Introduction

In 2014, the Indian Supreme Court (the Court), in its historic judgment in NALSA v. Union of India, recognised transgender persons as a third gender and thereby upheld the constitutional recognition of their equal rights (among others) to equality, dignity, and freedom of self-perceived gender identity under the Indian Constitution (the Constitution), which were further reaffirmed in the Navtej Singh Johar & Ors. v. Union of India (2018) decision. Consequently, the Transgender Persons (Protection of Rights) Act, 2019 (the Act, 2019) was enacted to help the transgender community realise and enjoy their natural rights, including bodily autonomy, and to protect them from discrimination. Though the Act, 2019, was not fully in keeping with the true spirit of the NALSA judgment, the recent Transgender Persons (Protection of Rights) Amendment Act, 2026 (2026 Amendment), to the Act, 2019, has further diluted the inherent right to self-perceived gender identity. I, therefore, argue that the 2026 Amendment violates the natural rights to self-perceived gender identity and bodily autonomy. I also argue that the extended powers of the medical board under the 2026 Amendment have exposed the transgender community to greater state control and scrutiny, thereby rejecting the ratio decidendi of the NALSA and Justice K.S. Puttaswamy (Retd) v. Union of India (2018) judgments. I further argue that classification under the 2026 Amendment, undermining the constitutional protection of expression, liberty, dignity, and privacy, violates the foundational principles of intelligible differentia and rational nexus under Article 14 of the Constitution. Lastly, I suggest how India may consider the liberal human rights models, which other common-law and civil-law jurisdictions, such as Ireland, Germany, and Argentina, have recognised to protect equal rights regarding gender identity and self-determination.

Right to self-determination of gender identity & bodily autonomy and 2026 Amendment

Fundamentally, gender identity refers to our inner sense of being female, male, or outside this binary. Now, before I formally delve into the importance of the right to self-perceived identity, it is equally pertinent to ask a few elementary questions: Why does an individual need a formal gender identity? Secondly, what happens to those who identify outside the formal binaries of gender identity? Perhaps the answer lies in the social and cultural importance attached to the gender an individual identifies with. The identification of gender as male or female has becomes a prerequisite to an individual’s legibility as human. And therefore, those who do not conform may be considered as less than human and invisible by society and the legal regime. One of the reasons for this invisibility is the potential of self-determination to destabilise the male/female binary upon which many social spaces and legal rights, entitlements, and documents are based. Therefore, when it comes to the self-perceived identity, transgender community faces physical, psychological, and economic violence for the ‘so-called instability’ they cause to the established binary understanding. And, so, the legal regime may sometimes tend to deny one’s identity while vigilantly policing the brutal boundaries of male and female.

In the Indian context, before the historic NALSA judgment, the transgender community had no legal recognition of the gender they identified with. Deciding the issue about the recognition of transgender individuals as a third gender, the division bench of the Court, in NALSA, unequivocally held that every individual has a right to self-determination of gender to which they belong. These rights, though they exist independently of any codified or state-made legal instruments, are further recognised (in a more formal and institutionalised form) within the broader framework of Article 21 and Article 19 of the Constitution. That being said, self-perceived gender identity and bodily autonomy are intertwined with personal expression and cannot be taken away; rather, they are only substantiated by legal fiction, for they are inherent to a human person. Naturally, therefore, how one expresses oneself is exclusively private —be it in the sense of identity, dressing, way of speaking, etc. The right to self-determination of gender identity is a bedrock and a precursor to other rights, such as liberty, human dignity, and the right to life in a broader sense.

2026 Amendment, the expanding state control, and the right to privacy

The legislature enacted the Act, 2019, to give life to the Court’s verdict in NALSA, which legally recognised the right of transgender community to self-determination of gender identity and bodily autonomy. It was particularly Section 4(2) which envisaged this right. However, the recently introduced 2026 Amendment exhibits a direction which is completely antithetical to the right of self-perceived identity. The 2026 Amendment, omitting Section 4(2), explicitly excludes ‘persons with different sexual orientations and self-perceived sexual identities’ from the meaning of ‘transgender person’. It additionally modifies the process for issuing the certificate of recognition to a transgender person by entrusting the medical board, and, further, the district magistrate, with extraordinary powers to decide on recognition. Therefore, recognition now depends on institutional validation, thereby replacing a right with permission. It goes against the very foundation of the NALSA judgment wherein the Court held that “. . . no one shall be forced to undergo medical procedures, including SRS, sterilization or hormonal therapy, as a requirement for legal recognition of their gender identity.” As a result, the rights of self-determination and bodily autonomy have been substantially diluted by the 2026 Amendment, with the state assuming sweeping authority and control to invade an individual’s personal life and privacy. The kind of power these authorities enjoy under the 2026 Amendment impinges on the right to privacy unjustly and unreasonably and fails the test of proportionality as evolved by the 9-judge Constitution bench of the Court in the Puttaswamy judgment, where it held that there has to be (i) existence of a law; (ii) must serve a legitimate State aim; and (iii) proportionality. The 2026 Amendment violates the very first facet of this test, as the right to privacy can be regulated in accordance with the procedure established by law; it is well-established precedent that such a procedure must be just, fair, and reasonable. The present scenario sanctions invasion of privacy, disregarding the right to self-perceived gender identity (which cannot be a legitimate state aim), and therefore, is not just, fair, and reasonable, and hence, fails the test of proportionality in its entirety.

On the right to equality

NALSA rightfully affirmed the equal rights (equality before the law and equal protection of the laws) of transgender people under Article 14 of the Constitution by treating them at par with the binary understanding of male and female genders. The 2026 Amendment creates an unreasonable classification (hierarchy) between those who are socially & culturally identified as transgender (e.g. kinner, hijra, aravani and jogta, or eunuch) or are biologically observable and those with self-perceived identity; thereby, rejecting the ratio of NALSA. Therefore, it fails the foundational test of equality, which requires a causal connection between the intelligible differentia and the rational nexus. The purported objective of the so-called intelligible differentia as envisaged by the 2026 Amendment is to recognise transgender people; however, it is actually to exclude those who continue exercising the natural right to self-perceived gender identity as protected by the Constitution. Therefore, this objective, being violative of NALSA and the Constitution, is unfair and unjust; hence, the differentia or classification brought out to promote inequality rather than eradicate it is unconstitutional and stands bad in law, and also violates Articles 15, 19(1)(a), and 21 of the Constitution.

Conclusion

As the transgender community remains one of the socially neglected, vulnerable, educationally and economically backward sections of society, the 2026 Amendment has the potential to deepen further the intersectional (including but not limited to caste, religion, race, disability, etc.) discrimination against the transgender community. The official data on transgender recognition as available on the official website of the Department of Social Justice and Empowerment, Ministry of Social Justice and Empowerment, Government of India, shows a total of 48,707 applications, 33,303 certificates issued, 33,303 ID cards issued, 4,451 not eligible, and 9,714 pending. (as accessed on 2^nd September 2026). This number is indicative of the lack of awareness as to their rights among transgender community. The 2026 Amendment, taking away their right to self-identity, will further push back the upliftment of the transgender community in India.