Introduction:
Transgender rights discourse has long centered on dignity, privacy, and bodily autonomy, with self-perceived gender identity treated as a constitutional baseline rather than a privilege to be earned. Yet procedural law, specifically the law governing physical search, has lagged far behind this principle. India’s search provisions, both under the erstwhile Code of Criminal Procedure and now under the Bharatiya Nagarik Suraksha Sanhita, remain structured around a strict male-female binary, with no statutory acknowledgment of a third gender despite its constitutional recognition since NALSA.
This paper examines that gap. The 2022 Ministry of Home Affairs guidelines on searching transgender persons in custody represented a genuinely progressive departure: search by a preferred-gender official, privacy during any strip search, and an explicit bar on using search as a pretext to “determine” someone’s gender. That framework respected self-perceived identity as defined under Sections 2(k) and 4 of the Transgender Persons (Protection of Rights) Act, 2019. The Transgender Persons (Protection of Rights) Amendment Act, 2026, disrupts this. By making a Section 6 certificate of identity the precondition for legal gender recognition and tying that certificate to Gender Reassignment Surgery or intersex status, the amendment indirectly destabilizes the search framework as well. If legal gender is now provisional on a state certificate, the question of who decides which official searches a transgender person, and on what basis, becomes considerably murkier for anyone without that certificate. This paper argues that the amendment’s certification regime doesn’t just create an economic filter on identity recognition; it also reopens the procedural vulnerability that the 2022 search guidelines had begun to close, leaving uncertified individuals exposed to exactly the kind of binary-coded, dignity-stripping search practices the guidelines were designed to prevent.
What is Search under Procedural Law?
Statutorily, Search is an investigative mechanism designed to further the evidentiary and criminal justice aspect of an investigation, which plays a vital role in establishing concrete proof against the accused. As per the Indian Criminal Procedure, it is dealt under three different provisions of the Bharatiya Nagarik Suraksha Sanhita:
- Section 185 Search by Police Officer – This provision grants the Police the jurisdiction and authority to conduct a search if there are reasonable grounds to believe items necessary for investigation are present in a spatial environment, without waiting for the grant of a Warrant from a Magistrate.
- Section 49 Search of Arrested Person – This provision governs the physical search of an Arrested person, immediately following their search when bail cannot be furnished. Any offensive items found are seized, precautionarily and the subsection (2), explicitly states that a female must be searched by a female, with regard to her decency.
- Section 53 Examination of arrested person by Medical Officer – Different from a Police search, this is a special and scientific body search by a medical professional, legally required to document based on any important visible injuries. Similar to Section 49, this provision also requires the examination to be conducted by a female professional for a female individual and vice versa for the male individual. In reference to a person of Third Gender, this type of search is generally preferred by the individual, in respect with their requested gendered professional. [MHA]
A physical search as per the Criminal Procedure, includes provisions that are inherently binary biased in nature. They have strict conditions as to a male being searched by male and a female being searched by a female, strictly regards to their decency. The new criminal procedure, exactly like the old procedure, fails to explicitly include or recognise a Third Gender, which formally, have recognition by law. The Supreme Court, in its judgment in the case National Legal Services Authority (NALSA) v. Union of India¹, delivered on 15 April 2014, explicitly recognized transgender persons as a “third gender, and entitled them to constitutional protections under Articles 14, 15, 16, 19, and 21². But they are still yet to be formally protected under the criminal procedural law, which highlights the gap between a decision and its practical implementation in the real world. Identities related to a trans, genderqueer, intersex, non-binary or genderfluid persons are beyond the scope of these provisions implicitly.
Search of a Transgender Individual:
As per the rules of the Ministry of Home Affairs, in January 2022, explicitly clarified how the Transgender Individuals are to be treated in Prison facilities. These rules explicitly defined the scope of Search for Transgender Individuals which is as follows:
“The search of a transgender person may be conducted by a person of their preferred gender or by a trained medical professional or a para-medic with necessary training on conducting the search. The person conducting the search must ensure the safety, privacy and dignity of the person being searched. At the stage where the search procedure requires stripping, it must be done in a private room or partition. The search procedure should be confined to compliance with security protocols and restriction of contraband and should not be aimed at determining the gender of the person.”³
This rule established a highly progressive and revolutionary framework, by respecting the dignity, decency and autonomy of the Transgender Individual. This grants the individuals, their own agency over their bodies, exactly how binary individuals enjoy it. It prevents and explicitly requires the person or professional conducting the search to ensure a minimally invasive way to ensure the search is appropriate to meet the ends of justice, while avoiding non-consensual examinations that are unfairly conducted to determine their gender. It respected the Individual’s self perceived Identity under the Section 2 (k) and Section 4 of trans act –
Section 2(k) states – “transgender person” means a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta” [4]
This rule has been proposed to be changed as per The Transgender Persons (Protection of Rights) Amendment Bill, 2026 which was introduced in Lok Sabha on March 13, 2026. It was passed by both Legislative Houses, but was challenged before a special Bench of the Supreme Court in Laxmi Narayan Tripathi v Union of India[5], currently officially pending to be heard. While the constitutionality of the Amendment Act has been challenged before the Courts, State Governments can make rules and orders to operationalise the Amendment Act to continue to recognise and protect the rights of transgender persons in their State.[6]
Comparative Models: Search Practice Beyond India
India is not alone in confronting the tension between binary search procedure and gender identity recognition. Examining comparable frameworks in the United Kingdom and the United States clarifies what is genuinely at stake when legal gender becomes contingent on certification.
In the United Kingdom, the Police and Criminal Evidence Act 1984 (PACE) Code C requires that any search involving intimate exposure be conducted by an officer of the same sex as the detainee, and it sets out the procedure for establishing a detainee’s gender for this purpose.[7] Even where a detainee expresses a preference, custody officers are directed to confirm the person’s legal sex through that same Annex L procedure whenever there is doubt or dispute. This illustrates that even a jurisdiction with a formal Gender Recognition Certificate regime still defaults to a documentary or biological standard of sex whenever an individual’s certified status is contested or absent. The parallel to India is direct: an uncertified individual under the 2026 Amendment has no settled legal gender for an officer to defer to, and search reverts, by default, to the Assigned Gender at Birth.
The United States offers a contrasting model. Federal Prison Rape Elimination Act (PREA) standards, codified at 28 CFR § 115.15, explicitly decouple search practice from legal or surgical gender status. A facility may not search or physically examine a transgender or intersex inmate for the sole purpose of determining genital status, and agencies that base search decisions purely on facility classification, without considering the individual’s gender identity, expression, or stated preference, are treated as non-compliant. This is, in substance, the model India’s 2022 MHA prison guidelines approximated: search governed by preference and dignity, not by a certificate or a surgical benchmark. The 2026 Amendment threatens to displace that model by reintroducing precisely the certification threshold the PREA framework was designed to avoid.
Systematic Vulnerabilities to Transgender Individuals:
As per section 4-7 of the Transgender Persons (Protection of Rights) Act, 2019, the individual has an inherent right to be recognized as a human first rather than their gender first, which can directly be linked to Article 21 – Right to Life and Dignity and the NALSA judgement undeniably granted the Right to Self-Perceived Identity under it by recognizing the existence of Third Gender explicitly. To bridge the gap between theory and reality by analyzing Section 6 – Procedure for obtaining a Certificate of Identity[8], procedurally allow for, leaving the verdict of identity to a District Magistrate, subjecting individuals to severe humiliation, misgendering, and systemic transphobia, falling between the cracks of procedural implementation. In Mulla Faizal v. State of Gujarat[9], the Court made distinction between intersex persons and transgender persons and placed an obligation on the authorities to change name and gender in birth certificates.[10]
While Section 3 of the Act[11], explicitly bans discrimination against such individuals, the legislative framework itself isolates trans individuals. Jane Kaushik v. Union of India [12]proves that statutory rights remain a “dead letter” due to state indifference and deeply rooted societal taboos. Considering the gender biasness of Section 53 and procedural gaps in certification issues as per Section 6 of the Act, it is not impossible to imagine the humiliation, embarrassment and abuse of identity that Trans Individuals have to go through. There is a legislative imbalance that feeds into the societal transphobic taboo, and isolates Trans Individuals, instead of being neutral. Custodial violence persists for minorities which includes Third gendered individuals, in Jayalakshmi v. State of Tamil Nadu[13], The Court ruled unequivocally that this was a case of custodial violence and there is no doubt that the physical and sexual abuse suffered by the victim at the hands of the police officers led to her suicide. National Crime Records Bureau (NCRB)[14] data shows an impossibly low number of registered cases under the Transgender Act, a statistic that directly shows a systemic refusal to file FIRs rather than an absence of crime, thus highlighting a police bias, to suppress documentation.
Critical Analysis:
The Amendment Act of 2026, promotes erosion of autonomy, by removing the provision for self perceived identity that was earlier respected as per the Court’s interpretation – to include ‘dignity’ under Article 21 of the Constitution as well as diversity in self-expression, which allowed a person to lead a dignified life. It placed one’s gender identity within the framework of the fundamental right to dignity under Article 21[15], now obtaining a certificate is mandatory to change your own assigned gender. This leaves individuals without a formal recognition of identity while awaiting certification and also subjects individuals to mandatory, non-consensual, gender determining medical exams for the purpose of obtaining this certificate, under the amendment act. This mandate, that determines gender, arose from the Legislative Intent to prevent misuse of Trans Identities, exploiting their Identities instead of protecting them, through emotional distress and legal vulnerability. It ends up institutionalizing systemic scrutiny against vulnerable groups.
The identity of Third Gender Individuals has now been narrowly limited to the individuals who can surgically undergo a Gender Reassignment Surgery(GRS) as well as the intersex individuals. This provision now cleverly removes the individuals who cannot afford this surgery. This can be termed as economic injustice being backed statutorily as well as by the system, because surgically altering one’s own body is preventively expensive and is classified under a cosmetic surgery rather than a healthcare procedure, which is exclusively outside most health insurances. When applied to search and custody, this economic filter carries a direct procedural consequence: an individual who cannot afford GRS, and therefore cannot obtain a Section 6 certificate, has no certified legal gender for officers to defer to under Sections 49 and 53 of the BNSS. Search practice for that individual reverts to the Assigned Gender at Birth default, precisely the outcome the 2022 MHA guidelines were designed to prevent.
Search, Custody and State Violence:
Trans identity has unfortunately now become a matter of economic convenience, and legally now those who can afford it will be issued recognition. This creates a clear legal segregation:
- The Wealthy: Can navigate private healthcare, afford surgical interventions, and legally purchase their true identity certificate.
- The Marginalized: Forced into the rigid binary label of their Assigned Gender at Birth (AGAB) due to a lack of resources, making survival an economic impossibility.
The Consequences of the procedural gap are not only abstract but the reality of the Search of a Transgender person will be significantly impacted now, the amendment act now encourages the statute to slip into its blatant binary bias, which strictly assigns and determines female and male or specific biologically-proven variations, the law deliberately systematically erases the fluid reality of transhood. This is likely to increase scenarios of abuse, assault, outraging modesty of trans people by the state machinery itself. The machinery that is supposed to protect the civilians, will now be legally allowed to twist the law in their favor. These laws also make it impossible for LGBT survivors of violence, to file complaints about their experience, without themselves being at risk, both because of the law itself, and due to the stigma it perpetuates. In Kokila Testimony Case[16] where a trans woman seeking help at a police station after a gang rape was instead subjected to hours of custodial rape by the police officers themselves. India’s general record on respecting international legal norms regarding protection against torture, and accepting international scrutiny on this issue, is poor. India signed the UN Convention against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT)[17] in 1997 and has as yet not ratified it. Attempts have been made to frame an anti-torture bill in India, but nothing has come close to passing. When torture is prosecuted, it is usually under existing provisions of the penal code, such as grievous hurt.
Conclusion:
In conclusion, This paper set out to trace how procedural search law in India has evolved and, more urgently, where it has stalled in its treatment of transgender persons. The 2022 MHA guidelines marked a genuine advance: search by preferred-gender personnel, privacy safeguards, and an explicit prohibition on using search as a gender-verification exercise. But this progress was always partial. Sections 49 and 53 of the BNSS continue to encode a binary framework, leaving transgender persons protected only by executive guideline rather than statute, a protection that can be administratively narrowed or ignored with far less friction than a legislative right.
The 2026 Amendment Act compounds this fragility. By conditioning legal gender recognition on a Section 6 certificate, itself gated behind GRS or intersex status, the law effectively reintroduces the binary at the point of search for anyone who lacks certification, or cannot afford it. An individual without a certificate has no settled legal gender for an officer to defer to, pushing search practice back toward exactly the assigned-sex default the 2022 guidelines tried to move away from. The result is a procedural regression dressed as administrative tidying: dignity in search becomes contingent on paperwork, and paperwork becomes contingent on income. If India is serious about extending the NALSA promise into everyday state encounters like search and custody, the guidelines protecting transgender persons need to be codified into the BNSS itself, not left as policy that can erode whenever certification status, or the amendment’s constitutionality, is in flux. Self-perceived identity, not certified identity, should anchor who searches whom.
[1] AIR 2014 SC 1863
[2] The Constitution of India, 1950, Art. 14, 15, 16, 19 & 21
[3]Treatment and Care of Transgender Persons in Prisons, 10 Jan 2022
[4]Transgender Persons (Protection of Rights) Act, 2019 (Act No. 40 of 2019)
[5] W.P. (C) No. 548/2026; Diary No. 20054/2026
[6]The Transgender Persons (Protection of Rights) Amendment Act, 2026: What can State Governments Do?, Vidhi Legal Policy
[7]PACE Code C 2023 (accessible version), GOV.UK,
[8]Transgender Persons (Protection of Rights) Act, 2019, Section 6
[9]MANU/GJ/1098/2000
[10] Transgender Equality: Court Decision on Transgender Rights in India, Centre for Law & Policy Research
[11]Transgender Persons (Protection of Rights) Act, 2019, Section 3
[12]2025 INSC 1248
[13]MANU/TN/8598/2007
[14]National Crime Records Bureau, Ministry of Home Affairs, Government of India.
[15]South Asian Translaw Database
[16]K.S. Bhoopathy and Others v. Kokila and Others(2000) 5 SCC 458
[17]Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85 (CAT)
