In a Hurry to Reform Transgender Law, the Indian State Reveals Its Own Confusion

When the state moves faster than its own understanding, policy often exposes confusion rather than resolving it. The recent push to amend the Transgender Persons (Protection of Rights) Act, 2019 raises a question that goes beyond legal reform: why this urgency, and what does it tell us about how the Indian state understands gender?

At one level, amendments are expected. Laws evolve, gaps are identified, and governments respond. But in the case of Transgender person rights in India, the pattern has been less about gradual refinement and more about oscillation between recognition and control, inclusion and regulation. The speed with which changes are proposed often contrasts sharply with the lack of conceptual clarity on the ground.

A telling example of this confusion emerged recently in Bihar. In a state survey exercise, transgender identity was, for a brief period, slotted under “caste” categories before being corrected. While this may appear as a minor administrative error, it reveals something deeper.

Caste is a hereditary, birth-based system of social hierarchy; transgender identity is about gender, embodiment, and lived experience. Collapsing the two is not just a technical mistake, it shows that the state itself is still uncertain about what exactly it is trying to classify.

This uncertainty becomes even more visible when we look at how transgender bodies are treated across different legal contexts in India. When it comes to identity, the process is often intrusive and bureaucratic. Individuals are required to navigate layers of certification and verification, effectively proving who they are to the state. Recognition, in this sense, is conditional. 2019 Transgender Person (Protection of Rights) grants a medical evaluation that includes a year or two of psychological evaluation and a certification to step in further transition process. The question arises: what is the need for bill that excludes self-determination but emphasises heavily upon biological factors to determine trans-identity that supersede an already existing act?

When it comes to protection, especially in cases of sexual violence, the same clarity is missing. According to the National Crime Records Bureau, only 20 cases were registered under the Act between 2019 and 2023, with none reported from several regions including parts of north and central India.  Legal frameworks remain ambiguous or inadequate in addressing the specific vulnerabilities faced by transgender persons. The result is a troubling contradiction: a community that is closely scrutinised when seeking recognition, but remains insufficiently protected when facing harm.

This fragmented approach is not accidental. It reflects a deeper discomfort within governance structures when dealing with identities that do not fit neatly into established categories. The law seeks stability, fixed definitions, and administrative clarity. Transgender identities, by their very nature, challenge these expectations. They disrupt binaries, question norms, and resist easy classification. The state’s response, therefore, has often been to manage this discomfort through regulation rather than understanding.

This tension between self-identification and state verification continues to shape the current moment. The urgency to amend the law, then, cannot be seen simply as a response to gaps in implementation. It also reflects a broader anxiety: an attempt to stabilise a category that remains fluid, contested, and socially misunderstood. If the concern is misuse of identity, the Transgender Persons (Protection of Rights) Act, 2019 already has a structured process in place. Chapter 3, Section 5 and 6 of the 2019 Act states that a person must apply to the District Magistrate for a certificate of identity, and Section 7 states that any change in gender after surgery requires medical certification from a recognised authority. In practice, transition is not immediate, transgender persons go through long counselling processes, often for years, followed by hormone therapy under medical supervision before any legal change is recognised. When such layered procedures already exist, the question arises: why introduce further criminalisation and stricter control? It suggests not just a concern about misuse, but a deeper mistrust of transgender identity itself. As per data from national Transgender portal out of 44,267 application for transgender identity certificate, only 32,266 has been issued. And according to 2011 census, approximately 4 lakh people consider there self in other category. If the concern is misuse of the law, then why is the actual usage so low? Data obtained through the Right to Information Act shows that only 147 Ayushman Bharat TG cards have been issued under PM-JAY so far. This raises an important question, who is really accessing these schemes, and why are so few transgender persons able to benefit from them? Rather than misuse, the real issue seems to be lack of access and implementation.

Global developments add another layer to this context. Across countries, transgender rights have become part of wider political debates, often framed within discussions of cultural change and “woke” politics. While India’s legal trajectory is shaped by its own history, it is not entirely insulated from these global currents. The language of urgency, the push for clearer definitions, and the emphasis on regulation echo a wider unease about gender diversity.

But the question remains: can law resolve what society itself has not fully come to terms with?

Rushing amendments without addressing deeper inconsistencies risks producing policies that are internally contradictory. When identity is over-regulated, protection under-developed, and classification confused, legal reform becomes an exercise in patchwork rather than transformation.

What is needed instead is not just faster lawmaking, but more coherent thinking. This means recognising transgender identity not as a problem to be managed, but as a lived reality that cuts across social, legal, and institutional domains. It requires consistency between how identity is recognised, how rights are protected, and how data is collected.

Until then, each amendment may appear as progress on paper, but in practice, it will continue to reflect the same underlying issue: a state that is still trying to understand the very subject it seeks to govern.

The proposed provision that criminalises castration punishing those who perform it or compel someone into it with severe imprisonment appears, at first glance, to be a necessary protective measure. But on the ground, the reality is far more layered. During my fieldwork, I repeatedly encountered what many referred to as “Daai maa ka chibaad”, a form of castration or “nirvana” carried out within the community, outside formal medical systems. This is not just a procedure; it is embedded in a cultural understanding of what it means to become an “real/authentic” hijra.

Many of the transgender persons I spoke to did not describe this as a simple act of coercion or choice. Instead, it exists somewhere in between. Within the hijra community, undergoing nirvana is often seen as essential for full acceptance. Without it, individuals may be questioned, excluded, or seen as incomplete. In everyday spaces, trains, bus stands, public interactions where hijra persons negotiate livelihood there is often an implicit demand to “prove” one’s identity. The body becomes that proof.

At the same time, several individuals expressed discomfort with their bodies before undergoing procedure, while others spoke of social pressure rather than personal desire. This makes the issue far more complex than a simple binary of consent versus coercion. It is about belonging, survival, and recognition within a community that has historically existed outside formal structures of rights and protection. After Transgender Persons (Protection of Rights) Act, 2019 many transgender persons prefer medical SRS procedures instead of older practices like “nirvana” or “Daai maa ka chibaad.” The method has changed, but the meaning has not. The idea of nirvana as a transition into a new life and whole-hearted acceptance within the community—still remains. What has shifted is that people now seek safer, more medicalised options, with less physical risk and discomfort. Which is now being more strict and regulated by State. the cultural understanding of transformation continues in the same way.

By criminalising such practices without engaging with these lived realities, the law risks pushing them further underground rather than addressing the conditions that sustain them. More importantly, it reveals a deeper gap: while the state seeks to regulate transgender bodies in the name of protection, it often fails to understand how those bodies are already shaped by community norms, economic structures, and longstanding cultural practices. There is also a gap the law does not acknowledge, the gap between what is legally prescribed and what is materially possible. Formal gender-affirming procedures remain expensive, long-term, and unevenly available. For many, especially earlier, there was simply no real access. This is where practices like “Daai maa ka chibaad” emerged—done at home, often by a daai or older woman/midwife in the way childbirth itself was historically handled outside hospitals. Later, some local practitioners would perform similar procedures at low cost, often without proper clinical safeguards. None of this was ideal, and people knew the risks. But in conditions of economic constraint and social urgency, many were still willing to take those risks to achieve a body that aligned with their identity and secured acceptance within the society.

Today, the discourse shifts to standardized care invoking global protocols like the World Professional Association for Transgender Health guidelines or the Indian Professional Association for Transgender Health framework (Standard Of Care) SOC 8. On paper, this appears progressive. But it also raises difficult questions. How many public hospitals actually follow these standards in practice? How many doctors are trained to understand transgender bodies beyond textbook categories? Even the promise of free gender-affirming surgery under the Transgender Persons (Protection of Rights) Act, 2019 remains unevenly implemented across states.

Without addressing these gaps, criminalising community-based practices risks closing one pathway without opening a viable alternative. It shifts authority to medical institutions without ensuring their preparedness, accessibility, or accountability. More importantly, it reflects a familiar pattern policy being revised and tightened without sustained consultation with the very community it seeks to regulate. At this juncture, the priority must shift from producing new amendments to ensuring accountable and sensitive implementation of existing provisions. Continuous legal revisions, without grounded execution, are generating uncertainty and inadvertently restricting access to gender-affirming medical processes. What is required is not more law, but better practice—rooted in autonomy, dignity and community trust.

- Neelima is a Research Scholar at the Dr. K.R. Narayanan Centre for Dalit and Minorities Studies, Jamia Millia Islamia, New Delhi. Her work focuses on gender, sexuality, and public policy, with particular emphasis on transgender health, social exclusion, and access to welfare systems.