THE STATE JUST DECIDED WHO GETS TO BE TRANSGENDER

By- Shradha, Law Student, Lloyd Law College

Setting back hard-won rights of transgender people, the Parliament of India passed the Transgender Persons (Protection of Rights) Amendment Bill, 2026 on March 13, 2026. The amendment appears to depart, in principle, from the constitution

al framework laid down by the Supreme Court in the landmark case of National Legal Services Authority v. Union of India, (2014) 5 SCC 438.It marks a regression from its own parent legislation, Transgender Persons (Protection of Rights) Act, 2019.Self-determination of gender is an integral component of personal autonomy under Article 21 of the Constitution of India. The Yogyakarta Principles, to which India is a signatory, affirm that self-defined gender identity is integral to one’s personality. Amnesty International has called the introduction of the bill a serious setback for human rights in India.

Among the significant changes it introduces, the act seeks to amend the broad definition of a transgender person. It limits the definition of "transgender person" to those with recognised socio-cultural identities such as hijra, kinner, or eunuch, persons born with intersex or congenital variations in sex characteristics, and those coerced into a transgender identity through surgical, chemical, or hormonal means. It explicitly excludes anyone who self-identifies on the basis of self-perceived or different sexual orientation. The original legislation defines transgender person as anyone whose gender does not match their gender assigned at birth. This includes trans men, trans women, genderqueers, individuals with intersex variations, and those with socio-cultural identities such as hijra, kinner, aravani, and jogta. It also brings procedural changes; it introduces a State appointed medical “authority” which the district magistrate is required to compulsorily consult before issuing identity certificates for transgender persons. The provisions in the amendment rest squarely on biological and medical factors for determination of gender. This approach is fundamentally different from what the Supreme Court directed in the NALSA judgement.

As the Hon’ble Rajasthan High Court rightly observed, the bill substantially narrows down gender identity from “an inviolable aspect of personhood” to “a contingent, state-mediated entitlement”. This gives arbitrary powers to the State in the matter of gender perception which is closely linked to the personality rights of the individual citizens. The socio-legal position of transgender persons remains largely precarious. A Majority of them are marginalised, unidentified, misunderstood, under represented and face discrimination of all kinds. The 2011 census recorded 487,803 trans people in the country. Alarmingly, only 32,500 people today possess transgender identity cards. This disparity clearly indicates their systemic exclusion. With this Amendment, the people who do not conform with the sex they are born with are effectively denied legal recognition. This non-recognition of their identities denies them equality before the law guaranteed to all citizens under Article 14 of the Constitution.

With conscious knowledge of the fact that the changes being introduced will have far-reaching impact on rights and identification of trans people, the government did not consider it necessaryto undertake stakeholder consultation before presenting the bill in the Parliament. There has been absolutely no dialogue even with the statutory body of the National Council of Transgender People about the said provisions. The matter was discussed and voted within a rushed three hours in the Parliament. Only 15 members spoke on the bill. The Amendment appears to work against the very reason for the enactment of Transgender Persons (Protection of Rights) Act, 2019. It has drawn sustained criticism from both domestic and international quarters. The Supreme Court-appointed Advisory Committee chaired by Asha Menon has demanded immediate withdrawal of the bill. International organisations like the United Nations and Amnesty International have criticised these changes. It is being said that the proposed changes will have far-reaching impacts on the right to privacy and marginalisation of trans people. Two members from the National Council of Transgender People, Rituparna Neog and Kalki Subramaniam have resigned in protest. The Opposition has also criticised the narrowed-down approach of the bill. While the bill was being passed in the Lok Sabha and Rajya Sabha, several opposition parties walked out of the house to mark their dissent. The Parliament did not take any cognizance of the walk out and continued its debate and voting on the bill without those members.

The government argues that the changes will make welfare benefits more accessible. It calls the earlier definition of “transgender person” too vague and says a narrower definition will help in identification and recognition of these people. But the bill on the other hand actively strips away the gender identity of several trans people leaving them with absolutely no choice. The bill institutionalises the humiliation and disrespect that the trans community receive in our country.

Amid large-scale protests and despite appeals to withhold assent from 140 active members of society including lawyers, activists, students, on March 30, 2026 the President of India granted her assent to the proposed bill. However, the Central Government has not yet notified the date of the bill coming into force in the official gazette. The trans community of the country is looking to the government and demanding immediate reconsideration of the Amendments proposed. Once enforced, these provisions will lead to loss of legal recognition of gender identity for all the trans people not specifically mentioned in the Act. This will mean loss of all kinds of social and legal protections.

In conclusion, the said Amendment represents a step backward in India’s development of humanitarian and inclusive laws. The act of stripping away an individual of their dignity and autonomy by virtue of not fitting into the social standards challenges the very notion of equality, liberty and justice enshrined in the preamble of our Constitution. By involving State intervention in gender identification of individuals, the Government not only contradicts the NALSA judgement but also attempts to sabotage the core of Fundamental Rights under the Constitution of India. When legislation requires the government to bypass statutory institutions, silences community voices and disregard the international standards for human rights, it ceases to protect the vulnerable and contributes to their marginalisation. If the government does not correct its mistake before enforcement, the harm caused will be irreversible and will set back our legislative and judicial progress.

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