Transgressionary state: Transgender Amendment Act is a step back on freedom, democracy and growth

Transgender Persons (Protection of Rights) Amendment Act dilutes rights seriously enough to attract adverse commentary from Rajasthan High Court and Supreme Court's advisory panel on transgender rights. This is part of public discourse. What is not widely discussed is the harm the Act's attack on individual autonomy and personhood does to economic growth and development.

Pretence must end that the law affects only the LGBTQIA+ community, that it does not directly affect the heterosexual majority, the nation as a whole, or its aspiration to secure growth and development. 'What was recognised by the Supreme Court as an inviolable aspect of personhood now risks being reduced to a contingent, state-mediated entitlement,' wrote Rajasthan High Court's Justice Monga about the amendment Act's removal of transgender persons' right to determine their own gender status.

Self-determination of gender is out of the window. Multilayered medical boards must examine genitalia of those who wish to assert their transgender identity, and their assessment must get the district magistrate's endorsement, before a person is recognised by the state as transgender.


This embodies and perpetuates the mistaken conflation of gender with sex. Sex has its basis in biology, and is not always binary. Gender is social and psychological identity. Medical boards have little expertise in gender and DMs have neither expertise nor time, in the middle of all the diverse functions he oversees as the nerve centre of governance at the district level.

Suppose a medical board fails to recognise an individual's claim to being transgender. The law then criminalises the individual's associates as those who imposed this identity on that individual - whether it was in the form of human solidarity, financial support, or medical, surgical or psychological intervention. These associates can be sent to prison for up to life.

As transgender activists have pointed out, crimes committed against transgender people go unpunished. But now, those who help transgender people stand to be prosecuted and put behind bars for long periods.

This is an attack on individual liberty and one more weapon in the state's armoury to be used to control society. Such curtailment of freedom is inimical to the flowering of human creativity, whether aesthetic, cognitive or entrepreneurial, and harmful to growth.

In Development as Freedom, Amartya Sen sees freedom as development's end as well as means to that goal. Development is not just economic growth, skyscrapers, fast trains, high fashion and billionaires signalling virtue through philanthropy. Development is expansion of human agency, ability of people to live the lives they value.

Sen identifies interconnected freedoms that promote development:

• Political freedom: Civil rights, democracy, freedom of speech and transparency in governance.
• Economic freedom: Participation in trade, production and credit.
• Social freedom: Access to education, healthcare and public facilities.
• Freedom from economic insecurity: Social safety nets such as unemployment benefits and famine relief.

Not that this is a blinding new insight from the Nobel laureate. When Nehru identified the basis of India's tryst with destiny as ending poverty, ignorance, disease and inequality of opportunity, he pretty much said the same thing.

While Sen emphasises individual empowerment, the actual case of effective empowerment to achieve a modicum of freedom from assorted social, economic and political deprivations has materialised through collective action - as through peasant mobilisation to secure land reforms, popular struggles and agitational politics to make government spend enough on schools and healthcare, for example, in Kerala.

The natural tendency for the state is to stay biased towards incumbent elites, and against attempts to change power equations in society, even if such change is being demanded to secure the very goals the Constitution of democratic India sets for the nation. Enhancement of power of the state over the people is inimical to expansion of political, economic and social freedoms that produce growth and prosperity.

How does this square with the lived experience of authoritarian governments presiding over fast economic growth, whether in Nazi Germany, Indonesia under Suharto, South Korea under its authoritarian rulers before 1987, Taiwan under the Kuomintang, and China under the Communist Party?

Nazi Germany collapsed into ruin and rubble. Indonesia and South Korea grew out of authoritarian rule and achieved democracy. So did Taiwan. The fact that China is still authoritarian doesn't mean that it would be forced to become democratic, if growth is to sustain.

China might be ruled by a party that calls itself communist. But the economy is capitalist, with minimal rights for workers and common people. Control of the state comes twinned with support under carefully-crafted industrial policy, and so growth has materialised and sustained. But cancellation of Ant Financial's planned IPO at the last moment, and its founder Jack Ma's virtual exile, show limits of entrepreneurial freedom in China.

Singapore and Dubai are full of Chinese entrepreneurs exercising the freedom they are stripped of back home. For them to channel their entrepreneurial energy at home, China will have to break out of the integument of authoritarian control exercised by the Chinese Communist Party.

India's goal is to strengthen its democracy, not to erode whatever little it has. The Transgender Act is a step back on freedom, democracy and growth.