A Privacy Centric Approach to Transgender Legislation (2/4)

Surveillance, the Technology of Security and Suppression of Minority Gender Identity

The Technology of Security

The Indian state appears to be staying firm with its tendency of creating a form of surveillance architecture that regulates the means and manner in which transgender individuals conduct their lives. Once more, we will rely on Bodwal (2022),¹ who appears to draw from Foucauldian approaches to law and regulation,² and describes the "technology of security," as a factor in creating a more governable society. The first pillar of this factor, paternalism, refers to regulations on the grounds of protection—i.e., that the state is acting in a "paternalistic" capacity to protect a specific group of people through this legislation. For instance, in case of the 2019 Act (or even the 2026 Amendment), the stated objective is to protect the right of the oppressed transgender community. Whether the state does so effectively is a secondary question, however.

The second pillar, documentation and legibility, is crucial in determining exactly who is being governed under the law. As discussed, when making laws, the state prefers to simply complex human identities into standardised categories that the state can track.³ To do so, the state first carries out a sorting function to determine who an "ideal subject" is that can be governed under the legislation in question, following which it uses an "identification apparatus" (such as ID cards and population registers) that demands classification based on specific pre-determined traits. That is, the state defines who a "transgender person" is, and attempts to keep a record of them to ensure that the benefits under the relevant laws reach them.

The third pillar, criminalisation, acts as the enforcement mechanism, and operates at two levels—implicitly, where the social structures traditionally attributed to the transgender community are regulated and limited, and explicitly, where transgender identity is "controlled" directly by the state, whether through explicitly prohibitive laws, or through "protective mechanisms," such as "rehabilitation centres," which have long been criticised as forms of sanitised confinement. These mechanisms have been consistently used by the Indian state when governing transgender people, and must not be viewed as distinct pillars operating is isolation.

The Criminal Tribes Act 1871

The CT Act was introduced by the colonial government as a means to provide for "registration, surveillance and control of certain criminal tribes and eunuchs."⁴ One may note that this preambulatory clause contains the three pillars we have discussed: first, paternalism, with the state positioning itself as the guardian of society against perceived threats. Second, documentation and legibility, through mechanisms of registration and surveillance that allowed the state to define, classify, and continuously monitor who constituted a "criminal tribe" or a "eunuch." Third, criminalisation, as the idea of "control" signified the use of coercive state power to manage these groups, effectively embedding their marginalisation within a legal framework.

Documentation and Legibility: The CT Act established an extremely narrow definition of eunuch—i.e., as individuals of the male sex who, either by admission or through medical tests, are found to be impotent.⁵ The Local Governments were required to maintain registers of eunuchs in the area, and properties held by these eunuchs.⁶ Importantly, if an individual was aggrieved by the addition of their name in the list, they could appeal to the officer, but the final decision with respect to revocation lay with the officer.

Control: The creation of such register made surveillance of eunuchs and their behaviour easier to control. For instance, registered eunuchs were barred from being "dressed or ornamented as women" in public places,⁷ a form of regulation that prohibited one from expressing their gender identity freely. Similarly, a registered eunuch keeping a boy under the age of sixteen in any property in his control would be subject to criminal punishment.⁸ This was based on a common fear in colonial India that the Hijra community made "eunuchs" out of boys, almost as if to suggest that transness is transferable through physical proximity.⁹ For instance, in one documented instance, a 12-year-old boy named Moolah, who was "not emasculated," was found residing with a person identified as a "eunuch." In the absence of any legal evidence or substantiation, authorities presumed that he was being subjected to "unnatural" sexual acts and consequently sent him to a reformatory.

The CT Act itself was repealed as being violative of the spirit of the Indian constitution. Nonetheless, it appears that recent approaches to regulating the lives of transgender people through the 2019 and 2026 Acts rely on some of the flawed assumptions and methodologies adopted by the CT Act.

Legal Questions

The Transgender (Protection of Rights) Act, 2019 was introduced following the Supreme Court's landmark judgement in NALSA. At a constitutional level, NALSA formalised a series of rights that focused on improving the lives of transgender persons. The following are important from a privacy perspective:

1. Gender was held to be a core component of one's personal life, and therefore, self-identification to be a core component of Article 21 of the Constitution, breach of which would amount to a breach of the right to dignity, liberty and privacy.¹⁰

2. The Court also held that the right to freedom of speech and expression under Article 19(1)(a) includes the right to express one's self-identified gender through dress, words, actions, or behaviour. It stated that the State cannot prohibit or interfere with such expressions of personality.¹¹

3. The judgment explicitly declared that legal gender recognition must not be contingent upon Sex Reassignment Surgery (SRS), hormonal therapy, or other medical procedures. The Court characterised any such insistence by the State as "immoral and illegal."¹²

In 2018, the Supreme Court in K.S Puttuswamy v. Union of India¹³ ("Puttuswamy") upheld the right to privacy as a fundamental right and recognised the importance of privacy in the realm of sexual or gender identity, stating:

"The intersection between one's mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right, and the freedom of self-determination. When these guarantees intersect with gender, they create a private space which protects all those elements which are crucial to gender identity. The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual. Above all, the privacy of the individual recognises an inviolable right to determine how freedom shall be exercised."¹⁴

Further, the Court also rejected the idea that the rights of the LGBT Community cannot be provided special consideration since the community itself holds a miniscule percentage, and often is not accepted by the majority. It held:

"The test of popular acceptance does not furnish a valid basis to disregard rights which are conferred with the sanctity of constitutional protection. Discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life does not accord with the 'mainstream'. Yet in a democratic Constitution founded on the rule of law, their rights are as sacred as those conferred on other citizens to protect their freedoms and liberties."¹⁵

Arising from the Puttuswamy judgement was the threefold "Puttuswamy Test," for laws that place limitations on the Right to Privacy. First, the state must prove to have a legal mandate and sanction of the law (legality); second, the restriction must serve a valid state aim, such as public order or national security (legitimate state aim), and; third, the restriction must be necessary and proportional to the intended objective, ensuring it is the least intrusive method possible (proportionality).

Emerging technologies also lead to increasingly pervasive forms of surveillance, and, as we noted in the case of the CT Act, surveillance may act as a form of social control. This was recognised by the Court in Puttuswamy, where it discussed the "chilling effect" on free speech that calculated interference with privacy may have. Data collected from surveillance may also be used to push narratives about minority communities that impact social perception, and create further cause reason for surveillance.

Let us analyse, for instance, the Government of India's 2017 Guidelines that placed an indefinite ban on blood transfusion by transgender persons, men who have sex with men, and female sex workers.¹⁶ These categories of persons are deemed to be "at risk" for HIV and Hepatitis B/C, solely on the grounds of their identity, and are "permanently deferred" them from donating blood. Naturally, the constitutionality of these Guidelines was challenged before the Supreme Court of India in Thangjam Santa Singh @Santa Khurai v. Union of India¹⁷ on grounds of it being violative pf Article 14, 15 and 21 of the Constitution.

The Government of India justified said ban, claiming it to be "rooted in data," and that the priority should be the health of the recipient and not the "right of the donor," invoking Article 47 of the Constitution (improvement of public health). Two things we may note here:

First, the "data" cited refers to the 2020-2021 Annual Report of the Department of Health and Family Welfare which stated that HIV prevalence in the aforementioned high-risk groups is 6-13 times higher than average adult HIV prevalence. However, this categorisation simplifies the interaction of several variables. The United Nations Development Program Report on Hijras/Transgender Women in India: HIV, Human Rights and Social Exclusion ("UNDP Report")¹⁸ clarifies that much of the risk comes from assault and barriers in accessing treatment services for STIs. This may seem logical—after all, regardless of the cause for the harm, it is objectively true that the "high risk people" are of higher risk of these STIs.

However, the issue here is that the ban is not based on what the person does, but who the person is. The comparison itself is flawed: it pits the "average adult," who is not routinely exposed to sexual violence or systemic barriers to healthcare, against the "average trans person," whose higher HIV vulnerability often stems from precisely those structural conditions. Treating this disparity as an inherent feature of identity collapses cause into category. If the objective is genuinely to reduce risk, the State should assess specific high-risk behaviours—such as unprotected sex, transactional sex, or exposure to sexual violence—rather than imposing blanket bans based on who a person is. Such identity-based exclusions are overbroad, stigmatising, and disconnected from the actual drivers of risk.

Second, since activities are now collapsed into identity, categorisation implies stereotyping. The average transgender person is now perceived as a likely carrier of diseases such as HIV/AIDS, and are subject to further stereotyping. This is dangerously reminiscent of the "criminal tribes" categorisation of the CT Act that discussed before.

Furthermore, this implies mandatory disclosure of sexual history or gender identity for the purpose of donation of blood. Critics argue that this is not necessary, since all blood goes through rigorous testing once donated.¹⁹ We may best view the Guidelines against the threefold Puttuswamy Test:

a. Legality: The state does not have the legal mandate to carry out such a ban since administrative guidelines may not suffice if they arbitrarily override the fundamental rights established in NALSA and Puttaswamy.

b. Legitimate State Aim: Puttuswamy recognises public health and the prevention of disease as legitimate state interests. However, the test requires that the aim not be manifestly arbitrary.

c. Necessity & Proportionality: Is disclosure of sexual and gender identity necessary for the purpose of donating blood? Critics argue that the presence of extensive testing once blood is donating makes necessary disclosure of SOGI redundant.²⁰ Further, it may even prove to be counterproductive to public health by reducing the number of blood donors. That is, mandatory disclosure of sensitive personal information is neither necessary nor proportionate to the aim of the state in this case, which is to ensure safety of recipients of donated blood. Non-intrusive alternatives, such as disclosure of "high-risk behaviours," as opposed to creating a list of "high-risk persons," do exist and are more likely to pass constitutional scrutiny.

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