Introduction

Global discourse on protecting the rights of transgender people has been fairly diverse in terms of defining what exactly constitutes "protection" of rights. Nonetheless, Spade (2009) provides us with a useful summary:

"Advocates of trans equality have primarily pursued two law reform interventions: anti-discrimination laws that list gender identity and/or expression as a protected category and hate crimes laws that include crimes motivated by the gender identity and/or expression of the victim as triggering the application of a jurisdiction's hate crimes statute."¹

However, a major consideration that is often left out in scholarly work is the need for privacy-centric architecture within protective legislations. The need for privacy of marginalised groups has been observed by the UN Human Rights Council (HRC resolution 34/7) and the General Assembly (A/RES/71/19), which noted that "violations and abuses of the right to privacy in the digital age may affect all individuals, including with particular effects on women, as well as children and persons in vulnerable situations, or marginalised groups."

Before we proceed with arguments of any kind, there are three things we must qualify. First, what do we mean by "transgender"? While we will discuss the idea of "defining" a trans person, our discussion will rely on an inclusive definition as per the 2019 iteration of the Transgender (Protection of Rights) Act, 2019 ("2019 Act"), which defines a transgender person as a person whose gender does not match with the sex assigned at birth.²

Second, what do we mean by privacy in the context of protection of transgender (and genderqueer) people? For this, we may also rely on the Human Rights Committee's interpretation of Article 17 of the ICCPR in Coeriel et al. v. The Netherlands,³ as "the sphere of a person's life in which he or she can freely (i.e., with no unfair/undue influence over their actions) express his or her identity, be it by entering into relationships with others or alone." It has been widely recognised that Sexual Orientation and Gender Identity ("SOGI")⁴ is sensitive personal data that should be treated with heightened sensitivity by processors of such data. Therefore, for the purposes of our discussion, privacy refers to a comprehensive fundamental right that includes self-identification, control over disclosure of SOGI, and the protection of bodily autonomy.⁵

Third, why is the focus of our discussion limited to transgender people when the entire LGBTQ+ community faces discriminatory practices across society? Now, whereas it is globally recognised that the LGBTQ+ community is marginalised and discriminated against,⁶ transgender people occupy a unique position in India, since they may simultaneously occupy a specific socio-cultural identity, such as Hijras, Kinnars, Aravanis, Kothis, and Jogappas. This brings about a set of unique challenges that are associated with the manner in which these communities have been perceived by society since the colonial era. The Criminal Tribes Act of 1871 ("CT Act")—a colonial legislation—deemed the entire Hijra/transgender community as "innately criminal" and "addicted to the systematic commission of non-bailable offences."⁷ Despite the repeal of the CT Act in 1952, the (now delegitimised) discrimination has perpetrated against transgender community, and has even been institutionalised, as we will discuss moving forward.

The Government of India has, by introducing the contentious Transgender (Protection of Rights) Amendment Act 2026 ("2026 Amendment") which amends the 2019 Act in ways that are incompatible with the fundamental right of privacy as upheld by the Supreme Court in a slew of judgments, as we will discuss moving forward. Through this piece, we will look into how privacy centric architecture can be embedded in transgender-friendly legislation.

Defining "Transgender" Persons

The crux of the matter is establishing what constitutes a "transgender person," since the state, in order to make governance easier, wishes to make the subject of its governance—in this case the identity of "transgender," legible. We borrow from Teresa De Lauretis' understanding of gender identity as a product of social technologies such as law, medicine, and administrative systems, as opposed to being a result of innate biological characteristics alone.⁸ These social technologies work together to define an "ideal subject," that the state deems to be the subject of governance and regulation. That is; by defining the scope of "transgender persons" the state establishes who or what falls within the ambit of the relevant law.

The manner in which individuals' gender identities are defined at a legal-administrative level oscillates between two methods: self-determination and biological reductionism. The biological test reduces gender identity to a function of biological sex—adopting a "medico-legal" test to identify an individual's sex under the presumption that⁹ sex and gender are congruent in nature. In the landmark Corbett v. Corbett (1970),¹⁰ England's High Court of Justice established the infamous "Corbett Test," which held that the law should adopt the chromosomal, gonadal and genital tests and if all three are congruent, that should determine a person's sex.

Bodwal (2022)¹¹ relies on De Lauretis' approach (as discussed earlier), and suggests that social and legal institutions that construct transgender identity on the basis of bio-medical epistemes do so for the purpose of "legibility." That is, they make complex human identities fit—albeit somewhat forcibly—into standardised medical categories for the purpose of easier governance. However, he further argues that this goes beyond mere governance and is one part of a larger approach to regulate "deviant" populations, such as transgender people through a host of institutions, including medicine and psychology.

The bio-medical approach, however, has been rejected almost unequivocally at the global stage, with preference being given to the self-determination approach instead. As the name suggests, this approach enables individuals to self-declare their gender identity without the imposition of any discriminatory preconditions.

The Yogyakarta Principles – internationally recognised as the international standard for the applicability of human rights law with respect to the LGBTQ+ community – recognises the right of self-determination in Article 3, which states:

"Each person's self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom. No one shall be forced to undergo medical procedures, including sex reassignment surgery, sterilisation or hormonal therapy, as a requirement for legal recognition of their gender identity."

These principles were discussed by the Supreme Court of India in the landmark National Legal Services Authority v. Union of India¹² ("NALSA") where the SC recognised the importance of self-determination as a key component of Article 19(1)(a) (freedom of expression) and Article 21 (right to life and liberty) of the Constitution. We may also place reliance on the Supreme Court judgment in Anuj Garg & Ors vs Hotel Association of India,¹³ which recognised self-determination as an important part of gender justice discourse.

Internationally, in In Re Kevin (Validity of Marriage of Transsexual),¹⁴ the Family Court of Australia listed out¹⁵ some operative characteristics that could influence legal perception of gender, which included the sex in which he or she is brought up and the person's attitude to it, and the person's self-perception as a man or woman. More persuasive is the decision of the UN Human Rights Committee which, in an extension of its seminal 1994 ruling in Toonen v. Australia¹⁶ (Gay Rights) reiterated that the right to privacy is not limited to sexual orientation but also covers gender identity.¹⁷

However, despite near universal recognition of self-determination as a more "transgender-friendly" approach to regulation, India, through the 2026 Amendment to the 2019 Act, has taken a step backwards, and now limits legal recognition to historically accepted socio-cultural groups such as hijra and kinner, as well as intersex individuals,¹⁸ as we will discuss moving forward.