Transgender rights bill: Freedom to choose gender or law to control?

The Union Government, using its sheer majority in parliament, has passed the Transgender Persons (Protection of Rights) Amendment Bill, 2026, in the face of vociferous opposition from the primary stakeholder, the transgender community. The BJP-led government’s disregard for institutional processes, as well as its failure to consult the affected community, was evident in the fact that the apex body representing transgender persons, namely the National Council for Transgender Persons (NCTP), was neither consulted nor informed of the proposed amendments.

The trajectory on transgender rights in India, with its ups and downs, is one we could all have been proud of. The historic judgment of the Supreme Court in National Legal Services Authority v Union of India triggered a seismic change, as for the first time the rights of transgender persons to autonomy, dignity and the expression of gender identity were constitutionally recognised. Following this judgment, Thiruchi N Siva introduced a Private Member’s Bill which was passed in the Rajya Sabha in 2015. Subsequently, the BJP government introduced its own bill which became the Transgender Persons (Protection of Rights) Act, 2019. The Act itself only partly actualised the rights which the judgment had recognised. Nonetheless, it was an important step forward.

The imperfections of the 2019 legislation were also recognised by the Supreme Court in its judgment in Jane Kaushik v Union of India (2025). In this judgment, the court laid down the principle of omissive discrimination, holding that the 2019 Act, in its very design, perpetuated discrimination against the transgender community through statutory omissions. To remedy these gaps, it constituted a committee chaired by Justice Asha Menon, comprising eminent lawyers conversant with transgender rights as well as representatives of the transgender community.

The 2026 Bill is not based on any consultation with the two key institutional bodies engaged with transgender rights — the NCTP and the Supreme Court committee. Nor was the Bill the outcome of any meaningful community consultation. This democratic deficit in the formulation of the Bill has raised concerns about its impact on transgender rights. The Bill excludes some trans communities from its ambit and criminalises the very process of community formation. At its core, the law seeks to narrowly and strictly define who qualifies as a transgender person.

As per the amendment, the transgender community has three sub categories — the traditional communities like hijra, kinnar, aravani and jogta; those born with intersex variation and those who through ‘force, allurement, inducement, deceit or undue influence’ are ‘compelled’ to ‘outwardly present a transgender identity by ‘mutilation, emasculation, castration or amputation’. The proviso specifically excludes ‘persons with different sexual orientations’ and ‘self perceived sexual identities’.

By contrast, the 2019 Act not only included traditional identities and intersex persons but also explicitly recognised transmen and transwomen, ‘whether or not such person has undergone sex reassignment surgery or hormone therapy or laser therapy or such other therapy’ as well as genderqueer persons.

The intent to be inclusive is manifest in Section 4(2), which states that a person recognised as transgender shall have the ‘right to self-perceived identity’. It is notable that Section 4(2) has been removed in the 2026 amendment.

Autonomy and dignity

The 2026 amendment does not recognise the right of persons to choose their gender, a principle that was central to the National Legal Services Authority (NALSA) judgment. As the statement of objects and reasons notes, ‘the legislative policy was and is intended to protect only those who face severe social exclusion due to biological reasons for no fault of their own and no choice of their own’. In other words, the law conditions the recognition of rights on the premise that gender expression must not involve choice. Under this interpretation, being transgender is separated from both autonomy and dignity.

The policy is also to exclude those who choose to live outside the gender binary. The 2026 Bill declares that, ‘the purpose was and is not to protect each and every class of persons with various gender identities, self-perceived/sex gender identities or gender fluidities.’ The 2026 Bill makes it clear that it has no place for the community of people who dare to choose their gender and express their gender in a way that challenges social stereotypes of masculinity and femininity. The 2026 Bill appears to marginalise or erase communities identifying as genderqueer, non-binary, trans men and trans women.

Even for those who fall within the 2026 definition of transgender, the law maintains a persistent suspicion of the right to self-identify. To obtain a transgender identity certificate, an individual must first secure a certificate from a Medical Board and then submit it to the District Magistrate, who may issue the certificate only if deemed “necessary or desirable.” This provision grants the District Magistrate discretion to deny the certificate based on personal judgement, creating space for biases and prejudices to influence decision-making.

This distrust of the community is also reflected in the requirement that medical institutions which have done gender transition surgeries must furnish details of such persons to the concerned District Magistrate, a provision that undermines the right to privacy.

At its core, the law reflects discomfort with individuals choosing to identify as transgender. It takes this ‘discomfort’ a step further by criminalising anyone who compels a person to ‘dress, present or conduct themselves outwardly as transgender’ by ‘force, allurement, deception or undue influence.’ The intent of this provision is clear. The authors of the amendment appear to discourage people from identifying as transgender and, to achieve this, criminalise anyone who assists a transgender person in asserting their identity, framing such support as ‘allurement’ or ‘undue influence’.

The 2026 Bill represents a regression in terms of rights. In Navtej Singh Johar v Union of India, which decriminalised same-sex relations, the Supreme Court recognised the principle of non-retrogression, meaning that once rights are recognised, they cannot be taken away. It is the responsibility of the constitutional courts to ensure that the transgender community’s right to self-definition of gender, dignity and autonomy continues to be protected and there is no regression from rights to rightlessness.

This aligns with the core requirements of constitutional morality.

(Arvind Narrain is the president of the People’s Union for Civil Liberties- Karnataka)