When State stamps identity: The quiet erosion of trans rights

The Transgender Persons (Protection of Rights) Amendment Act, 2026 departs sharply from the constitutional principles laid down by the Supreme Court and risks undoing hard-won gains.

The Transgender Persons (Protection of Rights) Amendment Act, 2026, recently passed by the Parliament, departs sharply from the constitutional principles laid down by the Supreme Court and risks undoing hard-won gains.

The starting point for any legal discussion on transgender rights in India must remain the landmark Supreme Court judgment in National Legal Services Authority v. Union of India (2014). The Court was unequivocal: gender identity lies at the heart of personal autonomy and dignity, and it is to be determined by self-identification – not by medical procedures or state approval. As the Court observed, “gender identity... forms the core of one’s personal self, based on self-identification, not on surgical or medical procedure.”

It further recognised that this internal sense of self “may or may not correspond with the sex assigned at birth,” and that no citizen can be discriminated against on this ground. In other words, the Constitution protects the right to be, not merely the right to prove.

The 2026 amendment moves in the opposite direction. It introduces a medical board – an “authority” – as a gatekeeper in the process of legal recognition. This is a fundamental shift. Where the 2019 law (imperfect as it was) at least acknowledged self-perceived identity, the amendment conditions recognition on institutional validation.

This is not a minor procedural tweak; it transforms a right into a permission. The removal of the explicit statutory guarantee of “self-perceived gender identity” further entrenches this shift, effectively erasing the legislative reflection of NALSA. The 2020 Transgender Rules were at pains to underscore that no medical or physical verification would be required as a precondition to the issuance of a certificate of identity. Contrary to this, the 2026 amendment makes it mandatory for District Magistrates to consider the recommendation of a medical board as a precondition to the issuance of a certificate of identity. Worse still, it empowers the Magistrate to consult more medical experts.

There is a deeper pattern here, one that resonates beyond gender identity. Persons with disabilities in India are all too familiar with the burden of repeatedly proving their status through intrusive and frequent assessments. Certification regimes, instead of facilitating access, often become tools of exclusion. Persons with disabilities are frequently penalised because different medical boards adopt different approaches, resulting in the same person receiving different disability percentages despite no change in their medical condition. This has real-life consequences for the individual’s educational and employment prospects, as well as their access to legal protections.

The argument that is most often cited to justify such measures is the possibility of misuse. At present, the 2019 Transgender Persons Act gives such persons the same rights that the rest of society takes for granted – inclusive education, non-discriminatory workplaces, and access to public spaces. One is at a loss to understand what misuse of these basic rights is likely to occur by virtue of a medically untested self-identification of transgender identity.

Even assuming that misuse is a genuine concern, in the disability context, the Supreme Court has aptly addressed the flawed logic underlying legal moves that make an entire community suffer just because there may be some black sheep. In Vikash Kumar v. Union Public Service Commission, the issue was whether persons with disabilities without a benchmark disability could access a scribe in examinations.

One argument raised against this facility was the possibility of misuse. The Court rejected this reasoning: the mere possibility of misuse cannot justify denying a benefit to an entire class. If a candidate cheats, you punish the candidate – you do not impose such onerous conditions on everyone that the examination itself becomes inaccessible. The Court offered a vivid analogy: we do not require all students to wear uncomfortable clothing when they come for exams just because some of them might conceal chits in their clothes. Rather, those who cheat are duly punished.

Furthermore, the existing legal framework already contemplates procedural safeguards, such as certification processes under the 2019 Act, which are backed by an affidavit. The question is: does the State believe its own authorities are incapable of administering these safeguards? If not, why impose additional layers of scrutiny that undermine dignity and autonomy?

This amendment reflects a mistrust of self-identification. It replaces a rights-based framework with a regulatory one, where identity is mediated through medical and bureaucratic approval.

The promise of NALSA was simple yet profound: that every individual has the right to define their own identity. Any law that dilutes this promise does not merely fall short; it moves us backwards. India can either build on the transformative vision of its constitutional jurisprudence or retreat into paternalistic control. The 2026 amendment, in its current form, chooses the latter. It may still not be too late to correct course.

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