Rongsenzulu Jamir
The anthropologist James Clifford once asked: “Who has the authority to speak for any group’s identity and authenticity?”
His question came from a 1970s trial. The Mashpee Wampanoag tribe of Massachusetts sued to reclaim 11,000 acres of their ancestral land. Before the court would hear the case, a jury had to decide whether the tribe was ‘really’ a tribe. The state demanded written proof. The tribe offered oral tradition, kinship and a deep sense of who they were. The jury said they were not a tribe in 1870 or 1976.Their land claim was dismissed. The tribe’s medicine man testified: “We were different. We knew we were different. We were told we were different.” It took nearly three decades for them to win federal recognition, finally granted in 2007.
That same question now lies at the heart of India’s Transgender Persons (Protection of Rights) Amendment Act, 2026, which received presidential assent on March 30. The transgender community has protested forcefully against the law. The Bill was passed despite strong opposition, with the leader of the opposition calling it a “brazen attack on Constitutional rights”. The government says the law prevents fraud and makes welfare more efficient. Yet, beneath that rationale lies a deeper issue: who gets to decide who is “really” transgender?
The Transgender Persons (Protection of Rights) Act, 2019 defined a transgender person broadly as anyone “whose gender does not match the gender assigned at birth”. It included trans men, trans women, non binary people and traditional identities such as hijra, kinnar, etc. The 2026 Amendment Act narrows this to only traditional socio cultural identities and intersex persons. It removes the right to self identification, which the Supreme Court had affirmed in its 2014 NALSA judgment. Instead, presently the law requires certification by a medical board and approval by a district magistrate. The law also declares that certain identities “shall not include, nor shall ever have been so included”, a clause that retroactively affects the roughly 30,000 people who had already received identity certificates. As Zainab Patel, a petitioner in the NALSA case emphasizes, “Now, I am what the system chooses to recognise me as, not who I say I am.”
India is not alone in confronting these questions. Argentina’s 2012 Gender Identity Law allows self identification through a simple declaration- no medical intervention, no judge. Nepal’s 2015 Constitution explicitly prohibits discrimination on grounds of gender and sexual orientation, and Nepal has issued citizenship documents with a third gender option since 2013. In March 2026, the country’s first transgender lawmaker, Bhumika Shrestha, took her seat in parliament. In contrast, Portugal began debating bills in March 2026 that would end self identification and bring back medical gatekeeping. Similar debates are happening in Bulgaria, Slovakia and Hungary. These divergent paths show that the question of recognition is never merely technical. It reflects a choice, does the state trust its citizens to know who they are or does it demand proof?
The new law was introduced only five months after the Supreme Court’s judgment in Jane Kaushik v. Union of India. The court found that the 2019 Act had been” brutishly reduced to dead letters” because of “deep rooted societal stigma and the lack of bureaucratic will”. Welfare boards existed in only 17 states, and the welfare budget was spent at just 14 per cent. Days before the law was passed, a Supreme Court appointed advisory committee headed by former judge Justice Asha Menon asked the government to withdraw the bill. The government ignored the request and passed the law.
The problems with the 2019 Act were not definitional but failures of implementation. No evidence of widespread fraud has been produced, still the consistent under utilisation of welfare budgets points to a lack of implementation, not an excess of claims. A reasonable first step would be to implement what already exists, set up welfare boards, spend the allocated funds, and fix procedural delays before considering any amendments. The Supreme Court has held that self-identification is a constitutional right. If the government believes that judgment is wrong, it should seek to have it reconsidered, not circumvent it with a new law. A law made about a community without that community, as this newspaper has noted, is unlikely to serve its members well.
Ultimately, the deeper issue is not administrative but philosophical. The state does not create identity. It can only recognise what already exists or chooses not to. Under the new law, the act of self declaration loses its impetus. This shift from “Who are you?” to “Can you prove it?” is not progress. It is a return to colonial suspicion. You are no longer who you say you are. You are who the state certifies. To be a citizen is to be a certified human.
Rongsenzulu Jamir teaches anthropology at the University of Hyderabad. Anil Kumar, a PhD scholar in the Department of Anthropology, contributed to this piece. Views expressed are personal.
