From Self-Identification to State Verification: A Critical Analysis of the Transgender Persons (protection of Rights)Amendment Act, 2026
The Transgender Persons (Protection of Rights) Amendment Act” introduced major changes in the original act of 2019 which caused it to drift even farther away from the constitutional principles laid down and the guidelines passed by the SC in the NALSA judgment.
INTRODUCTION
Over the last decade, constitutional acceptance of gender identity has gone through significant changes in India. In the NALSA v. Union of India (2014), the Supreme Court of India (“SC” or “the court”) recognized that self-identification is a part of dignity, autonomy and personal liberty and constitutes a fundamental right under the Constitution of India.1 This was codified in the Section 4(2) of the Transgender Persons (Protection of Rights) Act, 20192 and the Parliament deleted it via the recently introduced the “Transgender Persons (Protection of Rights) Amendment Act of 2026”. 3 This change fundamentally reshaped India's statutory framework for gender recognition and because of this, what was once a matter of personal declaration is now contingent on a medical board's approval.
The previous provisions of the Act had received several criticisms for including state-administered certification measures that went against some aspects of NALSA guidelines, however, the recent Amendment marks a significant shift towards greater state involvement in determining and validating gender identity.
This Amendment has raised serious concerns regarding both its procedural legitimacy and its constitutional validity. In this paper, the author attempts to explore these problems and provide an analysis through a comparative lens to evaluate whether the legal framework, as amended, is adequate or constitutionally sustainable.
BACKGROUND
The Transgender Persons (Protection of Rights) Amendment Act” introduced major changes in the original act of 2019 which caused it to drift even farther away from the constitutional principles laid down and the guidelines passed by the SC in the NALSA judgment. The definition of “transgender person”, under the 2019 Act, broadly included trans-men, trans-women, intersex persons, genderqueer individuals, and socio-cultural identities such as “hijra”, “kinner”, and “aravani”.4
Most importantly, the Section 4(2) codified the “right to self-perceived gender identity,” and Section 6 allowed any transgender person to obtain an identity certificate through a simple affidavit before the District Magistrate and this section has been substituted via the 2026 Amendment.5
The Amendment altered the original framework in the following ways:
1. Section 2(k) which earlier provided a progressive and broader definition has now been narrowed to a two-limb structure covering only named socio-cultural identities (“hijra, kinner, eunuch, aravani, jogta”) and persons with identifiable intersex medical markers. It excludes the genderqueer, trans-men, trans-women, and non-binary persons and its retroactive proviso declares that they were never included.6
2. Section 4(2), which stated that “a person recognised as transgender under sub-section (1) shall have a right to self-perceived gender identity.”, has been deleted entirely.7
3. Section 6 requires certificate issuance by the District Magistrate and it is now conditional on a recommendation from a medical board which is to headed by the Chief Medical Officer or Deputy Chief Medical Officer.8
This Amendment came into force on 25 May 2026 and is presently under challenge before the SC.9
CRITICAL ANALYSIS
The most fundamental flaw of the Amendment is that it legislatively reverses what the SC has constitutionally declared. In NALSA v. Union of India, 10 the SC held that gender identity is an intrinsic characteristic of personhood protected under Articles 14, 19, and 21. 11 Parliament does not possess the competence to create a legislation that extinguishes what the Court has declared as a fundamental right. The removal of Section 4(2) and the insertion of the medical board are not mere policy adjustments, they violate the guidelines laid down in the NALSA and strike its constitutional core. Moreover, the proviso to Section 2(k) which retroactively declares that trans-men, trans-women, and non-binary persons “shall not include, nor shall ever have been so included” in the definition of transgender is constitutionally unprecedented. A retroactive extinguishment of their conferred legal status raises serious issues regarding the rights provided to the citizens under Articles 14 and 21.12 The proportionality test as was established in Justice K.S. Puttaswamy v. Union of India, further complicates this constitutional tension.13 In this case, the nine-judge bench recognised privacy to be a fundamental right, one that includes bodily autonomy and informational self-determination. Any interference by the State must satisfy the following three-part test: lawful authority, legitimate aim and proportionate means. The Amendment fails the proportionality test at third limb. It is to be noted that the self-identification framework has demonstrably worked in other jurisdiction without causing the harm that the Indian government seeks to prevent and therefore, the medical-board requirement under the Amendment is a disproportionate means. In addition, the new Section 7(1A) requires hospitals to inform the District Magistrate of any gender-affirming surgery. 14 This requirement makes sensitive medical information available to State authorities without any consent framework or data- protection safeguard, thereby violating the informational privacy right that Puttaswamy protects.15
The Amendment also collides with the decision passed in the case of Telangana High Court's analysis in Vyjayanti Vasanta Mogli v. State of Telangana, (2023). 16 In this case, the High Court had quashed a state law mandating registration of transgender persons by the authorities on the ground that granting recognition based on state-initiated verification is unconstitutional as it is a repetition of the colonial criminal-surveillance logic underpinning the Criminal Tribes Act, 1871.17 In effect, the Amendment brings the same structure back by making “granting of recognition” contingent on the approval of the medical board, who will first recommend it to the District Magistrate. It further revives the problematic word “eunuch” in Section 2(k), which was identified by the High Court as a stigmatising and unconstitutional label.18 The result is that a term that was constitutionally objectionable at the state level has been adopted by Parliament at the central level through this Amendment.
Beyond the above constitutional conflicts, the Amendment suffers from serious structural flaws. There is no stated evidentiary standard for the medical board. No statutory guidance is given as to what evidence the board will need to consider, what evidence will be required from an applicant, and on what grounds the medical board can refuse to provide a recommendation. This unfettered and unregulated discretion amounts to the kind of arbitrariness prohibited by Article 14 of the Constitution. 19 Moreover, the Amendment does not create any possibility of appeal against an adverse recommendation by the medical board which makes a writ petition under Articles 226 or 32 the only possible way to seek legal redress against the rejection, which are effectively out of the reach of most transgender persons due to their financial and technical demands.20 . In the context of criminal provisions in Section 18(g) and (h), the undefined terms ‘allurement’ and ‘inducement’ create uncertainty regarding traditional hijra guru-chela relationships. 21 Hijra gharanas have long served as family and support networks for transgender individuals facing abuse and rejection from their natal families and the vague wording of the law may unintentionally carries a real risk of catching within its ambit the guru-chela induction system. This traditional institution of kinship is given no savings, no consent defence, no community practice exemption under the new law and the very community the law claims to protect is subjected to the criminalization of its internal social relations.
COMPARATIVE ANALYSIS
India is moving in the opposite direction of the democratic trend globally. Argentina,22 Ireland23 and Denmark24 have had self-identification-based legal gender recognition for over a decade (Argentina since 2012; Ireland since 2015; and Denmark since 2014) without evidence of misuse. Some jurisdictions of the world allow adults to change the legal gender marker through a simple declaration and no medical board and no judicial oversight and no evidence of systemic fraud.
The UN Special Rapporteur on sexual orientation and gender identity and the Yogyakarta Principles plus 10 (updated 2017), which articulate international human rights standards relating to sexual orientation and gender identity, have consistently held that legal gender recognition must be based on self-identification and must not require medical examination.25
The 2019 Act was an imperfect step forward but was a step forward nonetheless. The 2026 Amendment does not recreate the vacuum before 2019. Rather, it establishes a statutory framework that recognizes the category of transgender persons but simultaneously excludes a majority of those who would meaningfully fall within it.
CONCLUSION
The analysis shows that the “Transgender Persons (Protection of Rights) Amendment Act 2026” directly contradicts the binding constitutional judgments in NALSA, Puttaswamy and Vyjayanti Mogli.
The legal narrowing, removal of self-identity, medical hindrance, and retroactive proviso compromise the constitutional structures of equality, dignity, and bodily autonomy. The evidence from the laws of Argentina, Ireland, and Denmark suggests that the government’s aim of preventing welfare abuse does not require the means it has chosen. The Legislature should, therefore, reinstate self- identification as the default route at the first instance itself, place any verification mechanism at the welfare-claim stage and not the identity-recognition stage, provide for a statutory appeal against the decision of the medical board. As this matter is being adjudicated in the Supreme Court; the real question is whether the Indian statutory framework is in tension with India’s constitutional commitments and on a current appraisal, that tension is real and the constitutional deficit is significant.
1 National Legal Services Authority (NALSA) v. Union of India (2014) 5 SCC 438.
2 Transgender Persons (Protection of Rights) Act, No. 40 of 2019, Acts of Parliament, 2019 (India) (“the 2019 Act”).
3 Transgender Persons (Protection of Rights) Amendment Act, No. 10 of 2026, Acts of Parliament, 2026 (India) (“the Transgender Persons Amendment Act”).
4 Transgender Persons (Protection of Rights) Act, supra note 2, § 2(k).
5 Transgender Persons (Protection of Rights) Act, supra note 2, §§ 4(2), 6; Transgender Persons Amendment Act, supra note 3, § 6.
6 Transgender Persons Amendment Act, supra note 3, § 2(k).
7 Transgender Persons Amendment Act, supra note 3, § 4(2).
8 Transgender Persons Amendment Act, supra note 3, § 6.
9 Laxmi Narayan Tripathi & Anr. v. Union of India (2026), W.P. (C) No. 548/2026, Supreme Court of India (Pending)
10 NALSA, supra note 1.
11 India Const. art. 14, 19, and 21.
12 India Const. art. 14, 21.
13 Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 S.C.C. 1 (India).
14 Transgender Persons Amendment Act, supra note 3, § 7(1A).
15 Puttaswamy, supra note 13.
16 Vyjayanti Vasanta Mogli v. State of Telangana, 2023 SCC OnLine TS 1688
17 Criminal Tribes Act, 1871, No. 27 of 1871, Acts of Parliament, 1871 (India) (repealed 1949).
18 Transgender Persons Amendment Act, supra note 3, § 2(k).
19 India Const. art. 14.
20 India Const. art. 226, 32.
21 Transgender Persons Amendment Act, supra note 3, § 18(g) and (h).
22 Ley de Identidad de Género [Gender Identity Law], Law No. 26.743 (Arg. 2012).
23 Gender Recognition Act 2015 (Act No. 25/2015) (Ir.).
24 Act No. 752 of June 25, 2014 (amending Act on Danish Personal Registration System) (Den.).
25 The Yogyakarta Principles: Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity (2006, updated 2017), available at https://yogyakartaprinciples.org.