INTRODUCTION
The Transgender Persons (Protection of Rights) Amendment Bill, 2026, which received the presidential assent on 30 March 2026[1]. It is arguably one of the worst assaults on human rights in contemporary India. It first deletes the right of a trans person to have the gender of their choice recognised by simply declaring their trans identity, and then compels such persons to obtain a certificate from a medical board to exercise the further rights provided in the Amendment. This makes the constitutional recognition of gender identity a matter of gendered permission granted by administrators. The Amendment thus retroactively changes the legal identities of existing transgender persons.
‘Protection’ is doing a lot of work in this Amendment’s title. What it actually describes is a permission structure; you may exist as yourself, but only after we have looked you over and agreed.
In 1871, the Criminal Tribes Act forced Hijra communities to register with colonial officials,[2] and they were medically inspected, categorised, fingerprinted and later marked as socially dangerous by law simply because they existed outside of state recognition.[3] While the Criminal Tribes Act has been repealed, its underlying logic persists. This has unfortunately been inherited by recent legislation, with it using the language of medicine, legality and protection to render a long-established marginalised community once more vulnerable to oppressive practices.
THE LAW THAT REACHES BACKWARDS
Most problematic laws have negative consequences prospectively, but the 2026 Amendment does something rarer and more alarming by reaching backwards.
In National Legal Services Authority v Union of India, the Supreme Court of India held that a person who identifies themselves as being a particular gender, including a gender not recognised at birth, has a right to self-perceived gender identity in the light of Articles 14, 15, 16, 19, and 21 of the Constitution of India.[4] This right is not to be conditioned upon surgical intervention or psychiatric assessment, nor is it subject to the approval of State authorities. The principle was even given legislative recognition in Section 4(2) of the Transgender Persons (Protection of Rights) Act 2019[5], which the 2026 Amendment deletes entirely.
The Amendment goes further by inserting a retrospective clause declaring that certain persons shall not be included in the definition of ‘transgender person’, nor ‘shall ever have been so included’[6]. Under the 2019 Act, around 32,000 transgender certificates have been issued. [7]No transitional provision or savings clause has been provided by the amendment to address what becomes of those certificates. It declares, without procedure or remedy, that the people who hold them were never who they said they were. Rights are status-bound, and once the status changes, all rights that flowed from the original status are affected, including documentation based on that status, welfare, employment, health care, and legal standing in court.
A CONFUSION WRITTEN INTO LAW
There is another flaw in the architecture of the Amendment, highlighting the drafter’s inaccurate understanding of the difference between intersex and transgender. The Transgender Persons (Protection of Rights) Act, 2019, was painstakingly designed to keep these two classes separate. Section 2(i) of the Act defines “intersex variations” independently.[8]
However, the 2026 Amendment blows all of this to pieces. An intersex person is someone who is born with biological characteristics of both sexes (chromosomes, genes, hormones, etc.), and a transgender person is someone who feels that they are of a gender other than the one(s) they were assigned at birth. One is a biological category. The other is a psychological and social one. They can overlap, but they are not coextensive, and treating them as interchangeable is a categorical error written into law.
The Amendment thus reveals the legislative intent to grant protection only to those facing ‘severe social exclusion due to biological reasons, for no fault of their own and no choice of their own.’ This framing implies that transgender identity is a choice and undeserving of statutory protection.
The NALSA case has foreclosed this argument. The Supreme Court rejected the Corbett approach, which is based on the “biological test”[9], i.e. a test based on inherited English law concepts which looks at chromosomes and/or genitalia to determine sex.[10] Instead, the Court adopted the “psychological test”[11], recognising self-identified gender identity rather than surgical or medical criteria.[12]
WHAT A MEDICAL BOARD CANNOT MEASURE AND WHAT IT CAN CRIMINALISE?
The World Health Organisation confirmed that there is no medical test for gender identity by removing gender incongruence from the 11th Revision of the International Classification of Diseases (ICD-11).[13] Being transgender is not a pathology and cannot be verified by physical examination.
The 2026 Amendment essentially makes medical board certification the mandatory precondition for legal recognition of a person’s gender identity. Interestingly, the Amendment does not specify any qualifications for the members of the board or even the mandatory expertise in gender medicine, endocrinology, or psychology that the members may possess. Neither is a written reasoning required for rejection, nor are any deadlines stipulated. What is even worse is that no statutory appeal exists. At the top of the hierarchy stands the District Magistrate with absolute discretionary power and without any criteria, guidelines or accountability, empowered to approve, reject, or revoke recognition.
In Justice K.S. Puttaswamy v Union of India, the bench held that any intrusion on fundamental rights must be proportionate.[14] What legitimate aim is served by requiring a board to certify what medicine cannot measure? The aforementioned principles are consistent with the Yogyakarta Principles that have been cited by the Supreme Court in the NALSA case, that “no medical procedure shall be required as a condition of legal recognition of gender identity”.[15]
Section 7(1A) of the Act also demands information on every patient undergoing gender-affirming surgery and the sharing of their details with the District Magistrate and the medical board of the State concerned.[16] There is no purpose stated for this exercise, and no cap placed on retention or on access to the information thus collected. Informational privacy is a fundamental right, as decided in the Puttaswamy Judgment.[17]
Section 18 of the 2026 Amendment creates criminal offences on the assumption that transgender identity is imposed rather than intrinsic. Abducting someone and causing bodily harm to force a transgender identity: ten years to life. Compelling someone to present as transgender and subjecting them to begging: five to ten years. Sexual abuse against a transgender person under the Act: still two years.[18] The legislature sat down, looked at both numbers, and apparently found them acceptable. That tells you more about this law than its Statement of Objects ever will.
The Act does not stop there. It duplicates four existing criminal provisions from the Bharatiya Nyaya Sanhita kidnapping, abduction, grievous hurt, and criminal coercion[19] in a separate section, all specifically framed to deal with the transgender community, whose implicit message is that this community is presumptively dangerous. The offence definitions weaponise their vagueness to criminalise a social worker helping a young person understand their identity, a doctor providing affirming care, or a trans person offering shelter to someone fleeing a hostile home. Shreya Singhal (2015) held that vague criminal provisions with a chilling effect on fundamental rights must be struck down.[20] There is no NCRB data or any other evidence cited by the 2026 Amendment to establish that there is a pattern of coercive recruitment of transgender persons into their community. It simply asserts that transgender identities can be imposed, without a single piece of evidence.
CONCLUSION: THE RIGHTS THIS LAW FORGOT TO WRITE
The Amendment is strikingly silent about a lot of imperative issues with respect to the protection of the trans community. It contains no enforceable provisions for their employment protection or reservation. Jane Kaushik v. Union of India recognised the exclusion of transgender persons from mainstream employment and recognised the State’s constitutional duty to address this exclusion[21], which the amendment does not. There is no provision for transgender children, concerning correct naming in school records, or criminalising conversion therapy. It does not talk about safe shelter for youth rejected by their families.
Argentina passed its Gender Identity Law in 2012. Since then, any Argentine can walk into a civil registry, fill out a single form, and have their legal gender updated within thirty days, at no cost, with no mandatory doctor’s signature and no magistrate’s approval.[22] The law has been in operation for over a decade. What Argentina proves is not that self-declaration is risk-free. It proves that every layer of medical gatekeeping in India’s Amendment is a deliberate addition, not a structural necessity.
The Supreme Court in the NALSA judgment said the moral failure lies in society’s unwillingness to embrace different gender identities, and that this mindset must change.[23] Twelve years later, nothing has changed. The Constitution does not require us to prove our identity to the state, but the 2026 Amendment does. The question of this amendment is therefore an inversion, an issue of where power sits, who decides, and what the state owes to its citizens.
Author: Inaaya Waqar
References:
[1] Transgender Persons (Protection of Rights) Amendment Bill 2026 (Bill No 79 of 2026), introduced in Lok Sabha on 13 March 2026, passed by Lok Sabha on 24 March 2026 and Rajya Sabha on 25 March 2026, Presidential assent granted 30 March 2026, Law Ministry Gazette Notification dated 30 March 2026; see also PRS Legislative Research, ‘The Transgender Persons (Protection of Rights) Amendment Bill, 2026’ https://prsindia.org/billtrack/the-transgender-persons-protection-of-rights-amendment-bill-2026 accessed 13 May 2026.
[2] Nayyab Ali, ‘Protection to Prosecution: The Criminalization of Transgender Existence in India’s 2026 Amendment Bill’ (Carr-Ryan Commentary, Carr-Ryan Center for Human Rights, Harvard Kennedy School, 2 April 2026) https://www.hks.harvard.edu/centers/carr-ryan/our-work/carr-ryan-commentary/protection-prosecution-criminalization-transgender accessed 13 May 2026.
[3] Criminal Tribes Act 1871 (Act No XXVII of 1871), Part II (provisions relating to ‘eunuchs’); see also Jessica Hinchy, ‘Obscenity, Moral Contagion and Masculinity: Hijras in Public Space in Colonial North India’ (2014) 38(2) Asian Studies Review 274; and Jessica Hinchy, Governing Gender and Sexuality in Colonial India: The Hijra, c 1850–1900 (Cambridge University Press 2019).
[4] National Legal Services Authority v Union of India (2014) 5 SCC 438; AIR 2014 SC 1863 (Supreme Court of India, 15 April 2014, Writ Petition (Civil) No 400 of 2012 with Writ Petition (Civil) No 604 of 2013, Radhakrishnan and Sikri JJ).
[5] Transgender Persons (Protection of Rights) Act 2019 (Act No 40 of 2019) s 4(2); Gazette of India, Extraordinary, Part II – Section 1, No 40 of 2019, 10 January 2020.
[6] Transgender Persons (Protection of Rights) Amendment Act 2026 (Bill No 79 of 2026), s 2(iv), substituting cl (k) of s 2 of the Transgender Persons (Protection of Rights) Act 2019 (Act No 40 of 2019), proviso; Gazette of India, Extraordinary, Part II — Section 2, No 4, 13 March 2026 (CG-DL-E-13032026-270935).
[7] Ministry of Social Justice and Empowerment, Government of India, ‘National Portal for Transgender Persons – Certificates Issued’ (National Portal for Transgender Persons, 2026) https://transgender.dosje.gov.in accessed 13 May 2026.
[8] Transgender Persons (Protection of Rights) Act 2019 (Act No 40 of 2019) s 2(i).
[9] National Legal Services Authority v Union of India (2014) 5 SCC 438; AIR 2014 SC 1863, paras 61–66 (Radhakrishnan J) (expressly rejecting Corbett v Corbett [1970] 2 All ER 33).
[10] Corbett v Corbett (otherwise Ashley) [1970] 2 All ER 33 (Fam Div, Ormrod J) (holding that sex for the purposes of marriage is determined by chromosomal, gonadal and genital criteria at birth, ignoring operative intervention and psychological factors).
[11] National Legal Services Authority v Union of India (2014) 5 SCC 438; AIR 2014 SC 1863, paras 66–72 (Radhakrishnan J).
[12] Ajitesh Singh, ‘Architecture of Erasure: How the Transgender Amendment Bill 2026 Erases Those It Claims to Protect’ (The Leaflet, 22 March 2026) https://theleaflet.in/leaflet-reports/architecture-of-erasure-how-the-trans-amendment-bill-2026-erases-those-it-claims-to-protect accessed 13 May 2026.
[13] World Health Organization, International Classification of Diseases, 11th Revision (ICD-11) (WHO 2019, adopted by the World Health Assembly on 25 May 2019, came into effect 1 January 2022); WHO, ‘Gender incongruence and transgender health in the ICD’ https://www.who.int/standards/classifications/frequently-asked-questions/gender-incongruence-and-transgender-health-in-the-icd accessed 13 May 2026; see also GM Reed and others, ‘Disorders related to sexuality and gender identity in the ICD-11: revising the ICD-10 classification based on current scientific evidence, best clinical practices, and human rights considerations’ (2016) 15(3) World Psychiatry 205.
[14] Justice KS Puttaswamy (Retd) and Anr v Union of India and Ors (2017) 10 SCC 1; AIR 2017 SC 4161 (Supreme Court of India, 24 August 2017, Writ Petition (Civil) No 494 of 2012, Nine-Judge Bench: Khehar CJ, Chelameswar, Bobde, Agrawal, Nariman, Sapre, Chandrachud, Kaul and Nazeer JJ).
[15] International Commission of Jurists and International Service for Human Rights, Yogyakarta Principles: Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity (adopted at Gadjah Mada University, Yogyakarta, Indonesia, 6–9 November 2006, published March 2007), Principle 3 (‘The Right to Recognition before the Law’) https://yogyakartaprinciples.org/principle-3/ accessed 13 May 2026; cited in National Legal Services Authority v Union of India (2014) 5 SCC 438, paras 55–59 (Radhakrishnan J).
[16] Transgender Persons (Protection of Rights) Amendment Act 2026, s 7(1A) (as inserted by the 2026 Amendment into the principal Act).
[17] Justice KS Puttaswamy (Retd) and Anr v Union of India and Ors (2017) 10 SCC 1; AIR 2017 SC 4161, paras 169–180 (Chandrachud J) and paras 59–64 (Nariman J) (holding that informational privacy is a component of the right to privacy protected under Article 21 of the Constitution of India).
[18]Transgender Persons (Protection of Rights) Amendment Act 2026, s 18 (as substituted/inserted by the 2026 Amendment).
[19] Bharatiya Nyaya Sanhita 2023 (Act No 45 of 2023), ss 137–138 (kidnapping and abduction), s 117 (grievous hurt), s 351 (criminal intimidation/coercion); Transgender Persons (Protection of Rights) Amendment Act 2026, s 18 (duplicating these provisions in a transgender-specific frame).
[20] Shreya Singhal v Union of India (2015) 5 SCC 1; AIR 2015 SC 1523 (Supreme Court of India, 24 March 2015, Writ Petition (Criminal) No 167 of 2012, Chelameswar and Nariman JJ).
[21] Jane Kaushik v Union of India (2025) WP(C) No 1405 of 2023 (Supreme Court of India, 17 October 2025, Pardiwala and Mahadevan JJ) https://indiankanoon.org/doc/109624343/ accessed 13 May 2026.
[22] Argentina, Ley de Identidad de Género (Gender Identity Law), Law No 26,743, promulgated by Decree No 773/2012 of the National Executive Power on 24 May 2012, regulated by Decree No 1007/2012; Graciela Rodriguez-Ferrand, ‘Argentina: New Law on Transgender Rights Approved’ (Global Legal Monitor, Library of Congress, 16 May 2012) https://www.loc.gov/item/global-legal-monitor/2012-05-16/argentina-new-law-on-transgender-rights-approved/ accessed 13 May 2026; Human Rights Watch, ‘Argentina Recognizes Non-Binary Identities’ (Human Rights Watch, 22 July 2021) https://www.hrw.org/news/2021/07/22/argentina-recognizes-non-binary-identities accessed 13 May 2026.
[23] National Legal Services Authority v Union of India (2014) 5 SCC 438; AIR 2014 SC 1863, para 129 (Radhakrishnan J).
