Summary of this article
Inclusion in rights and surveillance of bodies have always been twin agendas that can be reshaped, withdrawn, and mobilised to criminalise communities even while promising them identification.
The 2026 Trans Act Amendment Bill is contiguous with colonial-era cultural fear around young boys being allegedly abducted and forcibly castrated by ‘Hijra gangs,’ reiterating historical purity norms.
The provisions raise serious concerns about a potential digital architecture of surveillance for trans people, in how healthcare data is stored, shared, and potentially monetised by the Indian state and corporate actors.
The Protection of Transgender Persons Amendment Bill of 2026 was introduced by the Ministry of Social Justice and Education (MoSJE) to “protect only those who face severe social exclusion due to biological reasons for no fault of their own and no choice of their own.” In effect, the bill makes the category of transgender contingent upon “biology” and confines it to ‘socio-cultural categories,’ while also expanding the penal provisions of the Act in its bid to implement the protectionist vision of the Act for the ‘genuine[[ly] oppressed’ trans person.
The narrow definition and exclusion of the category of “self-identification” as a marker of transness is a means to undertake targeted surveillance and criminalisation through the denial of rights of transgender communities.
Resonance of the Criminal Tribes Act, 1871
The 1871 Criminal Tribes Act evinced a deep fear around the “eunuch problem.” It was an attempted embodiment of “a legislation to prevent the notoriously common practice of making eunuchs.” Through the supposed passing down of ‘castration’ procedures, it was feared that the Hijra community made “eunuchs” out of boys, almost as if to suggest that transness is transferable through physical proximity. In one recorded case, a boy named Moolah, aged 12 years and “not emasculated” was found to be living with a “eunuch.” Despite the absence of any legal proof or evidence, Moolah was assumed to be subject to unnatural sex and sent to a reformatory.
Now, the 2026 Bill states “[f]orcing a person to present as a transgender person” is punishable with hefty imprisonment sentences and fines – reiterating historical purity norms and naturalising Hijra-trans communities as legitimate biological subjects of surveillance.
More so, a central category in the 2026 Bill is that of “a person who is forced to assume a transgender identity by mutilation, emasculation, castration, surgical, chemical or hormonal procedures.” By linking transness always with coercion, the Bill is thus contiguous with colonial-era cultural panic around young boys being forcibly abducted and castrated by ‘Hijra gangs’ – tales which filled the pages of upper-caste-led vernacular newspapers and colonial ethnographic memos in the 19th century.
The 2026 Bill also narrows the definition of a transgender person to “a person with socio-cultural identity such as kinner, hijra, aravani, or jogta;” “eunuch;” “person with intersex variations;” or anyone presenting as trans through “force, allurement, inducement, deceit or undue influence” – in pursuit of eliminating those who are transgender by way of “self-perceived” identity. This proposed anatomical logic of transness is furthered by the now-mandated recommendation of a “Medical Board” (upon physical examination of a trans person) to the District Magistrate prior to issuance of a Transgender ID Card – creating infrastructures of humiliation that might allow for unchecked state-sponsored sexual violence. Taken together, all of this historically echoes the colonial “registers of eunuchs” that tracked Hijra communities’ genitalia – a centuries-old medicalised, phallic fixation on documenting surgeries and biodata as a means of degrading and controlling trans life.
Logical fallacies and Brahminical mythologies
Further, how would a transgender person from any of these communities even prove their belonging to a “socio-cultural” identity, as compared to self-identifying as trans? There is no such system specified, and most existing critiques of the Bill have yet to raise the question of what legal process stands to prove one’s “Hijraness.” The provision is vague and thus leaves assessment of all forms of transness, ‘socio-cultural’ and otherwise to the mercy of ‘arbitrary’ and ‘unfettered’ bureaucratic discretion. Upholding a false binary between kinner/hijra/aravani/jogta and ‘self-identified’ trans also overlooks the fact that “socio-cultural” groups and intergenerational trans kinship structures are themselves formed through self-identification (even while failing to name many such as Thirunangais, Nupi Maanbis, Khwaja Sirahs, all communities of trans men e.g. Nupi Maanbas and Thirunambis, as well as the many regional trans identities outside of the North Indian mainstream).
Ultimately, this once again cements the implicit assumption that such communities can only have arrived at their “socio-cultural” identity out of coercion or birth, never choice. In reality, the fact of ‘belonging’ to these identity groups cannot be simply understood as functional, coercive, happenstance, or categorical, in the way that the Bill insinuates. Rather, these identities must be situated within complex, relational, and intergenerational kinship structures. These structures have been historically essential for many trans people in the face of cis-society’s totalising violence and abandonment from natal family networks – even as they continue to be rightfully negotiated and challenged for the ways in which trans kinship formations, too, often preserve hierarchy, caste apartheid, and power.
In sum, the Bill offers a ruse– where English-speaking, educated, caste- and class-privileged trans people are able to exercise agency as “self-identified” (in a way that paradoxically leads to exclusion from legal recognition altogether and consequent denial of rights). While especially working-class and caste-oppressed Hijra-trans communities are subjects of a Hindu cosmic universe (passive victims that require benevolent intervention by the State through regimes of surveillance and criminalisation) without agency. ‘Kinners,’ especially, continue to be understood through the delimiting lens of deification that affords them a tenuous religious place within Hindutva’s aesthetic and ritual project; increasingly, pro-BJP groups like the ‘Bharat Kinnar Akhada’ of trans women, and their presence at fascistic events like the Ram Mandir Inauguration and Kumbh Mela, lend legitimacy to right-wing co-option of the divine trans figure.
The exceptionalised naming of “socio-cultural” communities likely aligns with the Hindutva State tactic to preserve the representational fetishes of an Indic mythological past, in which particular identities (especially ‘kinners’ and the outdated ‘aravanis’) are crucial to, and at times even collaborative with, the brahminical order. While also ensuring that status quo of erasure and violence against trans communities remains undisrupted by subjecting (especially caste- and class-marginalised) members of these communities to varying degrees of everyday surveillance and criminalisation. In so doing, the Bill replays an age-old tactic of Hijra-trans people as at once superhuman (in the world of brahminical mythology), and subhuman (in the real one) – an intensified exemplar of the larger pattern where the State has at once conditionally subsumed more and more marginal identities into the Hindu caste order, while simultaneously stripping them of any meaningful right to liveability.
A digital architecture of surveillance
The Bill’s proposed architecture of healthcare surveillance and criminalisation is brought to fruition through an amendment to Section 7, which makes it incumbent upon medical institutions to “furnish the details of [the person who has undergone surgery to change gender, either as male or female] to the concerned District Magistrate and the authority in such form and manner as may be prescribed.” While the prescribed form and manner of sharing this information is still unclear, by and in itself, this provision raises serious concerns about how this healthcare data – including individual medical histories – is stored, shared, and potentially monetised by the Indian state and corporate actors.
Particularly given the shoddy legal framework for data protection currently existing Digital Personal Data Protection (DPDP) Act 2023 which enables data to be shared among various branches of the State. This includes the police as well as with private companies. It is not hard to imagine how the sharing of data with the District Magistrate/District Collector (the primary unit of governance in any given District), coupled with the principle of interoperability central to data sharing in India, could enable the creation of a 360-degree profile of any trans person undergoing surgery across districts, and consequently, across the country. Sharing of medical histories could be particularly detrimental in hyper-visibilising and surveilling the HIV-positive trans person – already always stigmatised as a ‘sex worker’ and the epitome of a ‘contagion’ that must be contained away from the general cisgender population.
Given the State’s vested convergence with the brahminical family unit, what is to prevent natal kin from either being given access to, or voluntarily beseeching the District office for, trans healthcare data – allowing for further weaponisation of the aforementioned trans coercion and kidnapping clauses? Especially in light of the March 21st meeting between MoSJE and the National Council of Transgender Persons where it was stated that violent natal families are still “parents after all” and will never be punished by officials for crimes against their trans children. All this then functions as a deterrent for trans people to access life-saving healthcare. Notably, frontline trans- and Hijra-led healthcare networks, community-based organisations, and informal/formal groups of caseworkers – that have worked tirelessly for years to provide gender-affirming healthcare, in the face of long-standing bureaucratic neglect – are likely to be most relentlessly targeted by these data sharing mandates as well as the aforementioned ‘coercion’ addendum.
The potential sharing of this data with private companies exacerbates the full-fledged privatisation of the State (beyond ‘Public-Private Partnership’) through the neoliberalised entrenchment of the ‘medical-industrial complex.’ The reciprocal flow of data between the government and private companies has been seen in the case of telecom companies sharing call records data with the Police to track the daily movements of ‘habitual offenders.’ This could serve as a precedent particularly for social media companies to do the same in this context, given the Bill’s increased scrutiny around ‘solicitation’ and the historical targeting of trans people whose online lives often exist across the continuum of gendered self-expression and various forms of digital intimacy and sexual labour.
The recognition of this within the 2019 Act itself already left much to be desired – with dubious, almost-nonexistent data privacy protections for registration under the SMILE Portal for Transgender ID Cards. All together, this constitutes the bedrock of what can be called a digital architecture of surveillance for trans people. Inclusion in rights and surveillance of bodies have thus always been twin agendas that the State mobilises in tandem – and, clearly, ones that can be reshaped, withdrawn, and mobilised at a moment’s notice to criminalise communities in the same breath as promising them identification.
The inevitable documentary incongruencies that will result from this Bill create unique precarities for caste-oppressed and Muslim trans people, exacerbating their risks of incarceration, deportation, criminalisation, and even statelessness. Especially in the context of a post-CAA/NRC era and the ongoingly violent hurdles around the procurement of Caste Certificate, the Bill threatens to converge with already faulty regimes of identification that exist to disenfranchise these communities. It is precisely for this reason that the longest-standing, unanswered demand of the anti-caste trans movement has been for Horizontal Reservations in education and employment, which could work towards redressing these structural disparities within the transgender community.
The trope of ‘decolonising the law’ through ‘indigenous’ categories has been consistently deployed as was done with the introduction of new criminal codes in 2023, to expand the web of criminalisation. The State also deploys the oft-relied upon logic of the ‘creamy layer’ used in the case of reservation in articulation of the ‘most oppressed’ to ultimately stunt the scope of the 2019 Act. In so doing, this Bill underscores long-standing fractures along lines of caste, class, and regional identity within the transgender movement. While being careful not to conflate the distinct political categories of gender, caste, and religion in service of analogy, it is crucial to locate the logics of these proposed amendments along the long history of special legislations such as the Prevention of Atrocities Act – which have been similarly whittled down by weaponising the trope of ‘ideal victim’ through the thinly veiled facade of ‘misuse’ of the law. The 2026 Amendment proposes to kill many birds with one stone in carving out ‘the ideal (trans) victim’ to achieve its desired object of mass denial of already tenuous trans rights.
Jasmine D* (pseudonym) is a writer and trans woman. Nikita Sonavane is a lawyer, legal researcher and co-founder of the Criminal Justice and Police Accountability Project.
(With editorial inputs from Astha Bamba)
(Views expressed are personal)
