Abstract
The Transgender Persons (Amendment) Bill, 2026 narrows the legal recognition of transgender identity to socio-cultural categories of people (kinner, hijra, aravani, and jogta or eunuch) and intersex variations based on biological traits and explicitly excludes self-perceived gender
identities and trans men/women irrespective of whether a person has undergone sex reassignment surgery. The proposed amendment omits the right of self-identification and has put in place stringent conditions of medical board scrutiny and with new enhanced penalties,
sparking debate and protest as a violation of the right to privacy upheld in K.S. Puttaswamy v. Union of India (2017). The article undertakes a constitutional analysis of the amendment and its compatibility with the Supreme Court’s ruling in the landmark case of National Legal Services Authority v. Union of India (2014) and fundamental rights under the Indian Constitution, particularly of equality, dignity, privacy and personal autonomy.
Introduction
The Transgender Persons (Protection of Rights) Amendment Bill, 2026, was introduced in the Lok Sabha on March 13, passed by both houses of Parliament and received presidential assent on March 30, 2026. It amends the Transgender Persons (Protection of Rights) Act, 2019, which
was India’s first dedicated legislation for transgender welfare. The amendments fundamentally alter the definition of a “transgender person” under Section 2(k) from a broad and inclusive to a narrow one, and omit Section 4(2) recognising self-perceived sexual identification with
mandatory medical board certification by District Magistrate under Section 6 and 7 effectively removing the gains of the landmark 2014 Supreme Court judgment in National Legal Services Authority v. Union of India (2014) and International human rights standards which advocate for self-declared identity to form the basis for access to all social security measures, benefits, and entitlements. It substantially revises Section 18 to introduce a new strict penal safeguard for offences against transgender individuals and to protect bodily integrity against forced labour and trafficking. While the government reasons these changes as protective measures for those facing biological or socio-cultural discrimination, it is seen by many critics as regressive and intrusive over privacy, dignity, and bodily autonomy.
Historical Background
Transgender identities in India have ancient roots, comprising ‘Hijras, Kinner, Eunuchs, Kothis, Aravanis, Jogappas, Shiv-Shakthis’, etc, who have a historical presence in the Hindu mythology and other religious texts. Bahuchara Mata, who is a Hindu Goddess and patroness of the Hijra community in India. The Concept of ‘tritiya prakrti’ or ‘napunsaka’ has also been an integral part of Vedic and Puranic literatures, yet criminalised under colonial law. The draconian Criminal Tribes Act, 1871, explicitly targeted “eunuchs” as inherent criminals, leading to their social exclusion, denial of education, employment and healthcare post- independence. The turning point came with the Supreme Court’s judgment in National Legal Services Authority v. Union of India (NALSA), which recognised that “person” under Article 14 encompasses transgenders. The Transgender Persons (Protection of Rights) Act, 2019, was further enacted by the Parliament to give statutory effect to the judgment, with the 2020 Rules operationalised self-identification.

Related Case Studies
The cornerstone remains NALSA v. Union of India (2014), where a 2-judge bench (Justice K.S. Panicker Radhakrishnan and Justice A.K. Sikri) of the Hon’ble Supreme Court held that Hijras/Eunuchs, etc apart from binary genders, are to be treated as “third gender”. The Court
explicitly rejected ‘Biological Tests’ and directed legal recognition of self-identified gender (male, female, or third gender) without medical intervention. The Court held that Articles 14, 15, 19(1)(a) and 21 are gender-neutral and apply to Transgenders who are “persons” and “citizens” under these articles, citing neighbouring country Nepal in the case of Sunil Babu Pant and Ors. v. Nepal Government (2007) and Pakistan in the case of Dr. Mohammad Aslam Khaki and Anr. v. Senior Superintendent of Police (Operation) Rawalpindi and Ors. (2009), which recognise Transgender rights. These were subsequently reinforced in Justice K.S. Puttaswamy v. Union of India (2017) and Navtej Singh Johar v. Union of India (2018) cases.
Critical Analysis
The Transgender Persons (Amendment) Bill, 2026, is mixed on constitutional merits. Positive features include the introduction of harsher criminal sanctions against offences against transgender individuals, including forced mutilation, abduction and any other form of exploitation that would violate their bodily integrity. This amendment is a safeguard to counteract biological and socio-cultural discrimination faced by transgender persons. The Act will also seek to prevent abuse of self-identification by non-transgenders or by compulsion. However, the demerits outweigh the merits. First, the removal of Section 4(2) and the substitution of a narrower definition of transgender person through Section 2(k) directly goes against the Supreme Court precedent laid down in National Legal Services Authority v. Union of India (2014), which directed self-identified gender and the preferred psychological gender over biological tests in identifying one’s gender. The amendment establishes an arbitrary classification in violation of Article 14 as it excludes many trans men, trans women and non binary persons who fall outside the narrow scope.

The requirement that a medical board (headed by the Chief Medical Officer) must issue its opinion before the District Magistrate can grant a certification (Section 6) and mandating medical institutions to notify authorities about gender-affirmation surgery (Section 7(1A)) breaches the Puttaswamy judgment. The establishment of graded penalties, including life imprisonment for kidnapping or grievous hurt with intent to force them to identify themselves as transgender persons include vague terms like allurement, inducement or undue influence. Although meant to stop any abuse or coercion, this could easily be misused against a person’s family, gharanas or community elders. The amendment has been rushed without consulting its stakeholders, even though objections raised by the Supreme Court-appointed expert committee and the National Council for Transgender Persons go against participatory democracy. Internationally, this Bill fails to follow the Yogyakarta Principles and India’s obligations under the ICCPR.

Conclusion and Suggestions
The Transgender Persons (Amendment) Bill, 2026, is a major constitutional retrograde step. By dismantling the right to self-perceived gender identity and imposing medical and bureaucratic control, it undermines the Supreme Court’s ruling and fundamental rights under the Indian Constitution, particularly of equality, dignity, privacy and personal autonomy. While protection against exploitation is a legitimate state objective to advance substantive equality, it cannot be achieved by diluting fundamental rights or excluding a large number of transgender community.

Suggestions include (1) Reinstatement of self-identity as the primary standard and a medical certificate as optional; (2) An adoption of a broad definition of all gender-variant individuals, which can subsequently be refined based on case-law, taking into account social and cultural developments; (3) All future amendments shall be made with mandatory consultations from transgender communities; (4) Provision of welfare measures like horizontal reservation programs, policies regarding employment, healthcare and education due to historical marginalisation; and (5) Rules on non-applicability of provisions with respect to consensual transitions.

In the end, genuine protection comes in the expansion of the scope of identity, rather than its limitation. This Bill falls far short of the requirement in question, and the Supreme Court must scrutinise the law in order to safeguard transgender rights.
Bibliography
1. Amnesty International, ‘India: Presidential Approval of Regressive Transgender Bill a Major Step Backward for Human Rights’ (31 March 2026) <https://www.amnesty.org/en/latest/news/2026/03/india-presidential-approval-of- regressive-transgender-bill-a-major-step-backward-for-human-rights/> accessed 7 April 2026.

2. Bajoria J, ‘India’s Transgender Rights Bill a Huge Setback’ (Human Rights Watch, 26 March 2026 <https://www.hrw.org/news/2026/03/26/indias-transgender-rights-bill-a- huge-setback> accessed 7 April 2026.

3. K S Puttaswamy v Union of India (2017) 10 SCC 1.

4. Mihir Rajamane, ‘The 2026 Transgender Amendment Bill and its Roll-Back of Constitutional Rights’ (Centre for Law & Policy Research Blog, 25 March 2026) <https://clpr.org.in/blog/the-2026-transgender-amendment-bill-and-its-roll-back-of- constitutional-rights/> accessed 7 April 2026.

5. National Legal Services Authority v Union of India (2014) 5 SCC 438.
6. Navtej Singh Johar v Union of India (2018) 10 SCC 1.
7. Nikhil S Nair, ‘An Analysis of the Transgender Persons Act and the 2026 Amendment Bill’ (LiveLaw, 23 March 2026 <https://www.livelaw.in/articles/legislative- metamorphosis-constitutional-guarantees-transgender-persons-act-527509> accessed 7 April 2026.

8. 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 7 April 2026.

9. ‘A Brief History of Transgenders in India’ (Indian Institute of Legal Studies Blog) <https://www.iilsindia.com/blogs/brief-history transgenders-india/> accessed 7 April 2026.
10. The Transgender Persons (Protection of Rights) Act 2019 (Act No 40 of 2019 <https://www.indiacode.nic.in/bitstream/123456789/13091/1/a2019-40.pdf> accessed 7 April 2026.
11. The Transgender Persons (Protection of Rights) Amendment Bill 2026 (Bill No 79 of 2026, as introduced in Lok Sabha on 13 March 2026)<https://prsindia.org/files/bills_acts/bills_parliament/2026/Transgender_Bill_2026_Text.pdf> accessed 7 April 2026.