The Rajya Sabha on Wednesday (March 25) passed the Transgender Persons (Protection of Rights) Amendment Act 2019. The Bill proposes sweeping changes to the existing 2019 Act and narrows the legal definition of a transgender person.

In this context, it is important to understand how the legal frameworks shape societal understanding of gender identities, and how the debate on sex and gender has evolved over time.

Although often used interchangeably in common parlance, debates about sex and gender have been central to feminist theorisation since the movement’s early stages. Feminists have historically distinguished sex (biological sex) from gender (the social roles of being a woman or a man). This distinction was a feminist counter to the biological determinist view that biology is destiny. 

For instance, in her iconic work, The Second Sex (1949), Simone de Beauvoir famously argues that one is not born a woman but becomes one. She emphasises the social nature of gendered identity and how womanhood is constructed through socialisation. The differences between men and women are seen as socially produced. 

Gayle Rubin, in her essay The Traffic in Women: Notes on the “Political Economy” of Sex (1975), uses the phrase “sex/gender system” to explain how a “society transforms biological sexuality into products of human activity”. Gender is understood as a socially constructed distinction between the sexes that is often imposed coercively. 

Noted feminist Judith Butler also critiqued the distinction between sex and gender in her book Gender Trouble: Feminism and the Subversion of Identity (1990). Butler argues that in countering the biologically deterministic view, feminists inadvertently created their own hegemonic version of what it means to be a woman, and that feminine traits are universally shared. For Butler, the term woman cannot be defined. Gender is performative – it is instituted through stylised repetition of habitual acts, which are gender-coded. 

Gradually, there has been growing criticism of the sex and gender distinction that challenges fixed notions of gender. For instance, Robin Dembroff in the essay Beyond Binary: Genderqueer as Critical Gender Kind (2020) argues that the binary gender division between men and women overlooks the identity of those who fall outside the binary, a group they call ‘genderqueer’. 

These genderqueer and gender diverse non-binary identities are not exclusively female or male, and can comprise elements of both femaleness and/or maleness. Some non-binary identities reject aspects of gender/sex as a social system itself. They can be understood under a broad transgender umbrella, diverging from the gender associated with the person’s assigned sex at birth.

This non-binariness is not a recent phenomenon, as it has existed in all historical eras. For instance, in the Indian context, one can find the mention of transgender individuals in both historical writings and mythological epochs. 

Globally, there has been considerable anxiety around this non-binary understanding of gender. There is a feminist backlash rooted in the protection of traditional familial values and structures, with the law becoming a tool for conservatives globally. 

For instance, US President Donald Trump introduced a two-gender policy in his second term in January 2025 and eliminated the term transgender from the official lexicon of the US federal government. In 2017, during his first term, he had stated that the US would not allow transgender individuals to serve in the U.S. military. This ban was reversed by his successor, Joe Biden (2021-2025), but was once again brought back by Trump in January 2025. 

Elsewhere in the United Kingdom, the Supreme Court ruled in 2025 that under the Equality Act of 2010, transgender women could be excluded from single-sex spaces and services. 

In the Indian context, the story has been interesting. The 2011 census introduced the ‘other’ category along with male and female for gender identification. In the National Legal Services Authority (NALSA) vs.Union of India (2014) case, the Supreme Court of India recognised transgender individuals as the third gender, indicating that Articles 14, 15, 16, 19, and 21 of the Indian Constitution recognise the right to equality and dignity of all individuals irrespective of their gender. 

In the Justice K S Puttaswamy (Retd.) vs. Union of India (2017) case, the apex court recognised that the right to privacy under Article 21 includes bodily integrity, decisional autonomy, and the right to express one’s identity. In 2018, Section 377 was decriminalised, legalising consensual same-sex adult relationships. 

The government passed the Transgender Persons (Protection of Rights) Act 2019 and the accompanying Rules 2020 to codify the principles laid down in the 2014 NALSA judgement. The 2019 Act gave transgender persons the right to self-declare their gender.

In June 2025, the Andhra Pradesh High Court clarified that transgender women should be legally recognised as women, which entitled them to the same legal protections as cisgender women (whose gender identity matches the sex they were assigned at birth) under Section 498A of the Indian Penal Code. 

In the recent Jane Kaushik v. Union of India (2025) judgement, the Supreme Court held that no transgender or gender-diverse person is required to seek permission from their employer for surgical interventions unless their job is directly connected to their gender identity.

But despite such progressive judgements and legal rights, transgender individuals continue to be discriminated against in accessing education, employment, housing, healthcare, etc. Although legally mandated, incorporating gender identity and diversity into curricula has not yet become a reality. In September 2025, the Supreme Court issued a notice to the Centre, National Council of Educational Research and Training (NCERT), and six states to seek their response in this matter. 

Similarly, despite the Supreme Court’s judgement, horizontal reservations for transgender persons in admissions to seats for postgraduate medical education programmes in both central and state institutions remain unimplemented. 

In terms of healthcare as well, in August 2022, while the government had announced that the Ayushman Bharat Pradhan Mantri Jan Arogya Yojana (AB-PMJAY) would cover transgender individuals and offer them access to gender-affirming procedures like sex reassignment surgery (SRS) and hormone therapy, this hasn’t been the case yet. According to a 2025 IndiaSpend study, the delayed rollout of the Ayushman Bharat TG Plus card, through which these benefits would be delivered, has impacted the promised healthcare offered to the transgender community.

This leads us to ask, when legal rights already exist, what more could be done? In the Indian context, the problem is not so much about the legal framework, which is quite strong, but about sketchy implementation and social stigma. Structural changes need to be accompanied by cultural change and a shift towards a dignity-based framework for understanding bodily autonomy, freedom from violence, recognition of transgender identity, and equal citizenship. 

There is a need to include experiences of transgender communities within the broader feminist scholarship. While there is a growing recognition of non-binaryness, there needs to be global policy support for their rights. For India, the need to work towards the development of the transgender community is important to achieve the 2030 Agenda for Sustainable Development.

Simplification of self-identification procedures, strengthening anti-discrimination enforcement mechanisms, and ensuring state-level welfare boards are active and adequately funded could help in easing the implementation process. 

Healthcare professionals need to be trained in trans-sensitive practices, while mental health also needs to be a part of the proposed healthcare benefits. Teachers, counsellors, doctors, and government administrators need trans-sensitive training. To address the disproportionate violence and harassment faced by transgender communities, there is a need to diversify legal aid services available to them, as well as community-led monitoring mechanisms.

Feminists have historically distinguished sex (biological sex) from gender (the social roles of being a woman or a man). How was this distinction a feminist counter to the biological determinist view that biology is destiny?

The sex and gender distinction challenges fixed notions of gender. Discuss why has there been considerable anxiety around the non-binary understanding of gender globally?

Is there a need to include experiences of transgender communities within the broader feminist scholarship?

Discuss the Transgender Persons (Protection of Rights) Bill, 2026 in ensuring dignity and equality.

How far has the right to privacy contributed to strengthening gender identity rights in India?

(Rituparna Patgiri is an Assistant Professor at the Indian Institute of Technology (IIT), Guwahati.)

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