INTRODUCTION
The Transgender Persons (Protection of Rights) Amendment Act, 2026[1] marks one of the biggest steps backward for transgender rights in India’s constitutional history. It passed through the Lok Sabha on 24 March 2026 by voice vote and got the President’s approval on 30 March 2026.This amendment directly goes against the 2014 NALSA judgment that acknowledged transgender people as a third gender with the right to define their own gender identity. Though it is presented as a measure to “protect and support” transgender individuals, it actually creates more bureaucracy, limits the understanding of transgender identity, and brings back the medical approval system that the Supreme Court clearly rejected in NALSA. This analysis looks at the key parts of the amendment, the constitutional issues it raises, and the serious impact it has on transgender communities.
DEFINITION: FROM SELF-IDENTIFICATION TO STATE CLASSIFICATION
One of the biggest changes in the 2026 Amendment is the complete removal of Section 4(2) from the 2019 Act, which had clearly stated: “a person recognized as transgender under sub-section (1) shall have a right to self-perceived gender identity.”[2] This provision was a reflection of the Supreme Court’s 2014 decision that recognizing self-determination as a fundamental right under Article 21, not something given by the State. The Amendment replaces the broad, self-identification-based definition with a list of specific groups. The new definition includes only: (i) people with socio-cultural identities such as kinner, hijra, aravani, and jogta; (ii) eunuchs; (iii) people with intersex variations including variations in primary sexual characteristics, external genitalia, chromosomal patterns, gonadal development, or endogenous hormone production; and (iv) people forced into a transgender identity through mutilation, castration, or surgical/chemical/hormonal procedures. Importantly, the Amendment explicitly excludes trans-men, trans-women (whether or not they have had sex reassignment surgery, hormone therapy, or laser therapy), and genderqueer individuals who were included in the 2019 Act.
It also states that it will never include people with different sexual orientations and self-perceived sexual identities[3].
This exclusionary approach means that trans-men and trans-women not part of named traditional communities like hijra or kinner are not legally recognized. In practice, this creates a two-tier system where those from traditional communities get recognition while others are not seen at all.
MEDICAL CERTIFICATION
The Amendment brings back the medical approval process that the Supreme Court explicitly rejected in NALSA as not compatible with dignity and autonomy. Under the new system, an “authority” made up of a Chief Medical Officer or Deputy Chief Medical Officer appointed by the Union or State Government will be formed. The District Magistrate will issue a Certificate of Identity only after looking at this medical board’s recommendation. This requirement for medical certification is a big problem. First, it forces transgender people to go through invasive medical checks to prove their identity, which violates their bodily autonomy. Second, it gives state-appointed medical experts the power to decide if a transgender person’s identity is legally valid, which leads to more medical scrutiny and bureaucratic hurdles. Third, it goes against the 2014 judgment that said self-identification alone is enough and that no medical treatment is necessary. The medical board’s authority is essentially state supervision over gender identity, similar to the Criminal Tribes Act of 1871, which assumed transgender and gender non-conforming people were inherently criminal and required state-controlled registration. Amnesty International called this “denying transgender people the right to self-identify, a right firmly recognized by the Supreme Court in 2014.” The medical certification turns gender identity from an inherent part of being a person into something that needs to be checked and confirmed by the State.
NATIONAL TRANSGENDER REGISTRY
The Amendment sets up a National Transgender Registry that requires medical institutions to report information. This violates the right to privacy, which was established as a fundamental right in K.S. Puttaswamy v. Union of India[4] (2017), where informational autonomy was declared a basic right. Gender identity is deeply personal information, and the State forcing registration of it infringes upon the right to control one’s own personal data. The mandatory registration creates a permanent record of transgender identity that could be used for discrimination, surveillance, or social exclusion. Medical institutions must provide details about people who have had surgery to both the District Magistrate and the authority, creating a comprehensive database of transgender people’s medical histories. This level of state monitoring over gender identity is unique in personal life and violates the constitutional principle that privacy includes the right to control intimate personal information.
NAME CHANGE RESTRICTIONS
The Amendment states that transgender people can change their first name in the birth certificate and other official documents based on the certificate of identity. While this seems positive, it is actually problematic because name change now requires medical certification. Previously, you could self-identify and apply to the District Magistrate; now, a medical board’s recommendation is needed first. This adds another bureaucratic hurdle that may delay or prevent name changes for transgender people who can’t get or afford medical certification. The Amendment effectively makes legal recognition of gender identity dependent on medical verification and state approval rather than personal self-determination.
EXPANDED PENALTIES
The Amendment expands the list of punishable offenses from the 2019 Act, including penalizing “coercion into sex change.” While this may look protective, it could be used against the right of transgender people to self-determine their gender identity. The new penalty structure includes kidnapping a child and causing grievous harm to force transgender identity, which is punishable with life imprisonment and a minimum fine of 5 lakh rupees. However, the vague language around “coercion into sex change” could be misused to deny transgender people access to gender-affirming medical care or prevent families from supporting their transgender children’s identity. The expanded penalties create a chilling effect where transgender people may face harassment for asserting their right to self-determine their gender identity.
CONSTITUTIONAL VIOLATIONS
The Amendment goes against several key rights protected by the Indian Constitution. First, it harms the dignity, autonomy, and privacy of transgender individuals by requiring medical certification and mandatory registration. Second, it breaks the principle of equality under Article 14 by creating unfair distinctions between transgender people from recognized traditional communities and those who are not. Third, it weakens the protection against discrimination under Article 15 by removing the right to self-identify gender, which effectively removes safeguards against gender-based discrimination. Fourth, it limits freedom of expression under Article 19 by enforcing state verification of gender identity. The main question in this case is whether Parliament can remove a fundamental right that the Supreme Court has already recognized. In the NALSA case, the Supreme Court clearly stated that self-identification is a fundamental right under Article 21, not just a choice. The Amendment goes against this, raising the issue of whether the legislature can overrule the Court’s interpretation. Senior Advocate A.M. Singhvi[5] said, “The legislature cannot repeal a provision that gives real meaning to a fundamental right recognized by this Court without breaking Article 21.”
CONCLUSION
The Transgender Persons Amendment Act, 2026 marks a big step back in India’s progress towards protecting transgender rights. Although it is presented as a form of support and care, it strictly controls who is considered a transgender person, demands mandatory medical documentation, and undermines community structures. This Amendment brings back the bureaucratic checks that the NALSA decision had rejected, turning gender identity from a personal trait into something that must be approved by the state. The Supreme Court’s upcoming ruling will likely set the direction for transgender rights in India for the next ten years. Since the NALSA judgment clearly stated that self-identification is a fundamental right under Article 21, the Amendment is facing serious constitutional challenges. This case is a major constitutional test in Indian law, questioning whether Parliament can override a right that has been recognized by the Supreme Court itself.
Author(s) Name: Vilashini TK (Presidency University)
References:
[1] Transgender Persons (Protection of Rights) Amendment Act 2026
[2] Transgender Persons (Protection of Rights) Act 2019, s 4(1)(2)
[3] Ibid s 2(k)
[4] Justice KS Puttaswamy (Retd) and Anr v Union of India and Ors (2017) 10 SCC 1
[5] Laxmi Narayan Tripathi & Anr v Union of India & Ors WP(C) No 548/2026