Simone de Beauvoir stated in The Second Sex that the gender binary is ‘perhaps superficial; perhaps destined to disappear’. Decades later, Judith Butler reinforced this view, which was powerfully carried into the Indian context by Nivedita Menon, who argued that dismantling the rigid enforcement of the male–female divide would allow the gender binary to dissolve into a fluid spectrum of human existence. By connecting these ideas across time and geography, we can identify a shared philosophical vision of liberation from structural conditioning. However, we have failed to adequately address a fundamental question: What is gender?
The mainstream feminist movement focused on securing legal and political rights for women by constructing a fixed definition of ‘woman’. In doing so, it handed the state a definition, and the state has consistently used this definition to create and enforce limits and boundaries.
For years, feminism has worked to dismantle the restrictions and assumptions imposed by the patriarchal binary, yet it has often reproduced the very structures it seeks to challenge. The mainstream feminist movement focused on securing legal and political rights for women by constructing a fixed definition of ‘woman’. In doing so, it handed the state a definition, and the state has consistently used this definition to create and enforce limits and boundaries.
These state-imposed boundaries have excluded trans women from being counted or recognised as women, flattened the distinct experiences of Dalit women within the feminist movement, and erased people with non-binary identities. The first order of business for feminism to genuinely represent the full diversity of gender is to answer the question: What is gender?
And why has the feminist movement struggled so much to answer this question without limiting or confining it to a narrow definition? In the Indian context, the gender binary has never fully belonged to us. What has only recently been theorised by academics has, in fact, been the lived experience of diverse communities across India for centuries.
The gender binary in colonial and contemporary India
Undoubtedly, Western theory gives us the vocabulary, with Butler showing how gender is performed rather than possessed and demonstrating that the category of ‘woman’ has always excluded someone. However, India’s precolonial history includes an array of critical thought on gender, which is why there is no reason to import Western concepts uncritically.
It is important to note that colonial rule imposed a rigid binary gender system to control the population through oppressive legal structures.
Temple traditions, the kingship networks of Hijras, and diverse legal systems before colonisation articulated gender as something performed rather than inherited. It is important to note that colonial rule imposed a rigid binary gender system to control the population through oppressive legal structures. A case in point is the Criminal Tribes Act of 1871, which was used to criminalise Hijras simply because they could not be categorised by the colonial bureaucratic apparatus, thus creating and legitimising the state’s authority to exercise control over its subjects.
This is precisely where postcolonial Indian feminism fell short in reconstructing what was lost to imperialism through patriarchal restrictions. This is also where the trap deepens, because it was not built solely by patriarchy; rather, it was inherited from colonialism and has since been quietly reproduced.
Nivedita Menon, in Seeing Like a Feminist (2012), asks us to constantly interrogate whom the category ‘woman’ serves and whom it silences. A question that Indian feminist movements have not always been willing to sit with. Sharmila Rege explains how the Savarna woman became the default feminist subject, mistaken for a universal one. This forced everyone else’s unique struggles to be judged against that standard.
Gopal Guru argues that who gets to theorise gender is itself a political act, and that ‘upper’-class feminist theory carries its own limitations into every policy, every petition, and every demand it shapes. The binary, in other words, had more than one architect. Patriarchy drew the wall first, colonialism reinforced it, and postcolonial feminism sometimes forgot to question whether the wall should exist at all.
Patriarchy drew the wall first, colonialism reinforced it, and postcolonial feminism sometimes forgot to question whether the wall should exist at all.
Writer and activist A. Revathi, in her book The Truth About Me, does not discuss gender issues philosophically; rather, she writes from lived experience, recounting the pain of being expelled and the anguish and isolation of living in a body that the law does not recognise and society does not acknowledge. She doesn’t ask to be counted as a ‘woman’ but instead questions something far more unsettling: the necessity for determining if a person should be classified as a woman.
Grace Banu, a Dalit transgender activist, furthers this discussion. She has to confront both caste oppression and gender discrimination simultaneously. She does not have the choice of separating the two, as she has never experienced them separately. Banu’s political identity is located at the intersection of these struggles.
Activist and social worker Kalki Subramaniam, on the other hand, brings clarity to the question of judicial recognition. In June 2025, the Andhra Pradesh High Court ruled that a transgender woman was a woman under law. Subramaniam said that she felt a sense of relief at the ruling. ‘The basic human right is to identify yourself as whatever you want to be identified as,’ she said. This ruling is not simply a legal success; it exemplifies the injustices of evidence-based legal frameworks that recognise gender only as a binary. It also highlights a challenge to feminists working for women’s rights, who must consider whom they are leaving out.
The legal timeline: a story of contradictions
The courts said one thing, the legislature said another, and then came 2026. This sequence proves that the story of gender and Indian law is not a story of progress; it is a story of a door being opened, then closed, then narrowed, then opened again, and one that the legislature is now trying to lock entirely.
In 2014, the Supreme Court in NALSA v. Union of India delivered a landmark judgement, placing the right to determine one’s gender identity in the hands of the individual rather than in a doctor’s certificate or a district magistrate’s file. Self-identification became a fundamental right rooted in Articles 14, 15, 19, and 21 of the Constitution. The Supreme Court said, with unusual clarity, that gender is what you know yourself to be and that the state does not get to decide it.
The Transgender Persons (Protection of Rights) Bill, 2019, disguised as a protector of rights, dismantled the clarity that was gained in 2014. It reinstated the district magistrate as the gatekeeper of gender, requiring a certificate and administrative endorsement for legal recognition of one’s gender, handing back to the state exactly what the court had taken away from it with the NALSA judgement.
Five years later, the Transgender Persons (Protection of Rights) Bill, 2019, disguised as a protector of rights, dismantled the clarity that was gained in 2014. It reinstated the district magistrate as the gatekeeper of gender, requiring a certificate and administrative endorsement for legal recognition of one’s gender, handing back to the state exactly what the court had taken away from it with the NALSA judgement.
In 2025, the Supreme Court, in Jane Kaushik v. Union of India, exposed the gap between the NALSA judgement’s promise and the 2019 Act’s reality. The court condemned the state institutions’ grossly apathetic attitude towards implementing even the protections that already existed and ordered the formation of an eight-member committee to develop a binding equal opportunity policy, proving that a right without enforcement is not a right; it is merely a suggestion.
The court condemned the state institutions’ grossly apathetic attitude towards implementing even the protections that already existed and ordered the formation of an eight-member committee to develop a binding equal opportunity policy, proving that a right without enforcement is not a right; it is merely a suggestion.
The Transgender Persons (Protection of Rights) Amendment Bill, 2026, has now removed the right to self-perceived gender identity from the law entirely, replacing it with a mandatory medical certificate, erasing trans men and trans women from the legal definition that had previously recognised them; undoing, in one legislative stroke, what a decade of judicial reasoning had carefully built.
The Rajasthan High Court, while hearing a challenge to the amendment, put it with quiet devastation that what the Supreme Court had recognised as an inviolable aspect of personhood had been reduced to a contingent, state-mediated entitlement. This is where Indian gender law stands in 2026: not at a frontier, but at a fault line.
Gender is a living argument
Gender is not what the district magistrate’s certificate certifies. It is not what the Criminal Tribes Act decided in 1871. It is not what the 2026 amendment insists. It is not a checkbox, and certainly not a biological factor that the state can verify or the legislature can revoke.
Gender is a living argument, and it should stay that way because when there is no discussion and debate, the power to name and define gender falls into the hands of those who will draw another wall.
So, what is gender? Gender is what you feel it is and what you want it to be. Gender is the fullest and most ungovernable expression of yourself, through which you interact with the world on your own terms. It is the freedom to inhabit femininity, masculinity, both, neither, or something that does not yet have a name but lives within you so completely that no certificate could ever capture it and no amendment could erase it. Your gender is yours to define. The unfinished business, thus, is not our inability to name gender but our tendency to allow institutions to name it; and those institutions often have a significant motive to mislabel it.
Gender is a living argument, and it should stay that way because when there is no discussion and debate, the power to name and define gender falls into the hands of those who will draw another wall. Beauvoir believed that gender differences are shallow, should cease to matter, and would eventually fade away. She was correct, but she did not bring the thought to its conclusion. The process of becoming is yours; it always was, and no one gets to tell you when it is complete.
References
Butler, J. (1990). Gender trouble: Feminism and the subversion of identity. Routledge.
hooks, b. (1984). Feminist theory: From margin to center. South End Press.
Menon, N. (2012). Seeing like a feminist. Penguin Books India.
Revathi, A. (2010). The truth about me: A hijra life story (V. Geetha, Trans.). Penguin Books India.
About the author(s)
Jasmine Kaur Maken is a second-year B.A. (Hons.) Political Science student at the University of Delhi whose writing explores the intersections of postcolonial theory and feminist scholarship. She is a published academic researcher and has co-authored work on constitutional morality and Indian legal history.
