Sanidhya Kapoor
Abstract: This piece argues that the Transgender Amendment Act, 2026 undermines its own aim owing to the drafting inconsistencies in Section 18. The narrow ‘against the will’ standard fails to reach enlisted non-coercive triggers while lack of intent qualifiers risks overbreadth. The piece suggests targeted redrafting to ensure effective protection.
(Keywords: Transgender Rights, Consent Standards, Criminalisation, Gender Identity, Statutory Interpretation)
Introduction
The stated aim of the Parliament in introducing the Transgender Persons (Protection of Rights) Act, 2019 was to define transgender persons, prohibit their discrimination, confer upon them certain rights, and provide for their general upliftment. To further this protection in the Transgender Persons Amendment Act of 2026, the section containing offences and penalties (s.18) has been expanded to include new categories of crimes such as kidnapping and compelling assumption of transgender identity, which were not present in the original Act. This piece contends that these new provisions are poorly drafted such that they simultaneously under-criminalise the exploitation Parliament sought to reach, and over-criminalise helpful conduct. This makes the Act a sort of ‘paper shield’ that fails to fulfil what it initially promised.
Chiefly, this piece argues that three related problems lead to inefficiency in the new Act. First, s.18(g) uses ‘against the will’ as its harm standard. This is demonstrably narrower than the ‘without consent’ standard in Indian criminal law, and one that may fail to reach exploitation through inducement, which is precisely what Parliament identifies in the Statement of Objects. Second, s.18(c) and (g) use phraseology without a proper intent qualifier, creating overbreadth that could fall on support workers and community organisations. Third, s.18 criminalises a behavioural conception of transgender identity that sits in tension with the NALSA framework, and leads to ambiguity.
‘Against the Will’ vs ‘Without Consent’
While in common parlance the words ‘consent’ and ‘will’ may be used interchangeably, they are distinct legal terms. In State of UP v Chhoteylal, the SC held that ‘against the will’ only includes cases with express resistance or opposition, whereas ‘without consent’ also captures submission without genuine agreement even where no resistance was offered. Absence of will is therefore a subset of absence of consent. Every act against the will is without consent, but not every act without consent is against the will. Put simply, if a person visibly resists – it would mean will is being overridden. However, if no such resistance is seen and one complies due to luring or persuasion, it only vitiates consent, not will. The same issue had been discussed in using an ‘against the will’ framework in s. 375 of the IPC (s.63 of BNS). Therein, this formulation was changed precisely due to its inadequacy in capturing coercion that operates without active resistance.
Section 18(g) of the proposed amendment criminalises compelling a person to present as transgender through ‘force, threat, coercion, allurement, deception, inducement, or undue influence.’ However, this liability is conditioned on the act being carried out ‘against the will’ of such a person. This formulation is internally self-defeating since allurement and inducement are precisely the means by which consent is vitiated without will being overridden. They belong conceptually in a ‘without consent’ framework because they work by manufacturing apparent willingness. Despite this, s.18(g) pairs these non-coercive triggering means with ‘against the will’ as the harm standard. Therefore, the triggering list contemplates situations where the person obeyed willingly but was manipulated, while the harm standard requires that they did not obey willingly at all. For instance, consider a case wherein someone offers a destitute person money on the condition that they publicly identify and dress as a transgender person, and they comply without opposition. This, by definition, is inducement. Under a ‘without consent’ standard, the inquiry asks whether the agreement was real. In this case, consent was not truly free and would be vitiated. Under s.18(g)’s ‘against the will’ standard, however, the same facts would likely fail as there was outward compliance without resistance. Acquiescence would register as an exercise of will despite inducement. Therefore, under s. 18(g), the means enumerated and the standard of liability are in direct tension with each other.
The evidentiary difficulties compound this problem. Will is harder to establish than consent, since it is purely subjective and internal. It has no statutory framework governing what evidence establishes or negates it in this context. A victim who did not physically resist, accepted money, or continued living within the group after initial coercion will struggle to demonstrate that the act was against their will. This evidentiary gap provides the accused with a ready-made defence. Since Indian law does not treat allurement or inducement as negating will, this defence is not merely plausible but structurally sound.
Since s.18(g) is susceptible to failure on the will standard, prosecutors may fall back on general BNS provisions surrounding kidnapping, wrongful confinement, or trafficking offences under other statutes. However, these provisions do not treat the conjunction of forced identity assumption, bodily harm, and economic exploitation as a unified wrong. Consequently, the wording of the specialised provision leaves open the very protection gap the bill intended to close.
The drafting inconsistency within the bill further confirms the gap. Sections 18(e) and 18(f), dealing with kidnapping of adults and children respectively, use the disjunctive formulation ‘against the will or consent.’ Section 18(g) omits ‘or consent’ without apparent reason, excluding a large number of victims. Applying the principle of expressio unius est exclusio alterius (the express mention of one thing implies the exclusion of another) creates a presumption against courts interpreting s.18(g) to include consent. This is because the immediately preceding clauses, added in the same Amendment, use a consent framing. Thus, courts cannot easily treat the omission of ‘or consent’ in s.18(g) as a stylistic accident. Rather, it reflects a deliberate narrowing.
This is further reaffirmed by the definitional inconsistency in the Act. As per s. 2(k)(ii), a transgender person is defined as a person who is ‘either with or without consent compelled to assume, adopt, or outwardly present a transgender identity.’ Here a consent standard has been adopted. This means that a person allured or induced into assuming a transgender identity with their formal consent may be defined as a transgender person under the Act. On the other hand, the person who induced them into assuming such an identity may not satisfy s.18(g)’s ‘against the will’ requirement.
The Possible Criminalisation of Helpful Conduct
Section 18(c) of the Principal Act is largely unaltered in the Amendment. However, a minor change has created a significant interpretational issue. Earlier, the offence was a composite offence, and functioned only in conjunction with s.18(d) which required the accused to harm, injure or endanger the life, safety, health or well-being of the transgender person. In the amended Act, s.18(c) functions as a standalone offence. The section has become self-contained with no additional requirement of harm or injury. Thus, the section now makes it an offence to simply ‘force or cause’ a transgender person to leave their household, village, or place of residence.
Literally interpreted, ‘force’ is a more coercive term, whereas ‘cause’ is not. Without an explicit intent qualifier or consent requirement, ‘cause’ seems capable of capturing a social worker who helps a transgender person leave an abusive household, a shelter that facilitates relocation, or a community organisation that supports someone fleeing family violence. The provision, therefore, is at risk of being weaponised against anyone who comes out in support of a transgender person including friends, family, support networks, and communities.
In Indian statutory law, the word ‘cause’ does not import any compulsion standard. Take the instance of phrases such as ‘cause grievous hurt,’ ‘cause death,’ ‘cause mischief’ etc. within the BNS. In each case, ‘cause’ simply means to bring about a result, with the coercive quality supplied by separate words like ‘voluntarily,’ ‘intentionally,’ or ‘knowingly.’ If the language is clear and unambiguous, courts generally do not read in elements that aren’t there.
The contention here is not that the courts will necessarily read the word ‘cause’ broadly and convict social workers. The problem instead is that the provision enables the possibility of their prosecution. Without a clear statutory safeguard, this may create a chilling effect on such conduct. This concern continues until amendment or clarification by courts, leaving many in need of help without recourse.
A similar concern arises in the context of queer affirmative therapy which supports clients in affirming and claiming their gender identity. It often involves encouraging one to adopt outward presentations such as clothing or mannerisms. However, as per section 18(g)(i), compelling any person, whether or not such person is a transgender person, to dress, present, or conduct themselves outwardly as a transgender person against their will is criminalised. It may be argued that the phrase ‘against the will’ would remedy any concern here as affirmative therapy occurs with the client’s agreement. However, the same is not always true and clients often show resistance during affirmative therapy and sustained persuasion is required. As demonstrated earlier, in case someone forces an act despite active resistance, it clearly overrides will. This would mean that if a client shows slight hesitation also, a therapist providing sustained encouragement toward outward gender expression is capable of being penalised. Without an explicit intent to harm qualifier, a chilling effect is created for a clinician who therapeutically affirms a client’s self-identified gender.
The Undefined Outward Presentation
Section 18(g) criminalises compelling a person to ‘dress, present, or conduct themselves outwardly as a transgender person.’ This is a purely behavioural conception of transgender identity. It locates the harm in outward presentation rather than in any biological, medical, or social condition. However, neither s.18(g) nor any other provision of the Act defines what ‘outwardly presenting as a transgender person’ actually means in behavioural terms.
As per NALSA, identity is internal, not merely determined by physical or presentational marks. Therefore, a provision that criminalises compelling outward presentation sits in tension with the NALSA framework. Conflating the two can be extremely detrimental. Primarily, it reduces a deeply internal identity to a sort of costume that can be ‘put on’ by external compulsion. Secondly, it implies that a person becomes transgender through presentation. This inverts the logic of NALSA entirely – under which presentation is only a reflection of identity, not its source. Thirdly, this risks treating any gender non-conforming clothing or behaviour as inherently ‘transgender.’ This can end up stereotyping the community and homogenising enormous internal diversity.
The lack of guidance on what outward presentation as a transgender person actually looks like makes the breadth of s.18(g) unclear. Does compelling a person to wear certain clothing suffice? Does it require presenting as a specific socio-cultural category like hijra or kinner? For instance, if someone asks a cisgender man to simply wear a saree or bangles in public, it may or may not be counted as ‘presenting a transgender identity.’ On one reading, NALSA itself distinguishes gender identity from clothing choice. The person himself and everyone around him may never think of him as transgender at all. Although, under a separate interpretation, gender non-conforming dress is one of the many markers of transgender identity. Every such allegation would then require a court to decide, without guidance, whether a given act of dress or component counts as ‘presenting transgender identity.’ Such a provision leaves prosecutors, accused persons, and courts with no workable standard.
Section 2(k)(ii) also identifies transgender as someone compelled to assume or ‘outwardly present a transgender identity’ through surgical, chemical, hormonal procedures, or otherwise. Here too, the exact meaning of the phrase ‘outwardly present transgender identity’ remains unclear. The addition of ‘or otherwise’ adds to the vagueness of the definition. This compounds the problem significantly as even the definition of transgender becomes unclear.
Sections 18(e) and (f) deal with kidnapping followed by physical procedures such as mutilation, castration, hormonal intervention. These are the medically defined harms that correspond to the definitional framework in s.2(k). Section 18(g) then criminalises a separate category, compelling presentation without any necessary physical procedure, but the Act has no definitional framework for what that presentation means. The result is that certain offences in s.18 are anchored in the Act’s own definitions while s.18(g) floats free of them entirely, creating an undefined and potentially arbitrary standard.
Proposed Solutions
The textual problems identified above are ones that targeted redrafting could help resolve. A few changes would go a significant distance.
First, the current criminalisation of forced outward presentation in s. 18(g) should be reconceived. To protect the community effectively, s.18 should be amended to criminalise compelling a transgender person to suppress, conceal, or alter their gender expression against their will or consent, eliminating the vagueness and the inconsistency with NALSA simultaneously.
In doing so, it is necessary that the phraseology ‘against the will or consent’ is used instead of mere will as in the present s. 18(g). This would ensure that non-physical means of coercion are included and would bring the section in line with s. 18(e) and (f) and s.2(k)(ii).
This redrafted version of s.18(g) will also resolve the affirmative-therapy concern identified earlier in the piece. Affirmative therapy aims at helping a client accept their own gender identity. It is an act of self-directed adoption. Thus, post redrafting, a therapist encouraging one to dress or conduct themselves in accordance with their identity, even if through sustained persuasion, will be permitted as it furthers self-identification. By contrast, if a family member pressurises someone into concealing their gender identity by dressing only in accordance with social norms, it violates the right to self-expression enumerated in NALSA. Such conduct will be criminalised under the redraft as forcing suppression. To further ensure that well-intentioned conduct such as someone suggesting concealment to prevent violence does not get criminalised, an intent qualifier such as ‘with intent to harm or exploit’ must be added. Such a redraft would then only criminalise exploitative concealment of identity rather than positive acts of affirmation.
Second, adding an explicit intent qualifier such as ‘wrongfully causes’ or ‘with intent to exploit’ to s.18(c) would place support structures clearly outside the provision’s scope without depending on judicial interpolation.
Third, returning to the self-determination-centred definition affirmed in NALSA would remove vagueness of the definition in section 2(k)(ii) created by the phrase ‘outward presentation’ and would align its vocabulary with the recast s.18(g)’s framing around gender expression. Transgender persons should thus continue to be defined to include ‘any person whose gender does not match the one assigned at birth’, regardless of whether they have had affirmative surgery.
The Act requires significant alteration to move beyond mere formal protection and deliver rights that are effective in practice.
Conclusion
The Transgender Amendment Act of 2026 is riddled with issues which make the Act function as a significant retreat from NALSA. Moreover, a concerning trend of inherent contradictions can also be identified in the Act. The Parliament had identified real and serious harms in the Statement of Objects of the Principal Act. These legislative objects were legitimate and worth protecting through statute. The amendment enacted to address those harms, however, contains drafting problems that undermine their protective purpose at the core.
The first problem identified was an overly narrow harm standard in s.18(g), failing to capture exploitation via inducement or allurement. This can be resolved by recasting the section around compelled suppression, judged against a ‘will or consent’ standard. Secondly, the absence of intent qualifiers in ss.18(c) and (g) exposes support workers to liability. Adding an explicit intent qualifier is therefore required. Third, s.18(g) uses a behavioural and undefined conception of transgender presentation that contradicts NALSA. Anchoring the definition in s.2(k)(ii) to self-identification, rather than outward presentation, resolves this problem.
Allowing the identified problems to persist affects the operative core of the Amendment Act’s penal structure. These issues are not minor drafting errors but have significant implications for the lives of the people who are part of the transgender community. A statute that narrows the class of persons it protects while simultaneously weakening the provisions that protect them is not a reform. The 2026 Amendment is a retreat masking itself behind a supposed protection framework. The suggested alterations are capable of making the Act workable and able to provide effective rights for the Transgender community instead of mere formal ones. It is necessary that these structural failures are remedied by the Parliament expeditiously.
Sanidhya Kapoor is a second year B.A. L.L.B. (Hons.) student at National Law University, Delhi.