A constitutional analysis of the Transgender Persons Amendment Act 2026, examining the medicalisation of identity and its impact on Article 21 rights.

Introduction to the Transgender Persons Amendment Act 2026

The Transgender Persons (Protection of Rights) Amendment Act,2026 got introduced in just 17 days on 30 march and during the parliamentary debates the opposition members have raised serious concerns regarding the removal of self-identification provisions and the narrowing of legally recognised identities, but even after the protests and opposition walkout the bill got passed by voice vote. 

The 2014 judgment in National Legal Services Authority vs Union of India has recognised self- perceived gender identity as a fundamental right within article 14,19 and 21 of the constitution, the court further held that the constitutional rights cannot be made dependent upon the state approval or the medical procedure. The parliament then enacted the Transgender Persons (Protection of Rights) Act,2019 after this verdict.

In K.S. Puttaswamy v. Union of India (2017) court held that the right to privacy is a fundamental right under article 21. Together the NALSA and puttaswamy formed an constitutional shield around the right of every person including transgender person but now the 2026 amendment act break this shield by amending the 2019 act by narrowing the definition of the “Transgender person” and by the removal of the section 4(2) of the 2019 act that codified the right of self- perceived gender identity.

It has also removed the earlier affidavit-based certification process with the mandatory medical board evaluation and this would be headed by the chief medical officer or deputy chief medical officer so now the legal recognition of identity is dependent on the approval of a state appointed committee.

This article aims to analyse the intense constitutional and social friction caused by the act and also critique the statutory shift from a self- identification model to a medical model,critically examines whether the mandatory medical board violates article 21.

Narrowing definition and erasure of identities

The 2019 defination of the transgender person includes persons whose gender doesn’t match the sex assigned at birth, explicitly including trans men, trans women, intersex persons genderqueer individuals, and those with socio-cultural identities such as hijra, kinner, aravani, and jogta but the new amendment of 2026 removes this open definition fully and also provides a list limited to specific socio- cultural identities and also certain congenital intersex variations.

The consequences of the same is that the trans men trans women who do not clearly fit into these narrow boxes and are losing their existence and are excluded by a parliament that claims that the act will protect them.

Non binary and genderqueer individuals are erased from this list even if they are the growing segment of india’s gender- diverse population.

Persons who have gone through the surgery for gender reassignment or undergone hormone replacement therapy do not fall under this group and are also excluded from all type of statutory protection.

The amendment act aims to protect “genuine” transgender persons but its definition is so narrow that it has excluded the persons who were recognised by the supreme court in NALSA and now after this act they would not receive any protection at all.

New certification procedure: district magistrate and medical boards

Under the transgender protection (protection of rights) Act 2019 if a person submit an affidavit declaring their self- perceived gender identity to the DM and no medical examination was required for that purpose and the DM issue the certificate within the timeline prescribed under the act. So the documentation were minimal and the process was flowed through the national portal for transgender persons. The act was basically the statutory response of the NALSA and also followed the standard of the same. 

Now the 2026 amendment act replaced the affidavit- based certification process and introduced a medical board “authority” between the certificate and the person applying for it., under section 6(1) of that states that the district magistrate after the examination and recommendation of the authority if he considers desirable after taking help from the medical experts, issue the certificate.

It is a very long process starting with the application filed by the person then it goes to the medical board then the board after reviewing makes a recommendation to the DM, then DM may further consult with medical experts then the DM would issue or either reject the certificate.

The 30-day timing which was followed for the whole process to take place which was mentioned in 2019 act but the amendment act of 2026 is silent on the new timeline 

Key Concern raised after this Amendment Act

Rejecting self-identification principle by removing section 4(2) of 2019 act ,the amendment act directly violates the principle of NALSA judgement which is raising questions of constitutional validity of this act.

By explicitly mentioning that the act is not for self -perceived group of people it is actually ignoring a section of the community that was not present historically and who does not fit in that narrow definition it is basically dividing people depending upon who is oppressed enough, that too decided by the state authority then only they would enjoy the rights. 

Transgender identity is treated as a medical condition rather then social or personal identity as it is mandatorily requiring a board headed by chief medical officer to recommend a person’s gender to the DM. by providing identity to a board of doctors would be humiliating and regressive for a transgender person and also this approach is not similar to global best practices and the principle of bodily autonomy and dignity.

There is lack of consultations with transgender right groups, civil society leaders and because of which community members are protesting against the act since the bill’s introduction.

Way Ahead

Most immediate and compulsory step should be legislative step by restoring the section 4(2) of 2019 act which is right to self- perceived gender identity and it must be statutory foundation of the entire certification framework and the individual should be having the sole and final authority on their own gender identity not the state.

The narrow definition of transgender person should be removed and the inclusion of trans men, trans women, intersex persons, non-binary individuals, genderqueer persons, and those with socio-cultural identities should be included as previously covered by 2019 act.

The certification process must be simple, timebound and also affidavit based procedure with no medical component and should also be consisitent with the NALSA standards.

The currently pending constitutional challenges pending in supreme court must result in declaration that the mandatory medical board mechanism,and the hospital reporting mandate are void as per article 13(2).

Key takeaways

The 2026 amendment removes section 4(2) of the 2019 act that codified the fundamental right to self- perceived gender identity which was also established in NALSA and replaces it with the medical board evaluation.

The constitutional double sheild created by the NALSA judgement in 2014 and the puttaswamy judgement of 2017 was overrided by this amendment.

The hospital reporting mandate under section 7(1A) directly violates article 21 as it is voiliting right to privacy by disclosing sensitive medical data to govt. officials 

The amendment’s narrow definition of transgender which is legally erasing trans men, trans women, non-binary, and genderqueer persons from statutory existence.

A constitutional challenge is pending before the Supreme Court and the outcome will determine whether Parliament can succeed in legislating away a fundamental right that the Constitution places beyond the reach of ordinary legislation.

Conclusion 

The Transgender Persons (Protection of Rights) Amendment Act, 2026 was just introduced in 17 days dispite raised concerns by opposition members and also has dismantled a constitutional framework created by supreme court.

The amendment’s narrow definition of “transgender person” further complicate this constitutional concern as it is excluding several identities that had previously received recognition and protection under 2019 act. It has created a  hierarchy of legitimacy within the transgender community, where access to legal right depends not upon an individual’s self-perceived identity but upon conformity by the medical board which is approved by the State. Such an approach is fundamentally inconsistent with the constitutional guarantee of equal citizenship.

Moreover, the mandatory involvement of medical boards and the compulsory hospital reporting reflect a broader process of medicalisation of identity, treating transgender existence as a matter for clinical verification rather than personal determination. This is leading to transgender persons to bureaucratic exclusion.

The constitutional challenge to the Amendment Act presents a question that is not limited to transgender rights alone it asks whether Parliament can, through ordinary legislation, curtail a fundamental right that has been recognised by the courts. The answer to this question will determine not only the future of transgender rights in India but also the broader relationship between individual liberty and state power under the Constitution. The principles of self-identification, dignity, and autonomy must remain at the centre of India’s legal framework governing gender identity.

References 

Cases

  • Justice KS Puttaswamy (Retd) v Union of India (2017) 10 SCC 1. 
  • National Legal Services Authority v Union of India (2014) 5 SCC 438. 

Legislation

  • Constitution of India 1950. 
  • Transgender Persons (Protection of Rights) Act 2019. 
  • Transgender Persons (Protection of Rights) Amendment Act 2026. 

Secondary Sources

Author Profile:

~ Sakshi Kumari
First Year, B.A.LL.B (Hons)
National Law University, Tripura
Publication No.: LL/2026/PUB/A04
Internship ID: LL/IRP/202606/B01/04




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