Unpacking transgender rights

“Can you provide a definition for the word ‘woman’?”

When Republican Senator Marsha Blackburn asked the then–DC Circuit Court Judge Ketanji Brown Jackson this question at her confirmation hearing for a seat on the United States Supreme Court in 2022, Jackson replied (with some hesitation), “I am not a biologist.”

This should come as no surprise, for this very question has long preoccupied scholars, lawyers, writers, philosophers, activists, and lawmakers alike. Early thinkers like Aristotle and Plato viewed women as inherently inferior to men, relying on naturalist assumptions about their supposed incapacity for reason or leadership. Simone de Beauvoir challenged these assumptions in her magnum opus, The Second Sex, arguing that distinctions between the sexes were socially—rather than naturally—constructed. Yet like many early feminist theorists, she conceptualised gender within a limited binary framework.

Gender not fixed or innate

Scholarship on queer and non-binary identities emerged relatively later, with Judith Butler’s work on gender performativity standing out as especially influential. In the book, ‘Gender Trouble’, Butler demonstrated that gender was neither innate nor fixed, but rather something enacted—a series of repeated performances shaped by social norms and expectations.

And yet, naturalist conceptions about gender persist in contemporary political thought. In April 2025, the UK Supreme Court issued a landmark ruling that held that the term “woman” in the Equality Act 2010 did not include transgender women. This ruling followed Donald Trump’s second presidential victory, during which attacks on the transgender community became both frequent and central to the Republican Party’s platform.

In January 2025, just hours into his first day back in office, President Trump signed an executive order declaring it official US policy to recognise “only two sexes, male and female,” further asserting that these sexes were fixed, immutable, and “grounded in fundamental and incontrovertible reality.”

What do these developments tell us? They show that in many parts of the West, transgender people continue to be excluded—either by omission or active resistance—from legal and policy frameworks meant to otherwise include them. Even in Canada and the EU, backlash is growing: public opinion on transgender rights is divided in Canada too, while far-right movements in the EU continue to frame gender diversity as a threat to national identity. What we’re witnessing, therefore, is not hesitation, but a deliberate global rollback of hard-won LGBTQ+ rights.

India’s principled stance

In this broader context of shrinking protections and rising hostility, India’s jurisprudence on transgender rights stands out as surprisingly principled. In 2014, the Supreme Court of India formally recognised the “third gender” as a distinct legal category and unequivocally affirmed transgender individuals’ right to self-identify their gender, along with their entitlement to full constitutional rights.

More recently, in Viswanathan Krishna Murthy v State of Andhra Pradesh, the Andhra Pradesh High Court held that transgender women in heterosexual marriages could be legally recognised as “women” for the purposes of invoking protections under laws that traditionally apply only to cisgender women; a position that stands in stark contrast to the view taken by the UK Supreme Court months earlier.

Interestingly, the Andhra Pradesh High Court arrived at this conclusion by relying on the Supreme Court of India’s 2023 marriage equality ruling, which denied same-sex couples the right to marry yet affirmed transgender individuals’ right to enter heterosexual marriages. Holding that denying a transgender woman legal status as a “woman” under Section 498-A of the IPC based on her reproductive capacity is discriminatory, the Court said: “Such a contention, therefore, deserves to be rejected at the outset.”

To be clear, transgender people in India continue to face challenges with the law. For instance, the Transgender Persons (Protection of Rights) Act, 2019, India’s primary legislation governing transgender rights at the national level, still subjects transgender individuals to a burdensome bureaucratic certification process in direct violation of the Supreme Court of India’s 2014 ruling, which affirmed transgender people’s right to self-identify their own gender. Petitions challenging these and other provisions have yet to be heard by the Supreme Court. Despite that, in a global political climate where transgender rights are being rolled back at a disheartening pace, it is encouraging to see judgments like Viswanathan Krishna Murthy affirm transgender people’s dignity and right to equality. As the law tightens its noose around transgender lives, one can only hope that lawmakers and judges listen with greater intent and empathy to the plurality of gendered experiences. As Simone de Beauvoir once wrote, “I am a woman; on this truth must be based all further discussion” — may we take this as an opening to defend our freedom to define ourselves beyond imposed categories.

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