Queer Essentialism, Judith Butler and the Indian Constitution

**Mayank Sinha

Introduction

In November 2023, the Supreme Court of India in Binu Tamta declined to mandate that the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 be interpreted to include LGBTQIA+ persons. The court justified its refusal by citing Article 15(3), which permits for protective discrimination when it relates to women and children. Almost two years later, in October 2025, the Apex Court compensated a transwoman who was terminated by two private schools over her gender identity.

This dichotomy opens a space to revisit how law constructs gender and how its essentialist assumptions about “womanhood” clash with the fluidity of queer bodies. The discourse on queer essentialism, viewed through Judith Butler’s concept of gender performativity, illustrates the instability of legal categories based on fixed or ‘biological’ understandings of gender. Queer essentialism is inherently contradictory within queer theory. It accepts the truthfulness of the biological binary through populism. Earlier feminist movements also grounded legal protection in biological womanhood and queer theory was successful at exposing how this reliance on stable or rigid categories results in exclusion and ghettoisation of identities.

This piece examines the role of queer essentialism in the discourse surrounding constitutional law in India, Butler’s disruption of the basis of gendered law, and the way Binu Tamta exposes the enduring nature of a particular kind of exclusionary argumentation that the law typically engages in.

Dangers of Queer Essentialism

 In law, essentialism operates through binary assumptions: male/female, victim/perpetrator, heterosexual/homosexual. The legal subject is conceived through these binaries, with little room for identity that resides in between or outside these categories. Binu Tamta was an example of this type of binary logic by treating the “aggrieved woman” as a closed, biologically determined category.

The dangers of queer essentialism are twofold. First, it naturalizes difference by turning social hierarchies into ontological truths. Second, it forecloses the possibility of understanding law as dynamic in the formation of identity. When the Court upholds a “women-only” protection regime by way of affirmative action, it is re-iterating the protectionist logic that was historically utilized to justify the exclusion of women from the public sphere.

The decision reveals a more profound philosophical tension within feminist and queer politics: the tension between protection and recognition. Feminist legal reforms begin a lot from protectionist frameworks designed to fix legacies of oppression. However, when protective frameworks become an end in themselves, they may exclude those who do not conform to the “protected subject” as the norm such as the Dalit woman.

Queer theorists such as Eve Sedgwick have cautioned against this politics of recognition, which relies on stable identities that law can name and regulate.  They argue that true inclusion instead relies on a politics of non-recognition, which asks law to recognize fluidity and avoid fixing meaning.

Reading Binu Tamta through Butler

Judith Butler’s influential text, Gender Trouble (1990), contested the notion that sex and gender are stable, natural classifications. In Butler’s view, gender is performative, shaped by reiterated acts, gestures and discourses, such that the experience of a stable identity is produced. The law in general, as one means of classifying gender, is one of the sites from which such a performance occurs. Gender becomes understandable, regulated and constrained through a mechanism of regulations such as the POSH Act.

In Butler’s view, therefore, the law is a totalising performative apparatus which produces and disciplines subjects. The “aggrieved woman” as conceptualised in the POSH Act is not simply a category; she is a performative construction, constituted through legal discourse. By refusing to extend protective measures beyond the legal construction of the aggrieved woman, the Court implicitly endorsed a regime whereby only those who perform femininity, and perform within the limits of social recognition, are entitled to claim a form of injury

If gender is something that individuals do and not something that individuals are, then Article 15(3) relies on an erroneous and fixed description of sex (as biological). Therefore, using Article 15(3) to make “special provisions for women” is flawed and inaccurate. Instead, special provisions must flex and shape to make concessions for the lives of those who have experienced gendered vulnerability prior to and after the act, whether they are assigned male or female.

 Examining Binu Tamta through a Butlerian lens exposes how exclusion is not just a lapse but rather an act of legal discourse that constitutes exclusion. Law produces subjects by naming them, and those who cannot be named are left unintelligible in the law. Butler calls this unintelligibility as violence because to remain unintelligible ultimately denies acknowledgment and, inevitably, humanity.

The violence of the law 

The “aggrieved woman” is the only subject that may be recognized as capable of an actionable harm, while the harms of others remain outside the law’s field of vision. Such selective acknowledgment reproduces hierarchies of humanity, some harms worthy of a remedy, while the pain of others is left to sit in silence.

While the violence perpetrated by interpretation  does not always exhibit itself explicitly through coercion, it more frequently emerges in the “epiphenomenal form of juridical categorisation”.  Each time the executive, or legislature, or the judiciary will delineate “who” is entitled to protection, it enacts a demarcation between those who are rendered intelligible and inviolable under the law, and those who are marked as unintelligible and left subject to the violence inherent in the law.

 Although cases like NALSA v. Union of India (2014), Navtej Singh Johar v. Union of India (2018), and Deepika Singh v. Central Administrative Tribunal (2022) are celebratory and seem liberatory, each returning to an essentialist grammar of identity. The Trans Act reduces self-identification to an administrative act; Navtej places sexuality in privacy, maintaining a heteronormative public space; and Deepika Singh recognizes non-normative families only to the extent they reflect normative family form. Hence, even cases one might think of as progressive are operating through the logic of containment, recognizing difference only if it can be made legible through the State’s moral and institutional order.

Every judgment that seems to “liberate” simultaneously establishes normative disciplinary channels, instructing how queerness must look to be protected.

Conclusion

Coming back to the case of Jane Kaushik v. Union of India, which ruled that a financial award was appropriate compensation for a violation of law prohibiting discrimination based on gender identity falls short of undermining categories. While financial remedy is a positive sign of accountability, it is not remotely sufficient. Queerness is more than a financial remedy; it is about the acknowledgement of the systemic bias that legitimates the normalization of such exclusion. The ruling frames the violation of law as an isolated act; rather than a symptom of how the law continues to misinterpret and narrow gender itself. Real accountability would require the law to confront that structure, not merely compensate for the impact.

Judith Butler brings to our consideration the notion that because one performs gender, it has no essence but only repetition, resistance, and re-signification. The Indian Constitution is also performative. Queered, it provides some hope to undermine essentialism, provide expanded protection, and honour the humanity of people of all bodies and identities. Ultimately, the question is not if the law recognizes everyone, but whether it is willing. 

**Mayank Sinha is a student of NLU Jodhpur.

Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.