The Sexual is Political: Consent and the Transgender Persons (Protection of Rights) Act, 2019

February 3, 2020 | Vikramaditya Sahai

In the history of liberal humanism, the end to the divine right of rulers, monarchical whims and autocratic excess lies in the establishment of a democratic state. The social contract theory was an attempt to imagine a form of society in which the liberal individual could protect himself (sic) from that gravest of sovereign whims, death.


The social contract performs a two-fold task – it transforms the subject into citizen by his (sic) ability to consent, thus checking his subjection; and it ties the citizen-subject to the state, his freedom to the statist regime of recognition. In this way, consent performs not only as an act of free and autonomous will but also binds the consenting will to the state in a set of mutualities and responsibilities. When persons are not recognised as capable of consent, they are made unequal in the response-abilities between them and the state. The Transgender (Protection of Rights) Act 2019 [hereafter, Trans Act], passed recently by the Parliament, precisely undoes the capacity of the trans subject to be a citizen by revoking their ability to consent.


The Act withdraws consent from the trans subject in many ways under this Act. Firstly, of course, by denying the trans person with the right to determine their own gender. Further, the Act endows the District Magistrate with discretionary powers to judge who is and isn’t a trans person. This is not only a violation of NALSA v. Union of India (2014) which gave trans persons the right to determine who they are but is an even more terrifying injunction to the medical-pharmaceutical industrial complex to determine what trans persons should do with their bodies, enforced under the threat of withdrawal of legal recognition.


Many trans persons and trans communities have been vary of the opacity and lack of accountability of the medical-pharma complex and have relied on other forms of transformation and inhabiting chosen genders than those determined as legitimate by surgeons, endocrinologists and counsellors.  No trans person’s dysphoria is similar to another’s. It is not as if all trans persons, even if it was available, want gender affirmation surgery. It is possible to be trans and not feel it necessary to be on hormones or go under a knife. Yet, what the bill does is necessitate a regime of recognition in which the trans person must reduce their trans identity to that of the body and the body must be made into a “hieroglyphics of the flesh” where the scar has greater capacity for testimony in court than the speech of the trans person.


The Act robs the trans person of the ability to testify for themselves, to be a witness to their own lives, and turns the trans person into just a trans body. The ‘trans person’ is only a trans person when verified by the play of these experts who will each apply the regimes of knowledge that they come from  – a lethal mix of legality, medical science and psychiatry. While there isn’t nor can be any consensus on what makes one trans yet in order to access this identity, trans persons must subject themselves to the unspoken, arbitrary, and unaccountable criteria decided by these agencies.


By not even mentioning reservations for trans persons in education, employment or housing, trans persons are condemned to begging and sex work for livelihood. The scopic economy around begging and sex work both value the marking of flesh as the source of recognition and capacity and thus putting the caste order of things fully in line with the above-mentioned medico-pharma-porno complex.


Audre Lorde made the distinction between the erotic and the pornographic.[1] The erotic is the site of the realisation and enjoyment of the sensuality of the subject in her fullness. Its use for the profit of another is the ‘pornographic’. Even as this seems like a sex-negative position, I believe that in Lorde’s understanding when women would control the modes of their representation, pornography would also not be pornographic.


The Trans Act takes away the sensuality of the trans person and hands it over for the scopic enjoyment of a District Magistrate, the profit of the medical-pharmaceutical complex. It imposes the rule of experts rather than value the desires and speech of the trans person. By denying the trans subject the ability to testify to their own body, name their desires and act in ways that represent them; the Act denies equality before the law and legal personhood to trans persons. The Act shows how deeply the state is invested in maintaining the gendered ways of the world, ironically in the name of trans rights, and how the social contract is, at heart, sexual, nay, pornographic.



[1] Audre Lorde, The Uses of the Erotic (1984).

Vikramaditya Sahai


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