Policing the Self: A Law That Subjects Transgender Identity to Certification and Surveillance

The Transgender Persons (Protection of Rights) Amendment Act, 2026, is being projected as a measure for protection and clarity. In substance, however, it does something more sinister: it recasts transgender existence as a matter to be policed, certified, monitored, and ideologically contained. It does not proceed from the premise that gender identity is a domain of personal autonomy protected by the Constitution. Rather, it proceeds from suspicion. It imagines the transgender person not as a rights-bearing citizen but as a problematic social figure requiring state management. In this sense, the Act is not merely flawed legislation. It is the legal expression of a deeper political morality—one that is profoundly consonant with the Hindutva project of enforcing a disciplined social order built around fixed identities, patriarchal family norms, and suspicion of all forms of embodied difference.

The 2026 amendment must be read alongside the already discredited architecture of the 2019 Act. The original Act had been widely criticised for violating the very principles the Supreme Court had affirmed in National Legal Services Authority v. Union of India (NALSA), where the Court held that gender identity is rooted in self-identification and is inseparable from dignity, liberty, and equality. The amendment does not cure that foundational defect. If anything, it sharpens it. It tightens the state’s hold over identity and, in doing so, reveals the ideological discomfort that the present regime has with the transgender concept itself.

What is especially alarming is the amendment’s move to remove the Act’s broader definition of “transgender person” and instead list categories of persons included, while explicitly stating that the law does not include, and never included, persons with “different sexual orientations and self-perceived sexual identities.” PRS Legislative Research notes this as one of the Act’s key changes. The same summary also notes that the Act makes a revised certificate mandatory after surgery and requires the medical institution to furnish information about such surgery to the District Magistrate. This is not mere drafting. It is an attempt to redraw the field of legitimate gender identity in a way that makes it narrower, more surveillable, and more governable.

At the heart of the constitutional problem lies a very simple question: who owns identity? In a constitutional democracy, identity belongs to the person. In this Act, identity belongs to the state.

The core vice of the amendment is that it remains fundamentally incompatible with the doctrine of self-identification laid down by the Supreme Court. In NALSA, the Court recognised the right of persons to determine their gender identity as male, female, or third gender, and treated that right as intrinsic to dignity and freedom. Later constitutional developments only strengthened this logic. In Puttaswamy, privacy was recognised as including decisional autonomy and bodily integrity; in Navtej Johar, the Court held that identity, orientation, dignity and intimacy cannot be subordinated to majoritarian morality. The Court also made clear that constitutional rights cannot depend on social approval, and that constitutional morality must prevail over popular or sectarian moral codes.

The amendment stands against this entire constitutional trajectory. It does so first by preserving the logic that identity must be mediated by official certification, and second by deepening the state’s role in tracking bodily transition. Even before this amendment, the 2019 framework had been criticised for forcing transgender persons into a bureaucratic recognition regime under the District Magistrate. The draft rules had gone so far as to require a psychologist’s report and residency proof, until criticism forced some softening. PRS had pointed out that such requirements were incompatible with self-perceived identity and especially burdensome for a community often facing homelessness, ostracism and unstable residence.

The amendment intensifies the same logic by making revised certification mandatory after surgery and by requiring the medical institution to report the surgery to the District Magistrate. That move is constitutionally indefensible. It converts one of the most intimate dimensions of personhood into a matter of administrative reporting. It effectively deputises hospitals into a surveillance chain. It assumes that the state has a legitimate interest in being notified when a person’s body changes in ways relevant to their gender identity. That is not protection. That is biopolitical supervision.

No comparable burden is imposed on cisgender citizens to establish or continually validate the coherence between their body, identity and state records. The transgender citizen alone is made to pass through documentary and institutional checkpoints. That asymmetry offends Article 14 not only because it is unequal, but because it is irrationally unequal. It burdens a vulnerable class precisely in the domain where the Constitution demands maximum protection.

The amendment is equally vulnerable under Article 21. Gender identity is not an external administrative category like land ownership or vehicle registration. It is bound up with selfhood, bodily autonomy, dignity, privacy, and the right to live without humiliation. A law that allows the state to mediate or monitor this sphere invades the core zone of decisional autonomy that the Court has repeatedly treated as constitutionally sacrosanct. And insofar as gender expression is a mode of appearing in the world—through clothing, naming, embodiment, presentation—it also implicates Article 19(1)(a), the freedom of expression. A person’s gender is not simply what the state records; it is also what the person lives.

The most revealing ideological feature of the Act, however, is its anxiety over “self-perceived sexual identities.” That phrase is not accidental. It is the language of exclusion. It suggests that the state wishes to draw a hard line between identities it is prepared to administratively recognise and those it considers too fluid, too subjective, too destabilising to social order. This is precisely the language through which conservative power reacts to gender plurality: by conceding only those forms of difference that can be fixed, named, and contained.

The deeper problem with the Act is that it cannot be adequately understood as a technocratic failure. It must be read ideologically. The current regime’s discomfort with transgender and queer existence is not merely moral conservatism in the generic sense; it is specifically tied to the Hindutva project of social ordering.

Hindutva likes to boast that “Indian civilisation” has always accommodated gender diversity. It occasionally invokes Ardhanarishvara, Shikhandi, or Hijra presence in premodern traditions to claim a tolerant indigenous heritage. But this is a deeply selective and opportunistic appropriation. The same ideological universe that romanticises symbolic ambiguity in mythology is hostile to actual living persons who destabilise the social architecture of gender, sexuality, kinship, and family. Mythic exception is tolerated; social transformation is not.

This is because Hindutva is not, at bottom, a theology. It is a project of social discipline. It seeks to organise society through a tightly controlled moral order: masculine authority, feminine domesticity, reproductive family, caste-regulated community, and obedient citizenship. In that order, the transgender person is troublesome not merely because they are a minority, but because they expose the instability of categories that Hindutva needs to appear natural—man, woman, family, purity, inheritance, and social role.

The Act bears the marks of this ideological discomfort everywhere. Its insistence on official classification, its urge to exclude identities that are “self-perceived”, and its readiness to monitor bodily transition all stem from a desire to domesticate what it cannot celebrate. The transgender person is allowed to exist only as an administratively recognisable type, not as an autonomous self who can unsettle the binary grammar of the nation.

The amendment’s new offences also reveal this bias. It introduces harsh punishments for kidnapping or causing grievous hurt to force a person to assume a transgender identity, and for forcing a person to present as transgender and engage in begging, servitude or bonded labour. PRS records these additions as key features of the Act. On the face of it, these provisions appear protective. But they are framed in a way that encodes a specific moral panic: that transgender identity is something into which “normal” persons may be pushed, lured, or converted.

Of course, coercion and trafficking must be punished. But that is already a matter for criminal law. The ideological work these provisions do is more subtle. They frame transgender sociality as a zone of suspicion. They resonate with the familiar majoritarian fantasy that vulnerable youth must be protected from corrupting identities, deviant influences, or predatory subcultures. This is exactly how the Right speaks about Muslims, Leftists, feminists, queer people, and now, gender-variant communities: not as citizens, but as threats to social reproduction.

The repeated linkage of transgender presentation with begging and servitude also reflects a refusal to confront the actual political economy of transgender marginality. Hijra and other trans communities did not end up in informal, stigmatised livelihoods because of cultural perversity. They did so because caste society, the labour market, the school system, the family and the police pushed them there. But the Hindutva state has no interest in acknowledging structural exclusion. It prefers moral regulation to social justice.

Protection without Justice

The gravest indictment of the Act is that, even as it expands regulation, it refuses structural justice. Like the 2019 Act, it offers no enforceable guarantees of livelihood, housing, healthcare, education, social security, or reservations, despite NALSA’s clear direction that transgender persons be treated as socially and educationally backward classes for affirmative action. This is typical of the present regime: rights language without redistributive commitment. The state is willing to register, monitor, and discipline the oppressed, but not to transform their material conditions.

The constitutional vocabulary relevant here is not “verification”, “administrative clarity”, or “public order”, but dignity, autonomy, equality, and fraternity. The Constitution does not ask whether a minority identity is comfortable for the majority; it asks whether the state can justify intruding into the intimate domain of personhood. On that test, this amendment fails badly. A state that cannot tolerate self-defined gender identity without certification and surveillance is a state that no longer trusts the citizen as a moral agent. It wants legibility, not liberty; categorisation, not freedom.

A democratic law on transgender rights would begin by trusting the person—recognising self-identification without bureaucratic mediation, delinking welfare from surveillance, and guaranteeing affirmative action, healthcare, housing, education, and protection from violence. Above all, it would treat the issue not as the management of a deviant minority, but as the extension of equal citizenship to those historically humiliated and excluded.

The Act must therefore be opposed not simply because it is inadequate, but because it is constitutionally regressive and ideologically authoritarian. It violates the spirit of the Supreme Court’s jurisprudence on identity and autonomy, imports into law the Hindutva suspicion of embodied plurality, and mistakes control for protection. The Act does not emancipate; it classifies, disciplines, and contains.

(Views expressed are personal)

Anand Teltumbde is an Indian scholar, writer and human rights activist

This article appeared in Outlook’s April 21 issue, 'I ran to bomb Iran, but instead I ran' which looked at the US-Israel war on Iran and what it means for families living through it and what is at stake in the states going to elections in the first phase