Diluting Identity: The New Transgender Amendment

The bill amends section 2(k) of the 2019 Act to place the definition of transgender within a watertight medical framework. The five grounds mentioned are primary sexual characteristics, external genitalia, chromosomal patterns, gonadal development, and endogenous hormone production. Its proviso to the section rules out persons with different sexual orientations and self- perceived sexual identities from the definition. The amendment shifts gender identity from a matter of self-determination to a question of biological verification. This closes the door for persons whose sense of gender does not match with the sex assigned to that person at birth.

It did not stop there, but extends to omit right to change first name in birth certificate and all other official documents relating to identity of such person. This shift not only disregards lived realities but also undermines the constitutional principles articulated in Justice K.S. Puttaswamy v. Union of India, where the Court recognised identity—including sexual orientation—as intrinsic to dignity and liberty under Articles 14, 15, and 21.

What the Amendment bill entails

The bill amends Section 18 to introduce two new categories of offences. It makes it an offence to abduct/kidnap an adult, or child and put such person through mutilation, castration, or chemical/hormonal procedures so as to compel such adult, or child to present a transgender identity. While such acts must be addressed, their inclusion within a welfare statute is misplaced. Such inclusion makes it a weapon against transgender. The purpose of the 2019 Act is to prevent abuse against transgender persons. Such an amendment implies that 'transgender' identity is the product of a procedure. Such observation is harmful in the sense that transgender persons already face discrimination in many avenues of life.

Secondly, compelling a person, whether through “allurement, deception, inducement” to dress, or present themselves as a transgender person is made an offence. This creates an ambiguous, rather orthodox mentality about “conduct” and “dress” like transgender. What the legislation had intended in using word “dress”? There is no recognised category of 'transgender clothing'. The wording reflects a mind-set of labelling any conduct as 'manly', 'feminine' or 'like transgender'. This makes transgender persons more vulnerable to discrimination and humiliation.

The legal ambiguity

It is imperative to note that any penal provision by rule of interpretation is to be interpreted strictly. In the sense, use of such ambiguous, rather socially backward terms would be a hindrance in deciding culpability. Vague terms such as 'inducement' and 'presentation' risk arbitrary enforcement. Furthermore the amendment in attempt to classify the offence on the basis of age of victim, that is, adult and child, fails to account for the element of consent in the case of minors. Such an ignorance of will or consent could attract consequences where any person even helping any child to come out of closet could be detained.

The legislature has made gross error in ignoring the fact that Indian society is yet to be sensitized towards transgender. In such situations a person may not open up easily, and if they do, the person they confide in is most likely a friend or someone close. Hereby support by any person in any sense creates the risk that genuine support may be mischaracterised as inducement. This not only discourages people from becoming understanding towards gender identity but also reinforces discrimination within society. At a time when the law should expand recognition, this amendment narrows it, replacing dignity with suspicion.