Examining the Constitutional Costs of the Transgender Persons (Protection of Rights) Amendment Act, 2026
In 2014, in the landmark decision NALSA v. Union of India , the Supreme Court affirmed the rights of transgender persons to identify their gender as a fundamental aspect of their dignity, personal liberty, and autonomy under the Constitution. At the same time, the Court directed the Union of India to take appropriate measures for the recognition and welfare of transgender persons. The Parliament of India adopted the Transgender Persons (Protection of Rights) Act, 2019, which came to power in 2020, providing for legal and administrative measures necessary for protecting such persons from discrimination.
On 30 March 2026, the Transgender Persons (Protection of Rights) Amendment Act, 2026 came into force after being ratified by the President of India. The new law amends various provisions of the 2019 Act, primarily those related to gender identity recognition and verification. In relation to the amendments, the Union Government stated that the objective was to prevent “misuse of the benefits” provided under the Act “and addressing the concerns regarding trafficking and coercion.” At the same time, the changes to the legal framework prompted debates about the administrative and medical supervision of transgender persons. In particular, the new law formally discontinues the recognition of self-identification as a cornerstone of legal gender recognition and introduces a more bureaucratic procedure for such recognition.
The issues raised by the amendment are of utmost importance, as the Supreme Court in NALSA v. Union of India acknowledged the dignity of transgender persons and affirmed their rights to privacy, gender identity, marriage, and personal autonomy under the Constitution. In particular, the amendment may challenge the transgender persons’ right to equality, freedom of expression, dignity, privacy, and personal autonomy as guaranteed by the Constitution. Therefore, the issues raised by the amendments should be considered in the context of the Constitution’s fundamental rights and freedoms.
In India’s transgender rights protection framework, the principle of self-identification plays a critical role. Under the 2019 Act, the right to self-identification is explicitly recognized, and the process of legal gender recognition is relatively simple. It only requires a voluntary declaration of one’s desired gender identity without any specific proofs or documents. At the same time, the 2026 Amendment significantly complicates the procedure, introducing mandatory verification by the appropriate authorities. In particular, the amended framework introduces the Medical Board, which consists of a Chief Medical Officer and other experts, which evaluates the application and reports to the District Magistrate. Overall, the amendment replaces the principle of self-identification with administrative and medical oversight.
Furthermore, the 2026 Amendment Act narrows the definition of transgender persons relative to the 2019 Act. In particular, the 2026 Act refers to intersex persons as well as the Hijra, Kinner, Aravani, and Jogta communities falling under the category of transgender persons. However, it simultaneously makes particular distinctions between trans-men, trans-women, and genderqueer persons. Overall, the amendment introduces complications to the legal gender recognition procedure and restricts the scope of the term transgender persons relative to the 2019 Act.
The issues raised by the 2026 Amendment stem from its interference with the rights of transgender persons to self-identification, equality, freedom of expression, dignity, and privacy as guaranteed by the Indian Constitution. In particular, the new law raises questions of whether such rights are violated by the amendments or if the Constitution permits the restrictions as reasonable limitations of rights.
First, the 2026 Act raises questions of its compliance with the constitutional rights of equality and non-discrimination. In particular, Article 14 of the Constitution states that all persons are equal before the law and entitled to the law’s equality protection. Similarly, Article 15 prohibits discrimination on specific grounds, including sex. In NALSA v. Union of India , the Supreme Court affirmed the transgender persons’ rights to dignity, marriage, self-identification, and gender identity and recognized those rights as integral parts of the rights to privacy and equality under Articles 14 and 15. As such, the 2026 Act raises questions of its compliance with Articles 14 and 15, primarily due to potential discrimination on the grounds of gender identity.
Indeed, the amendment discriminates against transgender persons by limiting their rights to legal gender recognition as delineated by the 2019 Act. Furthermore, it makes distinctions between transgender persons on the basis of gender identity, which violates their right to equality. However, the 2026 Act may not necessarily violate Articles 14 and 15 if the differentiation is considered reasonable. Under Article 15(1), the law may make provisions that distinguish between persons on the grounds of sex or other considerations specified in the Constitution.
Second, the issues raised by the 2026 Act concern its compliance with the freedom of expression under Article 19(1)(a). In particular, the amendment raises questions if the restrictions of recognition of legal gender identity interfere with the right to freedom of speech and expression. Generally, Article 19 protects various modes of freedom of expression, including visual, auditory, and vocal as well as the freedom of the press. However, the right to freedom of expression is not absolute but subject to reasonable restrictions. Therefore, the 2026 Act raises questions if such restrictions are permissible under Article 19(1)(a).Under Article 19(1)(a), the freedom of expression encompasses not only speech, writing, and printing but also the freedom of the appearance and dress, including the freedom to adopt and change one’s name. Similarly, the concept of gender identity may be considered part of the freedom of expression. Furthermore, the freedom of expression under Article 19(1)(a) is subject to reasonable restrictions, as delineated by the Constitution and justified by public interest considerations. However, the 2026 Act raises questions if such restrictions may be imposed on transgender persons through limitations of their legal gender recognition.
Third, the issues raised by the 2026 Act concern the right to dignity and privacy under Article 21. In particular, the amendment raises questions of if the interference with the transgender persons’ right to self-identification and legal gender recognition constitutes a deprivation of life or personal liberty as prohibited by Article 21. Furthermore, the amendment raises issues of privacy since the process of legal gender recognition under the 2026 Act presupposes extensive personal information disclosure to the competent authorities.
Under Article 21, the right to life and personal liberty encompasses various rights, including the rights to privacy and autonomy. In K.S. Puttaswamy v. Union of India , the Supreme Court recognized the right to privacy as a fundamental right enshrined in the Constitution. In particular, the Court held that the privacy and autonomy are integral components of the right to life and personal liberty under Article 21. In addition, the Supreme Court affirmed that the protection of privacy is of utmost importance, particularly in relation to the physical and mental well-being, autonomy, and personal choices of individuals. Indeed, the transgender persons’ right to legal gender recognition and self-identification is a significant aspect of their autonomy.
The protection of privacy is particularly relevant to the issues raised by the 2026 Act. In particular, under the new law, the transgender persons must disclose personal information to the competent authorities, including their gender identity, which is a highly private matter. Furthermore, the personal information of such persons may be subject to processing, storage, and other measures by the authorities, which raises additional questions of privacy and data protection. However, it should be noted that neither the Constitution nor the statutes explicitly address the protection of personal data. Therefore, the issues raised by the 2026 Act in the context of privacy and data protection should be considered within the framework of the rights to life and personal liberty under Article 21.
Generally, the issues raised by the 2026 Act concern its compliance with the fundamental rights of equality, freedom of expression, and privacy as guaranteed by the Indian Constitution. The new law interferes with the transgender persons’ rights under the Constitution, particularly the rights to self-identification and legal gender recognition. At the same time, the restrictions introduced by the 2026 Act may be considered reasonable limitations of rights. However, the reasonableness of such restrictions should be assessed within the context of the fundamental rights guaranteed by the Constitution. Therefore, in its interpretation of the Constitution, the Supreme Court should consider the interests of transgender persons in exercising their rights in accordance with the principles of equality and autonomy.
The Transgender Persons (Protection of Rights) Amendment Act, 2026 is currently in force but is subject to a constitutional challenge. The law was adopted by the Parliament of India on 3 March 2026, ratified by the President of India on 30 March 2026, and came into force on 25 May 2026. The constitutional validity of the amendment is currently subject to a reference to the Supreme Court. In particular, the Union Government, Laxmi Narayan Tripathi, Zainab Javid Patel, and other petitioners under Article 32 of the Constitution filed constitutional petitions concerning the amendment’s compliance with the Constitution. The petitions raise questions of if the amendment conforms to the rights of equality, non-discrimination, freedom of expression, dignity, and privacy. They also raise related questions of interpretation of the 2019 Act, the 2026 Amendment, and the Constitution.
The Supreme Court heard the petitions in camera on 15 August 2026 and issued notices to the Union Government and other petitioners. The Supreme Court then directed that the case be heard by a three-judge bench, considering the significance of the issues raised. The three-judge bench consists of the Chief Justice of India, Surya Kant, Justice Joymalya Bagchi, and Justice V. Mohana. Currently, the Supreme Court has neither dismissed nor stayed the 2026 Amendment, and the petitions are pending before the three-judge bench.
The issues raised by the 2026 Amendment also concern transgender identity cards issued under the 2019 Act. In particular, the petitioners argued that the national portal for issuing such cards was disabled, and no cards could be issued after 25 May 2026. The Union Government informed the Supreme Court that the identity cards issued before 25 May 2026 would remain valid despite the 2026 Amendment. The issues raised by the card issuing process are therefore related to the constitutionality of the 2026 Amendment and are subject to further adjudication by the Supreme Court.
The constitutional validity of the 2026 Amendment is also subject to petitions filed before various High Courts. In particular, the Union Government moved to the Supreme Court under Section 139A of the Constitution to transfer the petitions filed before the Delhi, Rajasthan, Karnataka, and Kerala High Courts. On 3 July 2026, the Supreme Court issued notices to the petitioners and respondents and ordered that no further proceedings be taken until the transfer request be decided. Thus, the petitions filed before the High Courts are currently pending before the Supreme Court. The Supreme Court will decide whether to hear those petitions along with the petitions filed directly with it.
As of September 2026, the 2026 Amendment is in force, but its constitutional validity is subject to a reference to the Supreme Court for its advisory opinion. The Supreme Court will soon deliver its opinion on the questions of law raised by the petitions, including those related to the scope of self-identification, the definition of transgender persons, and the validity of the 2026 Amendment. Therefore, the issues raised by the 2026 Amendment Act, particularly those related to the principle of self-identification, are of great significance for transgender persons in India.
The Transgender Persons (Protection of Rights) Amendment Act, 2026 has significantly modified the law concerning the rights and welfare of transgender persons. In particular, the 2026 Act complicates the procedure for legal gender recognition by introducing administrative and medical verification and narrowing the scope of the term transgender persons. The issues raised by the new law include its compliance with the Constitution’s fundamental rights and freedoms, particularly the rights to equality, freedom of expression, and privacy. The Supreme Court’s scrutiny of the 2026 Amendment will be critical in defining the future of transgender rights in India.
THIS ARTICLE IS WRITTEN BY ASHWINI PRAVIN PARDHI FROM DR. BABASAHEB AMBEDKAR SCHOOL OF LAW, NAGPUR
REFERENCES :
National Legal Services Authority v. Union of India , (2014) 5 SCC 438.
The Transgender Persons (Protection of Rights) Act, 2019, Act No. 40 of 2019, India Code.
Justice K.S. Puttaswamy (Retd.) v. Union of India , (2017) 10 SCC 1.
Constitution of India, arts. 14, 15, 19(1)(a) and 21.
The Transgender Persons (Protection of Rights) Amendment Act, 2026, Act No. 3 of 2026.