Undoing a hard-won right

Parliament has passed the Transgender Persons (Protection of Rights) Amendment Bill, 2026. Had it not passed in such haste, opposition to it would have become quite considerable, especially from the transgender and the broader LGBTQIA+ community.

What is it about the Bill that evoked such sharp responses opposing it? In 2014, the Supreme Court decided the National Legal Services Authority (NALSA) matter relating to the right of transgender persons to the recognition of their gender. Until then, only two genders – male and female – were recognised in law. The petitioners argued for the recognition of the third gender. The Supreme Court noted that in ancient India, the social fabric included diverse transgender communities. Moreover, diverse religious scriptures – Hindu, Buddhist, and Jain – recognised transgender persons. In Islam, too, transgender persons were given their due recognition.

The Supreme Court’s question was whether this should be determined by biological features or by psychological assessment. After examining laws in other countries, the Court specifically rejected the assessment based on biological or physical characteristics and adopted a psychological assessment. This implies that transgender persons themselves know whether a dissonance exists between their physical/biological sex and their feelings about their gender. The Supreme Court held that transgender identity would be determined by self-identification and the government would accord recognition to the identity on that basis. This formed the basis for rejecting the physical/biological assessment to determine whether a person is transgender or not.

The Transgender Act has been in existence for more than six years. It has not caused serious grievances regarding the process of determining the transgender status. This makes last week’s move to formulate the Bill appear abrupt.

Section 2 of the Bill amends Section 2 of the Act. It recognises three categories of transgender persons. First, a person having such socio-cultural identities as kinner, hijra, aravani, and jogta, or eunuch. Second, a person with intersex variations specified below or a person who, at birth, has a congenital variation in one or more of the following sex characteristics as compared to male or female development:- (a) primary sexual characteristics; (b) external genitalia; (c) chromosomal patterns; (d) gonadal development; (e) endogenous hormone production or response, or such other medical conditions.

Third, a person or child who has been, by force, allurement, inducement, deceit or undue influence, either with or without consent, compelled to assume, adopt, or outwardly present a transgender identity, by mutilation, emasculation, castration, amputation, or any surgical, chemical, or hormonal procedure or otherwise.

The above-defined categories of persons must undergo an assessment by an authority led by a chief medical officer. The District Magistrate (DM) will consider this authority’s recommendation when issuing a transgender identity certificate. The DM may require another set of ‘medical experts’ to examine the person before granting a certificate. This medicalised and bureaucratic procedure is a far cry from the simple self-determination mandated by NALSA.

Thus, it is evident that the psychological test expounded by the Supreme Court has been disregarded, and the biological test specifically rejected by the Supreme Court has been adopted. The physical or biological test would subject transgender persons to medical examinations by doctors who may lack empathy, which would be intrusive and could violate their right to privacy and bodily autonomy.

Exclusionary framework

It is not known why the government has chosen this amendment. Pertinently, no consultations have been held. What inputs were received and from which quarters is not known. The exclusion of the transgender community from these consultations is a serious flaw.

More striking is the proviso to Section 2. It says:- ‘Provided that it shall not include, nor shall ever have been so included, persons with different sexual orientations and self-perceived sexual identities...’ In other words, certificates issued earlier based on self-perceived gender identity will not be recognised in the future. That may be in line with the sentiments of the Bill, but the catch is in the phrase: “nor shall ever have been so included.”

This would imply that previously issued transgender certificates would be subject to cancellation. This, in one strike, takes away significant gains from the 2014 ruling.

The Act, when it comes into force, will be challenged by a host of actors. One only hopes that the courts will see the inherent injustice in this amendment and intervene to set the law right.

(The writer is a senior advocate practising in the Supreme Court. He argued the NALSA case)