Dhruti Kedilaya
Abstract: This article uses Saunders’ “containment” framework to examine India’s Transgender Persons (Protection of Rights) Amendment Bill, 2026. It shows how compulsory certification relegates identity to private, medicalized spaces while simultaneously sustaining public insecurity by inhibiting queer claims to identity safety and civic participation.
INTRODUCTION
There seems to be something almost cynical about laws that exist to be broken but are never enforced. For communities under their aim, it becomes a sadistic game of Russian roulette: the gun is always loaded but no one knows when it will fire. This arrangement is what Saunders diagnoses as the quintessential feature of anti-queer legal regimes across much of contemporary Asia.
In this article, I argue that ‘containment’ is a deliberate strategy through which governments manufacture insecurity within queer individuals, more specifically in the public sphere. Section I advances a theoretical mechanism that explains the causal connection between the ‘odd trinity’ and containment. It further elaborates on how containment succeeds in creating insecurity, even though statutes remain generally unenforced. Section II applies the theorised framework to the Transgender Persons (Protection of Rights) Amendment Bill, 2026, arguing that India’s movement towards compulsory medical certification relegates identity contestation to the private sphere while simultaneously creating insecurity through the fear of public policing.
SECTION I:
THEORIZING CONTAINMENT: HOW DO DORMANT LAWS DISCIPLINE SPACE?
Saunders observes a trend across contemporary Asian legal systems and coins it the “odd trinity”: a combination of (a) statutory criminal prohibition, (b) clear social disapproval, but (c) little police enforcement of the law, which work as three conjunctive cogs, rather than in silos. The question to ask is why a government would build this particular system over either (i) consistent enforcement, or (ii) outright repeal of the law. The answer lies in three clear incentives.
The first is avoidance, legislators (read, politicians) simply do not want the responsibility of taking a clear stance in a controversial debate they cannot control. The second incentive is disapproval, the queerphobic law is retained as the mascot of society’s moral attitudes. This again allows for the plausible deniability of politicians’ personal stance without the cost of justifying it.
The third is what Saunders calls ‘containment’, specifically of the issues society will have to deal with if a criminal law is repealed. I argue that merely because a statute is unenforced does not mean that it is inert. It instead provides a statutory lid, the removal of which allows for discussion (and possible progress) on a pandora’s box of other issues. Since rights as contested concepts are generally unravelled in the sequence of harm they cause to the affected community, if a legal system cannot even consider queer people as law abiding citizens, it is impossible for a leap in argumentation that goes straight to demanding extended rights such as set recognition in health insurance schemes or addressing indirect discrimination in employment. These broader sets of rights naturally accorded to cisgender heterosexual persons certainly aren’t on the horizon currently, and the dormant law keeps it that way.
As explained above, the mechanism is the odd trinity, the incentive is the ability to keep a ‘lid’ on queer issues, but what is the effect? In this regard, I argue that the intended effect is the creation of a stable pattern of public insecurity. If a statute’s coercive force does not depend on its enforcement, then it begins to depend on its presence as a permanent dormant threat. I theorise that there are two phases by which such insecurity is created and sustained.
The first phase creates this insecurity. When privacy, as a Western enlightenment tradition, gained traction, it inadvertently created an attitude that sexuality is (and should be) confined to private spaces. This is also evidenced by surveys in which a majority of respondents have no objection to queer people as long as ‘they do not flaunt their sexuality in public’. Therefore, creating insecurity in private is inconsequential since the unstated offer has become “We’ll leave you alone, if you leave us alone.”
However, both private and public spaces are heterogeneous, a space can be neither and both at the same time. Therefore, space as a concept becomes an arena that is subject to various (de)territorializing processes whereby control is claimed and challenged. Through this struggle, queer acts behind walls have been largely shielded from state intervention by the individualistic defence of privacy. The Catch-22 is that the privatisation of queer acts has inadvertently contributed to a territorialising spatial project that has successfully fortified the public-private binary. This is damaging because a strict manufacturing of spaces as ‘private’ essentially erects a boundary of relative non-interference that goes both ways: (i) the state cannot interfere in private spaces, (ii) queer individuals cannot interfere in public spaces. This has resulted in the containment of queer claims to private spaces.
The second phase works towards sustaining such insecurity. As a normative ideal, the public sphere is open to all, however it is much more restricted in practice. The existence of an anti-queer law (though dormant and unenforced) creates an omnipresent threat. If a deconstructive spatial tactic is attempted by the queer community, such as pride marches or performance art, the fear of potential violence is immense. This is because a dormant statute legally justifies and supports potential coercive action by enforcement authorities. The discretion lies solely with the authorities, who are unpredictable in their enforcement. In addition, the absence of reliable and consistent legal backing of queer peoples’ rights contains and restricts the ability for confident and recurrent shows of public excessiveness. The strict public/private distinction itself becomes a spatial practice that disempowers those who differ from allegedly neutral norms. Therefore, they cannot act with the same degree of autonomy or protection assumed by established models of democratic society. This directly causes a reduction in the vitality of the public sphere as a political site of contestation.
In conclusion, to achieve containment, governments have created a system for the creation and sustenance of public insecurity in queer individuals. In this sense, containment works by manufacturing diffidence rather than delivering any actual punishment. The broadening and isolation of private spaces have contributed to the containment of secure queer manifestations in public spaces.
SECTION II
PAPERS, PLEASE: THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) AMENDMENT BILL, 2026
Is there a place in the Indian nation for secure transgender persons identities? I argue not. The Indian government has adopted a strategy of containment through the Transgender (Protection of Rights) Amendment Bill, 2026. In India specifically, this dynamic is particularly evident because ruling elites are increasingly using majoritarian nationalism to solidify the sense of insecurity that transgender persons publicly feel with respect to identity determination.
In the landmark case of National Legal Services Authority (NALSA) vs Union of India (2014), the Supreme Court of India highlighted a clear distinction between social gender and biological attributes, leading to the acceptance that gender identity has more to it than just biological markers. It also identified that gender as an identity is more a function of “one’s self image and deep psychological or emotional sense of sexual identity and character.” The Transgender Persons (Protection of Rights) Act of 2019 further entrenched this by functioning as affirmative action, allowing for state recognition of extended rights. It can be argued that the purpose behind these legal reforms is to change the spatiality of transgender persons by making their identity self-perceptive, rather than a stereotyped and homogenized group.
The changes made in March 2026 through the Transgender (Protection of Rights) Amendment Bill completely alters the previously progressive trajectory. It modifies the concept of identification by substituting self-determination with compulsory medical certification. This results in the reduction of people who are formally accepted as transgender persons. Aryan Pasha, a transgender activist said “You have erased the identity and existence of trans men as if we do not exist. We were trying to explain that we are visible, and that we are here.”
There are three discernible effects of this adjustment from a containment perspective. The first is that the amendment does not account for people who self-identify. This brings into question the established rights of transgender persons individuals who have already been participating in their daily life under the security of the previous law. It contains their ability to freely enjoy their identity by making them insecure in two ways: (i) they are at risk of being publicly ostracized by their community and workplaces because their medical document may not match lived gender presentation; (ii) they may potentially be exposed to stringent police enforcement, especially with respect to document verification.
The second is surveillance by the Indian government. The law sets up medical boards that will determine whether someone can be legally recognised as “transgender”. This also means that medical facilities must not only gather, but also share information about individuals undergoing gender affirming care. This results in the containment of security that transgender persons feel with respect to their rights through the increased regulation of bodies over time. To avoid breaking the law, healthcare providers can increase costs or even completely withhold treatment. In the end, access to care becomes inevitably insecure, and it becomes a question as to whether someone will be able to access basic procedures. The right to make a choice regarding a consent-based medical procedure becomes completely uncertain.
The third effect functions by applying the mechanism highlighted in Section I. I argue that the contestation of rights is relegated to the private sphere through the medicalisation of records. The state creates a mechanism for a private process by which individuals can legally be recognised as a complete citizen. In fact, this becomes a pre-condition to free interaction in public. In the public sphere, if we assume dormant statutory enforcement, it would lead to an increase in intrusive questioning and social enforcement of gender norms. Since identity is no longer self-identifiable, individuals have to prove their gender through medical records. The statutory backing makes it easier for governments and enforcement authorities to publicly surveil people and their support networks. It can erode trust, causing formal (and informal) care networks to diminish. Furthermore, it causes insecurity in transgender persons individuals on being policed, by having their information used against them without their knowledge.
This inevitably leads to a situation where people lose faith in society over time. They are more willing to obey the law out of fear, rather than its normative value. Most importantly, they are less likely to organise themselves and say what they think in the public sphere. This substantially transforms the way people and the government work together and perceive the other.
CONCLUSION
In conclusion, containment is never passive. The odd trinity creates a system where even a dormant law creates a disciplining project, simply by being available. It is a deliberately created and sustained architecture of insecurity. The 2026 amendment transposes these arguments to the contemporary Indian context where transgender persons identities are converted into conditional and provable terms. Aryan Pasha’s insistence “we are here” is precisely what containment denies: a secure public existence.
To quote Seyla Benhabib, ‘the struggle to publicize something is a struggle for justice’. I do not argue that justice will necessarily be served when an issue is brought to the public sphere. It is, however, more likely to be served in a truly open debate where no affected or marginalised parties are systematically excluded. My argument is simply that everyone deserves a chance to create change for themselves.
Should every forthcoming queer movement be left to renegotiate public/private spatial boundaries in isolation? Or should this deeply sacralized division be radically rethought? I hope for the latter.
Dhruti Kedilaya is a 3rd Year BA LLB student at National Law School of India University, Bangalore