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

The Architecture of Erasure

To capture the imagination which the Act sets to project, it is our duty, then, to take time and ask ourselves what the nature of the polity it imagines would be. The Act provides a state that is inherently devoted to legibility. It assumes that citizens should be made intelligible to the state and, in a sense that is defined by the conceptual frame of the state; otherwise, they are not even recognized. This suggestion soaks in the bitter heritage of colonial jurisprudence, such as the Criminal Tribes Act of 1871, in which the insistence of identification and control was used to regulate those communities that were not living in a preferred social structure by the state. Where the colonial regime was inclined to criminalisation, this Act aims to petrify and freeze the identities of those living in hard and state-authorised classifications. It does not rest happy with mere registration but instead makes the communities to be immobilized, legible, and administratively expedient. In this model, the transgender individual is no longer seen as a subject, but as an object to be categorized.

The colonial project required the naming, monitoring, and controlling of the “deviant” communities. Similarly, the Act also mandates that transgender identities be referred to, monitored, and regulated not because they are criminal, but because they are considered to be incomprehensible by a bureaucracy that insists on stasis in the entities which, by definition, are dynamic. The non-conforming transgender, the trans man, the non-binary, the self-identified as opposed to culturally inherited or medically valid, turns out not only to go unnoticed, but to be inconceivable. By a law that itself precludes the state’s recognition, the state has made them invisible. This is the more radical legacy that the Act suggests: a bureaucratic desire to streamline, define, and repair instead of protecting the marginalised communities.

But the machinery of legibility does not operate blindly; it has always known exactly which identities it intends to find. The logic of suspicion is also based on a long historical formation of engagement of the Indian state with gender and sexual minorities. The selectivity of the identities that the state has chosen to make legible in ways that are acceptable and ideologically advantageous has produced a form of recognition, which privileges certain transgender subjectivities, in particular, or those that have been given a socio-cultural legitimacy, like those of hijra individuals, and disenfranchises others, particularly those of self-perception or sexuality.

As a result, a fantasticalised ideal of a “good” queer subject is created: a culturally assimilable, non-destabilising of the heteronormative order, open to incorporation into a discourse of tradition or national identity. At the same time, the identities, which do not fit into this system, such as trans men, non-binary people, or individuals whose identities are expressed with the help of autonomy instead of convention, become incoherent or suspicious. This logic is not simply reproduced in the current Act, but heightened. The system does not merely favor certain identities but instead abolishes all other identities. The "good" transgender subject is no longer just culturally acceptable; it is administratively produced, medically certified, and ideologically contained.

The Way Forward: Beyond Critique

But all the criticism, as much as it is due, is not enough. In order to merely demolish the structures without proposing a viable pattern of constructing them would put the field at risk of being exposed to more and more phases of hostility. In case the Act does face opposition, as it should, it must be able to go beyond reference to the 2019 Act and come up with a positive conceptualization of transgender recognition befitting the Indian context. The theory of self-determination expressed by NALSA still remains an unassailable pillar: people must not be forced to take medical tests, mandatory testing by the state or to jump through the hoops of obstinate bureaucracies just to be given their legal identity. This standard is the floor of the constitution, but it is not supposed to act as the ceiling.

Nevertheless, the government's fraud argument, despite its own disingenuous use of language, brings up a substantive policy question that cannot be overlooked: how can a state check eligibility to receive welfare benefits without itself becoming an adjudicator of identity? The solution lies in a Third Way system that puts the question of what a person is and the question of what they are entitled to apart.

This framework would be based on three pillars. First, self-declaration ought to be the only source of identity recognition in full conformity with NALSA. The state would only register, not approve. Second, specific anti-fraud systems would be based on benefits and not on identity. Assuming that the fear is that one may falsely claim to be transgender to receive reservations or welfare, the correct answer is not to medicalise identity, but to intensify the procedure of eligibility to receive those particular benefits, such as with income certificates, domicile, or audit mechanisms that do not require an individual to demonstrate to a medical board his or her identity. Third, there should be strong data protection measures for the personal information that the state inevitably gathers. In case medical data should be reported (but is by no means certain that it should), the regulations that regulate its retention, access, and use should be made by Parliament rather than delegated to executive will, and should adhere to the privacy framework which has been established in Puttaswamy.

The essence of this so-called Third Way must be defined in strict terms. It is not a middle way between rival policy solutions or a compromise that needs to be compromised with the current regime; it requires a radical reform of the nexus between the state and its people, an architecture whose structure is based on constitutional trust, on recognition, on dignity, instead of institutional sceptics. The voluntary internalisation of such a paradigm appears structurally improbable in a polity whose historical governance has been predicated upon the suppression of marginalised communities through coercive bureaucratic homogenisation. Its fulfillment, consequently, is pledged on extended constitutional opposition and democratic insistence. It is not an appeal to idealism but a dogmatic assertion: assurances of basic rights need no lesser grounding.

What has already become evident by a closer examination of the text is that this Act is not accidental in its architecture and the intent, as even its opening pages speak for themselves that protection was never the Act’s aim. It is a statute meant to be convenient to the state, to its need to have neatly sorted categories, to fear selfhood, to prefer subjects that may be tallied, classified, and managed. The issue facing India is whether it will embrace this vision or insist on a law that accepts transgender persons as not a problem to be addressed, but as citizens who are to be recognised.

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