Gender wars

The progress made by gay and lesbian activists has not adequately advanced transgender rights, with divisions growing within the LGBTQ+ community and increased anti-transgender legislation, writes Kanav Narayan Sahgal.

It is indeed unfortunate, though not surprising, that the progress made by gay and lesbian activists over the past decade regarding the legalisation of same-sex marriage has not significantly advanced the interests of transgender people in the United States and the United Kingdom. Groups such as the LGB Alliance and the Log Cabin Republicans have emerged, either explicitly or implicitly, excluding the “T” from their broader LGBT advocacy agenda. The “we support the LGB but not the T” approach has been complemented by a spate of anti-transgender legislation and rhetoric that has intensified over the past few years, reaching an apparent peak when US President Donald Trump issued a sweeping executive order recognising only two genders as part of the federal government’s official domestic policy on January 20, 2025.

On the other side of the Atlantic, the UK Supreme Court issued a landmark ruling nearly three months later, holding that the legal definition of “woman” in the Equality Act 2010 would apply only to biological women and not transgender women with gender recognition certificates. Interestingly, this case was brought forward by a women’s and children’s rights group called For Women Scotland, and was also supported by lesbian rights groups such as The Lesbian Project and the aforementioned LGB Alliance, showing just how deep the divisions within some women’s and LGBTQ+ rights groups are. In the UK case, we observed competing considerations of equality, with one bloc holding that denying transgender people access to spaces that aligned with their gender was a denial of equality, while the other held that sex itself was a biological fixity, and hence transgender women couldn’t be deemed women at all, let alone be entitled to access women’s spaces.

To resolve this question, the UK Supreme Court had first to define a woman, and did so by emphasising biology rather than identity. Claims of only two sexes — male and female — have existed for centuries despite evidence to the contrary. In her seminal book Seeing Like a Feminist, Nivedita Menon describes how the existence of people with a range of atypical chromosomal configurations beyond the XX and XY designs, as well as individuals with variant genital conditions, such as those born with intersex conditions, confounds the idea that sex can be definitively classified as either “male” or “female” for every person on Earth. Furthermore, the presence of Hijra, Jogappa, and Aravani communities in India; Kathoey people in Thailand; Metis in Nepal; and Fa’afafine in Samoa, to name just a few, shows that gender variation is a social reality that cuts across borders, cultures, and periods. Hijra communities, for instance, have been referenced in Sanskrit texts dating back to the 7th century BCE. But those who oppose the gendered construction of sex would argue that even if these configurations do exist, they are essentially ‘made up’ and not worthy of government recognition. Here, I would caution critics of this view, specifically those sympathising with the “LGB but not the T” cause, for one major reason: Not very long ago, the definition of family was held to be a union strictly between a man and a woman. The call for the legal redefinition of family by same-sex couples was immediately challenged by a similar premise: that “family” could lose its meaning if the government were to recognise same-sex adult relationships as analogous to opposite-sex adult relationships. “Family,” like “sex,” has long been viewed as an immutable social fact antithetical to fluidity. But we know now that this is simply not true. Families are diverse, multifaceted, and dynamic, and same-sex families are certainly not ‘made up’ configurations legally unworthy in comparison to their heterosexual counterparts. Why should we then say that transgender people’s lived realities are any less real?

And yet, some might still argue that recognising “sex” as fluid could collapse all major categories, even marriage (after all, if a man can become a woman, then what even is “same-sex marriage”). But this is a wrong framing of the issue. The very existence of transgender people does not pose a threat to same-sex couples’ rights; this is a mischaracterisation not very dissimilar to the kind posited by anti-same-sex marriage crusaders, who believed that the legalisation of same-sex marriage would wreak havoc on the existing heteronormative institution of family. Rather, the issue at hand is whether, at a fundamental level, we can accept the empirical truth of the many people and communities around us who demonstrate, through their lived and embodied experiences, that “sex” is far from being a fixed, biological construct. And if we do accept their truth, then the question of exclusion becomes moot.

Through her authoritative scholarly work over the decades, Judith Butler has repeatedly clarified that not only is gender a performance, but that our understanding of sex is also not rooted in finality. After all, what is “sex”? It is but one dominant paradigm rooted in a medico-legal system that has itself changed its position multiple times. For instance, not very long ago, the medical community considered homosexuality to be a pathological illness and an unnatural aberration of human sexuality. Today, these ideas are largely dismissed as bad science by most leading experts. Similarly, gender dysphoria was recently declassified as a “disorder” in the 5th edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). The DSM-5 further clarifies that “sex” and “gender” are not the same.

The Supreme Court of India has upheld this reasoning in many of its judgements on LGBTQ+ rights, with the NALSA judgement of 2014 being perhaps the most notable. It unambiguously recognised transgender people’s fundamental right to self-identify their chosen gender. Furthermore, in the marriage equality case of 2023, the Supreme Court reiterated its position on the “gender” and “sex” debate by unequivocally affirming that “sex” and “gender” could not be conflated as being the same. For Indian law, therefore, there are currently three official genders: male, female, and transgender. Any departure from this development towards a rigid — and frankly, unscientific — “two-gender” framework would be both blatantly unconstitutional and very wrong.

(The author is a communications manager at Nyaaya, the Vidhi Centre for Legal Policy and can be reached at [e-mail])