothing.

Reading of the Text

i. Protecting Communities by Destroying their Families: The Act’s deepest internal contradiction lies in Section 18. Kidnapping a child with the intent to compel them to assume a transgender identity now carries mandatory life imprisonment. Forcing a person into begging or servitude in a transgender identity draws five to fourteen years. Prima facie, this sounds like it is meant for affording protection. Except for the gharana, the centuries-old kinship network through which gender-diverse people who have been expelled from their natal homes find community, elders, shelter, and livelihood, operates precisely by taking in young people whom their families have abandoned or abused. The law that places hijra identities in its definition simultaneously places hijra kinship structures in its criminal provisions.

ii. The Sentencing Inversion- Harm to Trans People is Worth Less than Harm to the Idea of Being Trans: The Act, under Section 18, introduces life imprisonment for forcing someone to assume a transgender identity. It retains, unchanged, the existing and constitutionally challenged maximum punishment of two years for physically, sexually, or economically abusing an actual transgender person. The Act, even after having identified that the existing penal provision addresses only general wrongs and prescribes a maximum of two years, which is a penalty that is inadequate for offences of “exceptional gravity”, applies that insight only to the new offences involving becoming transgender. For the documented, ongoing, everyday violence committed against transgender people, violence the NALSA judgment explicitly acknowledged and demanded redress for, the two-year maximum stands. In the Act’s implicit moral arithmetic, not only does a crime deserve a lesser magnitude of punishment when it is committed against a transgender person, but the act of being made transgender is also a greater wrong than the act of harming a transgender person. 

iii. The Progressive Clause that only Works for People Act has already been Eliminated: A new provision allows transgender persons to change their first name in birth certificates and other official documents based on their identity certificate under Section 6 of the Act. This seems to be based on good faith, but the provision applies only to persons who hold a valid identity certificate under the new definition. To get that certificate, you must first qualify as transgender under the Act’s redefined, narrowed, medically supervised framework. You must then survive the medical board, the District Magistrate, and the possible referral to further unnamed medical experts. For trans men, who are not listed anywhere in the Act, for non-binary people, for genderqueer individuals, and for anyone whose identity is self-perceived rather than biologically certified or traditionally categorized, the first name change provision is entirely inaccessible, because they cannot obtain the certificate on which it depends.

iv. Surgery Used to Be a Gateway. Now It's a Trap: Under the 2019 Act, a transgender person who underwent gender reassignment surgery had the option of obtaining a revised identity certificate reflecting a binary male or female gender. The 2026 Act converts that choice into a mandate by substituting the words “such person may” with the words “such person shall” under Section 7. It mandates that a person who has undergone surgery must obtain a revised certificate. The only thing the revised certificate available reflects is whether the person is a binary male or female marker. Hence, there is no longer a transgender identity document available post-surgery.  The Act also omits sub-section (3) of the 2019 Act and its proviso, which explicitly protected transgender identity and its associated rights even after the obtainment of a binary certificate. By so doing, it repeals the legal protection that used to enable the two documents to exist in validity at the same time.

As a result, in the framework of the Act, trans identity is not understood as a permanent state of being but as a temporary administrative intermediate. The law virtually makes it an interim buffer between the binary categories. When the surgical intervention has been done, the buffer no longer exists, and the person is assigned to either the male or female category. Therefore, the transgender designation is only a procedural intermediary that is to be stored after that. Accordingly, the state does not recognize transgender identity as a category; it is a process to be controlled by administrative mechanisms.

v. The Executive Gets Blank-Cheque Authority Over Surveillance Architecture: The Act authorizes the Central Government to make rules regarding the form and manner in which medical institutions have to report the details of gender reassignment surgeries to the District Magistrate under the newly inserted sub-section 1A to Section 7 of the 2019 Act. It is effectively handing over the power to design the full architecture of a state surveillance system around gender transitions to the executive. The Act authorises mandatory medical reporting to a government official but defers all relevant questions, including the scope, retention, and use of that data, to the rules made by the executive.

The right to privacy, which the Supreme Court upheld as a fundamental right in Puttaswamy v. Union of India (2017), is being completely overridden here. The right to privacy, and in this case, informational privacy, is an established norm; however, the Act under consideration creates a privacy regime of the most personal choice that may be made by a person and offers very little parliamentary control over it.

vi. The Welfare Fraud Argument Reveals What the Government Actually Thinks Identity is: The State supports their reduction of the definition of transgender by claiming that the previous definition was too broad and vague, and thus hindered the distribution of welfare benefits among the beneficiaries. It has also been stated that some actors pretend to be transgender to obtain state resources fraudulently, which is worth considering because it is not only logically unsustainable but also philosophically unsustainable.

Should the problem indeed be benefit fraud, the corresponding legal solution would be to ensure eligibility controls like means testing, documentation controls, or audit controls. Countries, such as Argentina, Malta, Germany, and Canada, that have larger welfare systems than India have managed to achieve targeted benefit provision without redefining the entitlement cohort of those who deserve human dignity, leaving one wondering why similar actions cannot be taken in India.

Given that Argentina has maintained such a framework for more than a decade without recorded evidence of fraud, and that Canada administers a comparable self-declaratory system across a geographically expansive and demographically plural society, the burden of proof against its feasibility in the Indian context is significantly weakened. What remains at issue is not whether such a system is feasible, but the normative question of whether the Indian state is institutionally and ideologically disposed to recognise its citizens as autonomous arbiters of their own identities.

Implicitly, the government is equating the question of who is transgender to the question of who is deserving of benefits, thus turning an issue of personhood into a non-neutral resource-allocation issue. Within this paradigm, transgender identity is addressed as a strategically claimed identity, which can be used to commit fraud, and thus seeks to refute the fact that transgender identity is a valid state of being that precedes and surpasses any particular right. It pathologizes self-identification not through labelling it as pathological but through coding the approach as suspicious.

This framing of a ‘fraud’ is more pernicious than an overt attack on transgender identity because an overt attack can be challenged directly, and, therefore, it is easier to fight it. This then falls on the transgender community to prove the authenticity of their identity, and makes it imperative that they prove that their identity is not a performance to acquire other objectives, and also to appear before a medical board that will decide whether their self-conception meets diagnostic criteria. So, although the state has not made any direct statement that transgender people lie, it has created a mechanism based on the assumption that they might be.

Taken together, these provisions are not a collection of failures or a sign of drafting imprecision. They are a design.

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This article has been authored by Aditi Anand and Anuja Chatterjee, students at Chanakya National Law University, Patna. It is a part of the RSRR's Rolling Blog Series.