Authored By: Debangshi Paswan
University of Calcutta
Introduction
A right recognised by the Supreme Court in 2014 did not survive intact to 2026. That year, the Court held that no transgender person could be forced to prove their identity through a medical test, and that the right to self-perceived gender identity needed no external permission.[1] Twelve years later, Parliament passed a law that requires exactly that permission. The Transgender Persons (Protection of Rights) Amendment Act, 2026 deletes the statutory guarantee of self-perceived identity and replaces it with certification by a government-appointed medical board.[2] Laxmi Narayan Tripathi, one of the original petitioners in the 2014 case, is now before the same Court arguing that Parliament could not lawfully do this.[3]
This is not the first retreat in Transgender rights in India. The Transgender Persons (Protection of Rights) Act, 2019 already routed the 2014 judgment through a District Magistrate’s certificate, a bureaucratic filter that transgender rights groups criticised even at the time.[4] However, the 2026 Amendment goes much further: it does not merely add a formality; it removes the underlying right and narrows who counts as transgender in the first place.[5]
This article argues that the Amendment amounts to a legislative undoing of a fundamental right that the Supreme Court had already recognized in Article 21, and that the medical-certification model it introduces reinstates precisely the kind of gatekeeping the Court rejected in 2014. Part I sets out what NALSA actually decided. Part II traces the 2019 Act’s partial compromise. Part III examines the 2026 Amendment itself. Part IV looks at the pending challenge before the Supreme Court. Part V asks whether Parliament was constitutionally free to do any of this.
Part I: The Rights established in the NALSA Judgement
National Legal Services Authority v Union of India began as a petition on behalf of the hijra and kinner communities, asking the Court to recognise a legally cognisable third gender.[6] Delivered on April 15, 2014, by a two-judge bench, the judgment held that gender identity is part of personal autonomy and dignity, protected under Article 21, and also protected under Article 19(1)(a)’s guarantee of expression.[7]
The ruling’s most significant aspect was not merely acknowledging a third gender, but rather the criteria established by the Court for the legal determination of gender. It rejected what it called a biological test, meaning chromosomes, anatomy, or surgical status, in favour of a psychological test: a person’s own, stated sense of their gender.[8] No medical examination, no surgery, and no certificate from a doctor was to stand between a person and legal recognition. The Court also read Articles 14 and 15 to cover transgender persons, holding that the words “any person” and “sex” in those provisions were not confined to a male-female binary.[9]
Beyond the declaration, the Court directed the state to treat transgender persons as a backward class for reservation purposes and to build welfare schemes around them, again without conditioning any of this on medical proof.[10] NALSA was not just a statement of a right but an instruction for how the right was meant to work in practice: recognition first, government action to follow, not the other way round.
Part II: The 2019 Act as a Partial Retreat
Parliament’s response came five years later. Although section 4(2) of the 2019 Act preserved the substance of NALSA by stating that a person so recognised “shall have a right to self-perceived gender identity”, the Transgender Persons (Protection of Rights) Act, 2019 required a transgender person to apply to the District Magistrate for a certificate of identity.[11]
Activists were not satisfied. The certificate requirement, however procedural it looked on paper, reintroduced exactly the kind of administrative gatekeeping NALSA had tried to avoid; a person’s identity now depended on a government office acting on their declaration, not on the declaration alone.[12] The 2019 Act was also criticised because the punishments it set for sexual assault and other crimes against transgender persons were distinctly lower than the punishments the Indian Penal Code prescribed for similar crimes against women, a gap PRS Legislative Research flagged while the Bill was still before Parliament.[13]
Nevertheless, section 4(2) mattered; Whatever the certificate’s bureaucratic cost, no medical opinion was needed to obtain one. The government’s role was to register a person’s stated identity, not to verify it. That distinction is what the 2026 Amendment erases.
Part III: The 2026 Amendment as a Full Reversal
The Transgender Persons (Protection of Rights) Amendment Bill, 2026 was introduced in the Lok Sabha on 13 March 2026 and passed both Houses within a fortnight: the Lok Sabha on 24 March, the Rajya Sabha on 25 March, both by voice vote and against an opposition walkout demanding referral to a select committee.[14] President Droupadi Murmu gave her assent on 30 March 2026.[15]
The Amendment does four things. First, it deletes section 4(2) of the 2019 Act outright, so the statutory right to self-perceived gender identity no longer exists.[16] Second, the previous broad definition of “transgender person” is replaced by a specific list: kinner, hijra, aravani, jogta, or eunuch as socio-cultural identities; individuals with intersex variations; and those compelled into a transgender identity through forced medical intervention.[17] This new definition excludes anyone who identifies as transgender solely based on their personal self-perception, which encompasses a significant portion of trans men, trans women, and non-binary individuals. Third, the issuance of a certificate by a District Magistrate is contingent upon an examination and recommendation of the applicant by a medical board, headed by either a Chief or Deputy Chief Medical Officer.[18] Fourth, the Amendment creates new offences for compelling or “alluring” a person into a transgender identity, with sentences running from ten years to life imprisonment, with fines, and mandatory life imprisonment where the victim is a child.[19] Critics fear that the ambiguous penal provisions under section 18 of the Act, that criminalizes the vague concepts of “compulsion” and “allurement” could deter allies and mutual aid networks from providing essential support to transgender individuals out of fear of wrongful prosecution.[20]
Each of these changes, taken alone, might be defended as an anti-trafficking or child-protection measure. Taken together, they do something else: they replace a right of self-declaration with a right that a government doctor has to approve, and they write large numbers of transgender people out of the statute’s protection altogether. The government’s own framing supports this reading. Replying to the debate in the Rajya Sabha, the Social Justice and Empowerment Minister described the Bill as protection for people affected by biological factors, not for those who simply identify as transgender, a distinction that has no obvious place in a standard built around a person’s own stated sense of identity.[21]
Part IV: The Pending Challenge
None of this has been definitively established as law. On April 24, 2026, Laxmi Narayan Tripathi filed a writ petition invoking Article 32, which permits individuals to approach the Supreme Court directly when a fundamental right is violated. The petition contends that the Amendment violates Articles 14, 15, 19, and 21.[22] On May 4, 2026, a bench led by the Chief Justice of India issued notice to the Union government and the states but declined to grant an interim stay, signalling that the matter would go to a larger bench.[23]
The Union then moved to consolidate the various challenges filed in different High Courts into a single proceeding before the Supreme Court, in a transfer petition styled Union of India v Nai Bhor Sanstha & Ors. In June 2026, the Court stayed the High Court proceedings so that it could decide the constitutional question itself.[24] The Amendment is therefore currently in force but under a cloud: the Supreme Court has neither struck it down nor cleared it, and has effectively frozen every other court from ruling on it in the meantime.
This procedural posture matters for how the rest of this article should be read. What follows is not a prediction of how the Court will rule. It is an assessment of the arguments the Court will have to weigh, and a case for why several of them favour the petitioners.
Part V: Could Parliament Do This?
Article 13(2) of the Constitution states that the state cannot make a law that takes away or narrows a fundamental right, and that any law which does is void to that extent.[25] NALSA placed the right to self-perceived gender identity inside Article 21.[26] Once a right is formally recognized, a law that swaps it i.e. self-declaration to third-party medical sign-off, is not a minor adjustment to how the right is exercised. It removes the specific feature the Court said was constitutionally required: freedom from having to prove one’s identity to someone else. Parliament can, of course, legislate on subjects within its competence, including welfare law for transgender persons, but that general power does not answer a narrower question: can an ordinary statute reinstate the very biological test a constitutional bench told the country not to use. Article 13(2) suggests it cannot, whatever label the Amendment carries.
There is also a proportionality problem. The government’s stated aim, stopping people from falsely claiming transgender status to access welfare benefits or reservations, might be a legitimate goal. But the Supreme Court’s own proportionality standard, set out in Justice K S Puttaswamy v Union of India, asks not just whether a goal is legitimate but whether the chosen means are necessary, meaning whether a less restrictive option could achieve the same result.[27] Before the Court, the Solicitor General argued the penal provisions target only coercive practices, not ordinary self-identification; counsel for the petitioners countered that no welfare scheme currently creates enough incentive for large-scale false claims to justify blanket certification for every applicant.[28] Even granting the government the benefit of the doubt on its motive, a rebuttable presumption in favour of self-declaration, with medical scrutiny reserved for cases someone actually disputes, would address the stated concern without removing the right for everyone else. Requiring every applicant to pass through a medical board is a broader restriction than the stated goal requires.
The closed or specific list of categories raises a separate equality problem. Article 14 permits classification, but only where there is a rational connection between the classification and the law’s purpose. If the purpose is to protect a historically disadvantaged group while guarding against misuse, there is no obvious reason to exclude self-identifying trans men, trans women, and non-binary applicants altogether rather than simply subjecting their applications to whatever verification others go through. The exclusion does not just create an inconvenience. It removes an entire category of people from the Act’s offences, welfare measures, and anti-discrimination protections, leaving them with less legal protection in 2026 than the 2019 Act gave them.
The penal provisions deserve particular scrutiny. An offence for compelling or alluring someone into a transgender identity sounds narrow, but the language is broad enough to reach doctors providing gender-affirming care, or family and community members supporting someone’s transition, who are often the people transgender individuals in India rely on most.[29] India has been here before. The Criminal Tribes Act, 1871 also used the language of protection and public order to place entire communities, including hijra communities, under criminal suspicion by default.[30] The 2026 Amendment does not revive that statute, but it repeats its structure: define a group narrowly, treat departures from the definition with suspicion, and use criminal law to police the boundary. That structure sits uneasily with a Constitution that, in NALSA, told the state to do the opposite.
Conclusion
The pattern across these three moments, NALSA, the 2019 Act, and the 2026 Amendment, is not gradual improvement but a slow withdrawal of an already-recognised right. NALSA located self-perceived gender identity within Article 21. The 2019 Act kept the substance while adding a bureaucratic step. The 2026 Amendment removed the substance and narrowed who the law protects at all.
Article 13(2), the proportionality standard from Puttaswamy, and the equal protection guarantee under Article 14 point the same way: the Amendment goes further than its stated purpose requires, and does so by reinstating a test the Supreme Court specifically rejected twelve years earlier. When the pending petitions are finally heard, the Court has grounds to apply a stricter standard of review than it would to a law that simply declines to extend a new right, because this Amendment takes one away.
Short of striking the Amendment down entirely, the Court could read the certification requirement as a rebuttable presumption rather than a precondition, restoring self-declaration as the default rule. Parliament, for its part, would do well to revisit the closed definitional list through genuine consultation with transgender communities, the kind of consultation NALSA treated as basic to any law affecting their rights in the first place.
Reference(S):
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.
Laxmi Narayan Tripathi v Union of India, Writ Petition (Civil) No. 548 of 2026 (SC) (pending).
Union of India v Nai Bhor Sanstha & Ors, Transfer Petition (SC) (pending).
Legislation
Constitution of India 1950, arts 13, 14, 15, 19, 21.
Criminal Tribes Act 1871 (India) (repealed 1952).
Transgender Persons (Protection of Rights) Act 2019 (India).
Transgender Persons (Protection of Rights) Amendment Act 2026 (India), Bill No. 79 of 2026.
Secondary Sources
All India Radio News, ‘Lok Sabha Takes Up Transgender Persons Amendment Bill, 2026 for Consideration and Passing’ (newsonair.gov.in, 24 March 2026) <https://www.newsonair.gov.in/lok-sabha-takes-up-transgender-persons-amendment-bill-2026-for-consideration-and-passing> accessed 22 July 2026.
All India Radio News, ‘Parliament Passes Transgender Persons (Protection of Rights) Amendment Bill, 2026 After Rajya Sabha Nod’ (newsonair.gov.in, 26 March 2026) <https://www.newsonair.gov.in/parliament-passes-transgender-persons-protection-of-rights-amendment-bill-2026-after-rajya-sabha-nod> accessed 22 July 2026.
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 22 July 2026.
Centre for Law and Policy Research, ‘Conversations on the Transgender Persons (Protection of Rights) Act, 2019’ (23 March 2020) <https://clpr.org.in/blog/conversations-on-transgender-persons-protection-of-rights-act-2019/> accessed 22 July 2026.
LawBeat, ‘Supreme Court Stays All High Court Cases Against Transgender Amendment Act 2026; Will Hear Matter Itself’ (15 June 2026) <https://lawbeat.in/top-stories/supreme-court-stays-all-high-court-cases-against-transgender-amendment-act-2026-will-hear-matter-itself-1602192> accessed 22 July 2026.
Press Trust of India, ‘Parliament Passes Transgender Rights Amendment Bill 2026 Amid Opposition Concerns in Rajya Sabha’ (Careers360, 25 March 2026) <https://news.careers360.com/parliament-passes-transgender-rights-amendment-bill-2026-amid-opposition-concerns-in-rajya-sabha/amp> accessed 22 July 2026.
PRS Legislative Research, ‘The Transgender Persons (Protection of Rights) Bill, 2019: Issues for Consideration’ (PRS India) <https://prsindia.org/billtrack/prs-products/issues-for-consideration-3283> accessed 22 July 2026.
PRS Legislative Research, ‘The Transgender Persons (Protection of Rights) Amendment Bill, 2026’ (PRS India, 13 March 2026) <https://prsindia.org/billtrack/the-transgender-persons-protection-of-rights-amendment-bill-2026> accessed 22 July 2026.
Supreme Court Observer, ‘Challenge to the Transgender Persons Amendment Act, 2026’ (2026) <https://www.scobserver.in/cases/challenge-to-the-transgender-persons-amendment-act-2026/> accessed 22 July 2026.
Vidhi Centre for Legal Policy, Comments on the Transgender Persons (Protection of Rights) Amendment Bill, 2026 (Vidhi Centre for Legal Policy 2026) 3.
[1]National Legal Services Authority v Union of India (2014) 5 SCC 438.
[2]Transgender Persons (Protection of Rights) Amendment Act 2026 (India) (amending the Transgender Persons (Protection of Rights) Act 2019, s 4(2)).
[3]Supreme Court Observer, ‘Challenge to the Transgender Persons Amendment Act, 2026’ (2026) <https://www.scobserver.in/cases/challenge-to-the-transgender-persons-amendment-act-2026/> accessed 22 July 2026.
[4]Transgender Persons (Protection of Rights) Act 2019 (India), s 4(2) (as originally enacted).
[5]Transgender Persons (Protection of Rights) Amendment Act 2026 (India).
[6]NALSA (n 1), arising out of Writ Petition (Civil) No. 400 of 2012.
[7]NALSA (n 1).
[8]NALSA (n 1).
[9]NALSA (n 1).
[10]NALSA (n 1).
[11]Transgender Persons (Protection of Rights) Act 2019 (India), s 4(2) (since deleted by the Amendment Act 2026).
[12]PRS Legislative Research, ‘The Transgender Persons (Protection of Rights) Bill, 2019: Issues for Consideration’ (PRS India) <https://prsindia.org/billtrack/prs-products/issues-for-consideration-3283> accessed 22 July 2026.
[13]ibid; see also Centre for Law and Policy Research, ‘Conversations on the Transgender Persons (Protection of Rights) Act, 2019’ (23 March 2020) <https://clpr.org.in/blog/conversations-on-transgender-persons-protection-of-rights-act-2019/> accessed 22 July 2026.
[14]PRS Legislative Research, ‘The Transgender Persons (Protection of Rights) Amendment Bill, 2026’ (PRS India, 13 March 2026) <https://prsindia.org/billtrack/the-transgender-persons-protection-of-rights-amendment-bill-2026> accessed 22 July 2026.
[15]All India Radio News, ‘Parliament Passes Transgender Persons (Protection of Rights) Amendment Bill, 2026 After Rajya Sabha Nod’ (newsonair.gov.in, 26 March 2026) <https://www.newsonair.gov.in/parliament-passes-transgender-persons-protection-of-rights-amendment-bill-2026-after-rajya-sabha-nod>; 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 22 July 2026.
[16]PRS Legislative Research (n 14).
[17]PRS Legislative Research (n 14).
[18]PRS Legislative Research (n 14); All India Radio News, ‘Lok Sabha Takes Up Transgender Persons Amendment Bill, 2026 for Consideration and Passing’ (newsonair.gov.in, 24 March 2026) <https://www.newsonair.gov.in/lok-sabha-takes-up-transgender-persons-amendment-bill-2026-for-consideration-and-passing> accessed 22 July 2026.
[19]PRS Legislative Research (n 14).
[20] Press Trust of India, ‘Parliament Passes Transgender Rights Amendment Bill 2026 Amid Opposition Concerns in Rajya Sabha’ (Careers360, 25 March 2026)
[21] Vidhi Centre for Legal Policy, Comments on the Transgender Persons (Protection of Rights) Amendment Bill, 2026 (Vidhi Centre for Legal Policy 2026) 3.
[22] Supreme Court Observer (n 3).
[23] ibid; see also Debby Jain, ‘Supreme Court Seeks Union’s Response on Challenge to Transgender Rights (Amendment) Act, Asks if Self-Identification Could be Misused’ (LiveLaw, 4 May 2026).
[24]LawBeat, ‘Supreme Court Stays All High Court Cases Against Transgender Amendment Act 2026; Will Hear Matter Itself’ (15 June 2026) <https://lawbeat.in/top-stories/supreme-court-stays-all-high-court-cases-against-transgender-amendment-act-2026-will-hear-matter-itself-1602192> accessed 22 July 2026.
[25]Constitution of India 1950, art 13(2).
[26]NALSA (n 1).
[27]Justice K S Puttaswamy v Union of India (2017) 10 SCC 1.
[28]Supreme Court Observer (n 3); Debby Jain (n 23).
[29]PRS Legislative Research (n 14).
[30]Criminal Tribes Act 1871 (India) (repealed 1952); see NALSA (n 1) on the continuing legal and social stigmatisation of hijra communities traceable to colonial-era criminalisation.
