Rajasthan HC’s scrubbed remarks highlight judicial strain over transgender law

President Droupadi Murmu signed the Transgender Persons (Protection of Rights) Amendment Act, 2026 into law on March 30 — one day before International Transgender Day of Visibility. Parliament pushed the legislation through in only 12 days. The law dismantles years of hard-won progress, overturning the core guarantee of the 2019 Act and the Supreme Court’s landmark 2014 NALSA judgment, which affirmed gender identity as a matter of self-determination requiring no surgery, medical tests, or bureaucratic approval.

The amendments are harsher than critics anticipated. The right to self-identification has been scrapped. ‘Transgender person’ is now defined narrowly as intersex individuals and socio-cultural groups such as hijras and kinnars, erasing trans men, trans women, and genderqueer individuals from the statute. Identity certificates now require approval of a medical board, and a retrospective clause nullifies certificates previously issued under self-declaration. The law also introduces severe criminal penalties — including life imprisonment for ‘coercing or alluring’ someone into a transgender identity — while capping violence against transgender persons at just two years.

The timing was deliberate. The legislation took effect on the same day the Rajasthan High Court, in Ganga Kumari v State of Rajasthan, warned that an inviolable aspect of personhood was being reduced to a State-mediated entitlement. The Bench directed that constitutional guarantees must not be compromised and even granted a 3% horizontal reservation in public education and employment. Yet, in a surprising turn of events, just days later, the court deleted those observations from its official order. Erasing them does not resolve the underlying legal conflicts; it only underscores the growing tension between the judiciary and the State.

The focus now shifts from legislative debate to constitutional challenge. The amendments collide directly with the Supreme Court's NALSA ruling, which recognised gender identity as fundamental to autonomy under Articles 14, 15, and 21 of the Constitution. The 2017 Puttaswamy judgment further cemented the principle that the State cannot compel citizens to prove intimate aspects of identity. Substituting self-perception with a medical board’s verdict is highly problematic, especially since no scientific test for gender identity exists. The retrospective clause strips rights from existing certificate holders, while the newly introduced penal provisions echo the oppressive logic of the colonial-era Criminal Tribes Act, treating transgender identity as recruitment rather than inherent personal discovery.

Lawmakers defend the Bill as a necessary measure to prevent fraud, but the data tell a different story. India's 2011 Census recorded 4.87 lakh transgender persons. During the five years the original 2019 Act was active, only 32,500 identity certificates were issued. Welfare spending hovered around ₹70 crore annually, with just 11% utilisation. The system barely functioned, thus making claims of widespread exploitation highly unlikely. A standard verification process, as used in other welfare programmes, would have sufficed. Instead, the State chose to redefine who is legally allowed to exist.

Pushback was swift. Two members of the National Council for Transgender Persons resigned, citing exclusion from consultations. The Supreme Court’s advisory panel urged withdrawal. A collective of over 140 lawyers petitioned the President under Article 111. Despite this, the government pushed forward, rushing legislation that alters the legal standing of a marginalised community without referral to a parliamentary standing committee or input from those affected.

Five days after presidential assent, activists Laxmi Narayan Tripathi and Zainab Javid Patel filed a public interest litigation in the Supreme Court under Article 32, arguing that the amendment violates equality, dignity, and personal liberty. The apex court is now the battleground for transgender rights.

The Rajasthan High Court's decision to scrub its remarks could be interpreted as the pressure judicial bodies face when criticising government action. Yet the convergence of concern — from a statutory council, an advisory panel, senior legal professionals, and a high court — sends a powerful message.

Indian constitutional law has repeatedly blocked attempts to roll back fundamental rights. The Transgender Amendment Act, 2026, will be the next major test. The Supreme Court’s verdict will decide whether self-determined gender identity remains a human right or is reduced to a concession that the State can grant or withdraw.

At a time when India celebrates milestones such as Menaka Guruswamy becoming the first openly queer Rajya Sabha member, the contradiction is stark: visibility and representation rise even as legal recognition recedes. This law may have been born on the wrong day, but the Constitution still carries the burden of providing the right answer.

Julian Seal Pasari is Assistant Professor of Law, and Avinash Verma is research assistant and student, at the National University of Study and Research in Law (NUSRL), Ranchi. X: @JulianSPasari and @me_avinashwrite.

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.