Trans Act is an Effort to Counter Queer Politics Which Poses a Threat to the Brahminical Social Structure

The Indian parliament passed the Transgender Persons (Protection of Rights) Amendment Bill in March this year. And with the President’s assent on March 30, the bill has become the law of the land. The Transgender Persons (Protection of Rights) Amendment Act, 2026 (hereafter the TPA Act), significantly amended the principal Act of 2019. The TPA Act removed the right to self-perceived gender identity, limited the scope of definition of transgender person, it provided for compulsory registration and medicalisation of recognition process and inserted new forms of offences with severe graded punishments.

For many, this development came as a shock considering the speed at which the bill was tabled, discussed, passed in the parliament and received the presidential assent. It happened in less than a month without any political discourse around the topic or expressed intention by the government prior to its introduction in the Parliament on March 13, 2026.

This hastiness was called out by some of the members of the opposition parties during the Parliamentary debate on the bill, calling it untimely and trivial. However, a closer analysis of the TPA Act from critical caste lens reveals it as a rational response of Brahminism to the queer politics of our time. In this article, I argue that the amendment is an attempt to find a middle ground where queer socio-political expressions can be assimilated into contemporary Brahminical social order and its Hindu nationalist politics. To understand this politico-legal development of assimilation, it is important to situate it in the discourse of caste and colonial legality.

Conception of Brahminical family and the issue of surplus queer

While conceptualising caste and its hierarchical social structure, Dr Ambedkar emphasised the centrality of endogamy (absence of inter-caste marriage) for the maintenance of caste order.

“Castes in India means an artificial chopping off of the population into fixed and definite units, each one prevented from fusing into another through the custom of endogamy… Thus, the superposition of endogamy on exogamy means the creation of caste” (Babasaheb Ambedkar Writings and Speeches (BAW&S) Vol 1, p 8)

For caste structure to sustain, the subordination and control on women’s sexuality becomes a necessity. In various texts, particularly in the Philosophy of Hinduism and in The Hindu Social Order and its Essential Principles, Ambedkar describes the modalities in Hindu social order by which women’s sexual expression is contained and regulated within a caste (BAW&S Vol 3).

The conception of family in Hindu social order is crucial to understand the aspect of control and regulation of sexuality. The Brahminical normative family consists of a cis-gender heterosexual man who marries a cis-gender heterosexual woman of his caste and carries forward his patrilineal progeny through reproduction.

“He only is a perfect man who consists (of three persons united), his wife, himself, and his offspring” (Manusmriti IX, 45).

In this normative structure of family, queer expressions of gender and sexuality find no place. Considering queer bodies do not contribute to reproduction of the Brahminical family in normative sense, such queer expressions are discouraged, stigmatised and then excluded from mainstream caste society. By queer expressions I mean non-normative gender and sexual attributes of person, which falls outside the binary (male-female) cis-gender system and heterosexuality.

Historically marginalised queer family structures

Because of such exclusion, many queer socio-cultural groups like Hijra, Kinner, Jogta, Aravani, and others, had to create their own kinship communities like gharanas which are non-normative family structures. Marriage and procreation are not the central point of these non-normative family structures but are formed around shared experiences and collective identities around their queerness. These family structures have been historically marginalised, stigmatised, and treated with contempt in society.

Hindu religious and mythological texts have numerous examples of queer identities and expressions which are often cited to acknowledge their existence, assign spiritual importance and confer supernatural power to them (some of these examples were also mentioned during the parliamentary discussions on the bill). Despite such references, queer and transgender communities face discrimination, violence and exclusion in society. Furthermore, it is the topic for another discussion to critically analyse the social standing of queer-transgender persons appearing in such references.

However, it is important to highlight the dynamic relationship between Brahminism and regulation of queer-transgender communities in society. On one hand queer-transgender people face otherization, stigmatiaation, discrimination, and exclusion, and on the other hand their existence is historically (mythologically) acknowledged and revered spiritually and ritually as exceptional.

In such dynamic and paradoxical social arrangement, queer transgender communities are assimilated into Brahminical social structure. Through this assimilation and by stripping away of their agency and restricting their personal liberty it ensures that they do not transgress from their relegated social position or pose any significant threat to Brahminical caste order.

Colonial policing and Criminal Tribes Act

Much harm was done to the social and economic rights of queer-transgender people under the British colonial rule. The colonial regime through its legality exerted control and imposed its morality on its imperial subjects. The Criminal Tribes Act of 1871 is one such legal tool by which colonial power criminalised certain nomadic communities and traditional queer communities, particularly Hijra communities. These communities, which induced anxiety in colonial administration and challenged their western moralities, were marked inherently as criminals. Calling them ‘eunuchs’ (a pejorative and derogatory term) the legality required their registration, constant surveillance and they were always seen as suspects of crimes.

The colonial legality in effect exerted profound adverse impact on an already stigmatised and marginalised community. Queer sexual expression in the form of homosexuality was also criminalised through Section 377 of the Indian Penal Code, 1860. It took long struggle before the Supreme Court in its landmark judgment in Navtej Singh Johar v. Union of India (2018) decriminalise homosexuality in India.

The amendments in the TPA Act are reminiscent of the Criminal Tribes Act. The TPA reintroduces the category of ‘eunuchs’ in the new definition, however, without defining who is one. Further, the penal provisions in the TPA Act refer back to similar language used in colonial Criminal Tribes Act. The language of ‘allurement’, ‘kidnapping’, 'castration’, ‘mutilation’, and so on, reinstate prejudices, biases, misconceptions against queer-transgender communities through this law. It will have severe consequences on the community, making them criminal subjects yet again (read here). While Brahminism imposed social regulation on queer-transgender communities, the colonial regime designated them as criminal legal subjects.

The TPA Act and the project of assimilation

India post-independence witnessed substantial reforms through constitutional rights and legal framework. Arrival of liberalisation and globalisation also contributed to the process of modernisation. The consistent struggle for the rights and recognition by the queer community also led to progressive legal reforms particularly in the two decades. These progressive reforms were mostly operationalised by the Indian judiciary.

However, despite democratic and progressive legal framework, and arrival of modernity, liberalisation, the structure of caste and Brahminism survived. Caste adapted itself to remain entrenched in Indian social structure.

The recent progressive trend of legal recognition of queer people as equal citizens while acknowledging their diverse gender and sexual identities under fundamental rights framework disturbed the status-quo social order intrenched in Brahminism. From a Brahminical standpoint it is perceived as a threat to the established social order as it provided legal validity and safeguards for ‘transgressing’ gender and sexual expressions.

Self-asserted identities and socio-cultural identities that do not perform caste assigned duties disturbs the logic of normative family and caste order in larger society. Hence, the TPA Act is a rational response by populist Hindu (Brahminical) nationalist government in power to address and contain such ‘transgression’ which poses a threat to Brahminical social structure.

The TPA Act completely discards the aspect of a person's bodily autonomy of self-identified, self-declared gender identity and replaces it with bureaucratic and medicalised procedure, where gender identity of a person will be determined by the persons in the system under the supervision of the State. It strengthens the monitoring, registration, surveillance of transgender people under legal procedure.

The TPA Act, by recognising only some of the traditional socio-cultural communities, seeks to send a message that state recognition will be available to only those who accept their social status within the Brahminical order.

Backsliding of queer rights not a standalone event

This backsliding of queer rights must not be taken as a standalone event without going into historic, socio-material and political causes which facilitated it. On legal validity question, the TPA act prima facie violates principles of constitutional morality by disregarding individual bodily autonomy and privacy. It violates queer-transgender persons freedom of expression and liberty.

The TPA Act at this point in time must be taken as a rational response of Brahminism against contemporary queer politics using colonial legal strategies of regulation and criminalisation. The critical caste analysis of this legal development explains that it is a project of assimilation of queer-transgender identities and expressions into the contemporary Brahminical social order. Historically, colonial regimes have used legality as a tool to manage and surveil colonial subjects. Similarly, in this case, TPA legislation is being used to structurally otherise but also assimilate queer-transgender subjects into Brahminical fold.

Prashant is a Research Associate at the Access to Justice for Prisoners programme, started by NALSAR University of Law. He is a gender queer person belonging to the Scheduled Caste community. 

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