The author, Shubham Shrivastva, is a 3rd-year law Student at Dharmashahstra National Law University (DNLU)
“The 2026 Amendment replaces twelve years of constitutional progress with a medical board. Here is why that matters”.
India officially rejected the concept that an individual recognizes his/her gender on April 1, 2026. President Droupadi Murmu signed the Transgender Persons (Protection of Rights) Amendment Act, 2026, a bill which had taken only eighteen days to pass through the initiation to Presidential consent, without a standing committee to examine it, without a meaningful consultation with the stakeholders, and in direct opposition to the express recommendation of a Supreme Court-appointed advisory panel that advised the government to withdraw it.
The speed was not accidental. And neither was the silence.
What the 2014 Supreme Court Actually Said
It was in National Legal Services Authority v. Union of India (NALSA, 2014), where a Constitution Bench of the Supreme Court unequivocally held that the freedom of a transgender individual to identify his or her gender is a fundamental right guaranteed under Article 21. It falls within the ambit of personal liberty.
This decision was not only progressive but constitutionally based. It placed the right to gender identity on par with other constitutional values of privacy, dignity, and personal autonomy rights. The Court reiterated its stance in a nine-judge bench judgment in K.S. Puttaswamy (2017) and Navtej Singh Johar (2018).
While the 2019 Transgender Persons Act is certainly not perfect, it did capture the basic principle: a transgender person was free to declare his or her status before the District Magistrate, would then issue him or her a certificate. No medical practitioner necessary.
“Gender identity is inherent to the concept of personhood… one of the most fundamental elements of dignity, self-determination, and freedom.” — Supreme Court of India, NALSA (2014)
What the 2026 Amendment Actually Does
Three changes define the Amendment, each one moves in the same direction: away from the individual, toward the state.
The amended law’s definition has changed. The Amendment removes the 2019 Act’s open-ended definition (which was primarily based on self-identification) and replaces it with restrictive terminology (hijra, kinner, aravani, jogta, eunuch, intersex) to define who can be considered transgender. In addition, the Amendment also retroactively makes it clear that all individuals who have self-identified as transgender were never protected under the law as a result of the new language. Therefore, people identifying as trans men, non-binary, gender fluid, or in any way that does not conform to historically identifiable socio-cultural categories are legally deemed non-existent.
Medical Certification Requirement for Recognition: The District Magistrate must seek a recommendation from a designated Medical Board headed by a Chief Medical Officer prior to the issuance of a gender identity certificate. This action is contrary to what NALSA determined to be unconstitutional and in direct violation of the case law that held that medical examination of gender identity classifies it as a disease, a framing that the World Health Organization has abandoned when it no longer classified gender incongruence as a mental disorder in ICD-11.
Criminal Law Matters The Amendment has been drafted in such a way as to give rise to serious concerns regarding the impact of the criminal provisions it introduces. For example, individuals who ‘force’ a person to take on or assume the characteristics of a transgender person could be prosecuted to the fullest extent of the law, up to and including life imprisonment. On its face, this aspect of the law seeks to prevent coercive activities; however, legal experts and community activists raise concerns that the vague manner in which this language has been drafted may ultimately have the potential to be used against those individuals in the hijra/kinner community.
October 2025: The Judgment the Government Chose to Ignore
The Supreme Court’s ruling in Jane Kaushik v. Union of India (2025 INSC 1248), just five months prior to the Amendment’s ratification, handed down a ruling regarding the deliberate denial of Jane Kaushik, a qualified transgender teacher, of an opportunity to obtain employment at two private schools after she revealed her true identity. The Court, through Justices J.B. Pardiwala and R. Mahadevan, held that the government’s failure to implement the 2019 Act constituted ‘omissive discrimination’ and said that the government’s failure was ‘deliberate and rooted in the social stigma concerning transgender persons.’ The Court expressly stated that ‘reasonable accommodation’ is a constitutional obligation of both public and private employers and formed an Advisory Committee to draft a comprehensive equal opportunity policy for transgender persons.
The Committee formally urged the government to repeal the legislation that was ultimately to become the 2026 Amendment. Nevertheless, the government continued to go through with it.
This is not simply an irony in action; it has constitutional implications because a legislature responding to a decision of the Court that mandates government accountability for inaction and then enacts laws denying the very protections that the Court was attempting to enforce raises issues that are more significant than issues of policy differences among legislatures.
“This law is not just bureaucratic overreach; it is a fundamental shift in how the state views transgender people.” — Aakar Patel, Amnesty International India (March 2026)
The Constitutional Problem
The 2026 Amendment will almost certainly encounter legal challenges, likely to be heard in the Supreme Court soon. Most of these challenges can be based on constitutional arguments. They include: Under Article 21, the National Legal Services Authority (NALSA) has ruled that self-identification is a fundamental right. The Amendment makes the right to self-identify into an entitlement controlled by the state; i.e., self-identification is not a right if it requires prior executive scrutiny. The Amendment replaces self-identification with its opposite.
The closed definition in the Amendment that defines transgender does so in a way that creates a classification of people in the transgender community based on visible and socio-culturally constructed identities and self-perception, but lacks any intelligible differentia or rational basis for these classifications. Exclusion from legal recognition is not a measure of social welfare; it is the negation of a welfare measure.
The retroactive exclusion provision that provides that a person’s self-perception will “never have been” a legal right may constitute “colourable legislation,” that is, an attempt to legislate around a judicial interpretation rather than to legitimately use the legislative power.
Who Pays the Price
The Constitutional basis alone does matter, but more importantly is the fact that IDs directly relate to having the ability to pursuer one’s occupation, education, use banking services, or receive medical treatment. According to the Census of 2011, 480,000 people identified as transgender; however, many activists believe this number is significantly lower than the actual size because of the stigma regarding their identity. Many trans individuals live in the rural areas of India, far away from the district hospitals or CMOs who will judge their identity under this law.
Transgender activist Laxmi Narayan Tripathi (the hijra community’s most notable spokesperson) stated, “With the passage of this law, you have earlier trampled all over the NALSA decision and ripped the Constitution in two.” When individuals whose lives are changed by a law feel so invalidated, then perhaps we should stop and consider the implications.
Where This Goes Next
Further, lawsuits will be expected going forward; state supreme courts will have to align years’ worth of their own case law against a new law that directly conflicts with previous state law. The Advisory Committee, established with Jane Kaushik, will remain as a statutory and institutional check-and-balance against any changes made by the 2026 Amendment. Similarly, progressive State Governments can still utilize Section II of the Constitution to pass laws that pertain to social welfare without the approval of the Federal Government.
The question of whether constitutional rights can exist or, stated differently, whether or not any of the constitutional rights contained within a state’s constitution can exist, cannot be answered by any court, because they’re conditioned upon avail & usable the institutions that enforce those constitutional rights. Further, the 2026 Amendment represents a shift from the previous policy, which viewed identity as an inherently personal characteristic independent of the State’s approval, to the current one, in which a State will determine someone’s identity by its definition of that identity.
The courts should say so. And say so quickly.
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