From Self-Identification to State Control: Reversing Transgender Rights After NALSA

Author: Himaani Poddar

Abstract

This paper examines the development of transgender rights in India and focuses on the shift from judicial recognition to legislative restriction after the landmark National Legal Services Authority v. Union of India judgment delivered in 2014. The Supreme Court in this case affirmed that gender self-identification is a fundamental right under Articles 14 and 21 and grounded this recognition in the principles of dignity, equality and personal autonomy. However, the Transgender Persons Protection of Rights Act 2019 diluted these constitutional guarantees because it introduced procedural barriers, such as mandatory certification and failed to provide reservations and prescribed weaker penalties for crimes against transgender persons.

The situation further deteriorated with the Transgender Persons Protection of Rights Amendment Bill 2026 because it narrows the definition of a transgender person and excludes individuals who identify themselves without external validation. The amendment imposes restrictive conditions and applies them retrospectively, and therefore creates legal uncertainty and disrupts access to healthcare and recognition of identity. The paper argues that this regression raises serious constitutional concerns because it questions the power of Parliament to limit rights that have already been recognised as fundamental by the Supreme Court. It relies on precedents such as Justice K.S Puttaswamy v Union of India and Navtej Singh Johar v Union of India and places transgender rights within the broader framework of privacy, dignity and autonomy.

The paper concludes that the 2026 Amendment reflects a clear departure from constitutional principles and highlights the continuing tension between judicial protection and legislative action. It emphasises the need for judicial intervention to restore and protect the rights of transgender persons in India.

Keywords: Transgender Rights, NALSA Judgment, Legislative Override, Gender Identity, Human Rights, Self-Identification. 

1.     Introduction

The Supreme Court inNALSA v. Union of Indiadelivered a landmark judgement recognising the rights of transgender persons. It established that every individual has a fundamental right to determine their own identity and directed the government to ensure the protection of these rights.

Parliament subsequently enacted the Transgender Persons (Protection of Rights) Act, 2019, with the intention of reducing discrimination against transgender persons in areas like education, employment, healthcare and housing. However, the law fell short of providing the protections that the court had already guaranteed.

The gap only widened with the Transgender Persons (Protection of Rights) Amendment Bill, 2026. This amendment gives a narrow definition of who qualifies as a transgender person and excludes those who self-identify, thereby narrowing the scope of their rights.This raises an important question: can Parliament, by law, take away what the Constitution has already guaranteed in a Supreme Court judgement?

2.     NALSA Judgement

 The NALSA judgment arose from writ petitions filed by transgender communities, including hijras and kinnars, who had been denied legal recognition for a long time.Activist Laxmi Narayan Tripathi argued that the lack of recognition of a third gender violated the constitutional right of equality and dignity.

The Court held that gender self-identification is a fundamental right under Article 21, and this right doesn’t depend on any medical procedure or certificate. Moreover, it also recognised that transgender people have the right to equality under article 14 and 14 and the word” sex” in the constitution includes gender identity and not just biological differences.

The judgement directed the government to provide reservations in education and jobs for transgender people by treating them as a socially and educationally backward class. The court also referred to the Yogyakarta principle to showcase that transgender rights are recognised in international human rights law.

The judgment established a strong constitutional basis for future law, but in reality, subsequent developments and the actual implementation of these directions have been very limited.

3.     The 2019 Act – Undermining the NALSA framework

The Parliament approved the Act in 2019 against the recommendations of its Standing Committee. The Committee submitted a report which identified multiple Bill provisions as discriminatory and inadequate, and inconsistent with the NALSA judgment, but the government chose to proceed regardless. The Act contains several provisions that go against established legal principles.

Self-identification replaced with a certificate: -

 A transgender person must request a District Magistrate for their identity certificate according to the Act Sections 5 and 6. The right to self-perceived gender identity only comes into existence after that certificate is issued. This goes against the principle laid down in NALSA, where the court held that individuals have the right to determine their gender identity without the need for medical procedures, as part of their fundamental right under Article 21.

No reservations despite a Supreme Court direction: -

 The Court in NALSA recognised reservation as a vested constitutional right for transgender persons. The Act does not include any provision for reservation. It is not included in either the welfare measures chapter or the education and social security chapter. The Court's direction was simply not reflected in the law.

Weaker punishment for crimes against transgender persons: -

Section 18 of the Act prescribes a maximum punishment of two years imprisonment for physical, sexual and emotional abuse of a transgender person. The same category of offence against a cisgender woman attracts a minimum of seven years imprisonment, which may extend to life. Furthermore, the Act does not explain the definition of "sexual abuse" that applies to transgender individuals, and it significantly affects 73-92% of transgender persons who face violence without any meaningful legal remedy.

Anti-discrimination provisions without enforcement: -

The Act prevents discrimination, but it doesn’t provide any mechanism to enforce this prohibition in real life. The protection just exists as text in the statute and has no legal force behind it.

The standing committee informed parliament about these concerns, yet it proceeded to pass the act.

4.     The 2026 Amendment: Reversing the Right to Self-Identification

If the 2019 Act was a step back from NALSA, then the 2026 Amendment is a full reversal.

The Amendment establishes a new definition of the term "transgender person." The 2019 Act adopted a broad definition covering all the individuals who did not identify with their assigned gender at birth, which included trans men, trans women, intersex individuals and people who identified as hijra or kinner. The 2026 Amendment replaces this with a far narrower formulation. The legislation defines intersex persons and specific socio-cultural groups as its authorised members. The definition adds a major requirement, which states that people cannot be included as transgender unless they have an actual transgender identity.That single addition undoes the core principle of NALSA.

The Amendment also operates retrospectively. The law states that self-identifying transgender individuals will not be recognised as having any prior status under the Act. The 2019 Act certificates, which people received, now leave them in a state of legal uncertainty. The current system fails to explain how existing certificates and the legal status of individuals will be handled

The impact of the decision was immediate. The hospitals stopped providing hormone replacement therapy to transgender patients immediately after the Amendment became law. The Kerala High Court had to intervene and allow two persons to continue their treatment while challenges to the law are heard. The Court noted that an abrupt stoppage of such treatment could produce "absurd results" for the individuals concerned.

 This is further aggravated by a lack of consultation. The National Council of Transgender Persons was not informed before the Bill was introduced. A Supreme Court-appointed committee headed by retired Delhi High Court judge Justice Asha Menon had asked the government to withdraw the Bill entirely. That request was also disregarded.

5.     The Constitutional Challenge: Can Parliament OverrideFundamental Rights?

The legal issueof this Amendment is not complicated. The Supreme Court declared self-identification of gender to be a fundamental right. Parliament cannot take away a fundamental right through ordinary legislation.

The NALSA judgment placed this right within Article 21, which protects life, liberty, dignity and personal autonomy. The Supreme Court confirmed this assertion through its decision in Justice K.S. Puttaswamy v. Union of India (2017) andNavtej Singh Johar v. Union of India (2018), which affirmed dignity, privacy and personal autonomy as constitutional rights. This is not one isolated ruling but a consistent line of constitutional interpretation across multiple benches.

The retrospective nature of the 2026 Amendment raises serious concern under Article 14. People who had already changed their documents, begun medical treatment, and established their legal identity under the 2019 Act are now being informed that the law never applied to them. This places them at a disadvantage compared to others whose identity is recognised on biological or cultural grounds. Without a reasonable justification, this clearly amounts to discrimination.

It is also important to note that the constitutional right remains intact despite the removal of Section 4(2), which recognised self-perceived gender identity under the Act. The NALSA judgment continues to hold legal force. Parliament removed the statutory wording that expressed that right. The right itself remains.

6.     Conclusion

The legal issue across these legislative steps is clear. In 2014, the Supreme Court recognised constitutional protection for transgender people. recognised constitutional protection for transgender persons. In 2019, Parliament weakened these protections and failed to take practical steps to prohibit discrimination. In 2026, it reduced them further and applied the change retrospectively.

The courts are currently reviewing the validity of the amendment.The Kerala High Court has already intervened in individual cases, and the Delhi High Court has issued a notice challenging the law. cases, and the Delhi High Court has issued notice on a challenge to the law. Petitions have been filed in the Supreme Court. However, such matters take considerable time to resolve, and during this period, these communities continue to face uncertainty with medical treatments being disrupted and legal identities being unresolved.

The 2026 Amendment does not appear to be unintentional and instead reflects a deliberate legislative choice. The National Transgender Council was not consulted, and even a Supreme Court-appointed commission recommended the bill's withdrawal, yet both were disregarded.

A judgment that gave rights cannot be buried by a bill that takes them away. That is not how constitutional democracy is supposed to function.

Refrences

Cases:

• National Legal Services Authority v. Union of India, (2014) 5 SCC 438.

• Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

• Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

Legislation:

• The Transgender Persons (Protection of Rights) Act, 2019.

• The Transgender Persons (Protection of Rights) Amendment Bill, 2026.

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