Introduction
On March 25, Parliament passed the Transgender Persons (Protection of Rights) Amendment Bill, 2026, after approval from the Rajya Sabha. One of the most important changes in this Bill is the removal of a key provision from the 2019 law.
Earlier, Section 4(2) of the Transgender Persons (Protection of Rights) Act, 2019 gave transgender persons the right to identify their own gender (self-perceived identity). The new Amendment removes this right completely.
This article examines the Amendment on five major issues:
- The new definition of “transgender.”
- The right to self-identify gender
- The problem of retrospective (backdated) changes
- Whether the Amendment matches the purpose of the original law
- Lack of affirmative action (reservation and support measures)
Who is a Transgender Person? A Problem with the New Definition
The Amendment changes the meaning of “transgender” in a way that goes against what the Supreme Court had earlier said.
In the landmark NALSA judgment (2014), the Supreme Court described transgender persons as those whose gender identity, expression, or behaviour does not match their biological sex.
However, the new Bill limits the definition to only three categories:
- Traditional identities like hijra, kinner, aravani, etc.
- People with intersex conditions (biological variations at birth)
- People forced to present as transgender
This is very different from the earlier law, which defined a transgender person as someone whose gender does not match the one assigned at birth.
The biggest change is this:
- Earlier: Identity was based on how a person feels and identifies
- Now: Identity is based more on biological or external factors
The Supreme Court had clearly stated that gender identity is a deeply personal experience. By removing self-identification, the Amendment goes against this principle.
Self-Determination as a Fundamental Right
In the NALSA judgment, the Supreme Court said that every person has the right to choose their own gender identity, and the government must legally recognize it.
This right is protected under Article 21 of the Constitution, which guarantees personal liberty.
The Court also reinforced this idea in the Puttaswamy (privacy) judgment, where it said that people have the freedom to make personal choices about their lives, identity, and beliefs.
By removing the right to self-identify gender, the Amendment raises serious constitutional concerns. It may violate fundamental rights guaranteed by the Constitution.
The Problem with Retrospective Changes
The Amendment also introduces a troubling clause. It says that certain people “shall never have been included” as transgender persons under the law.
This means the law is trying to change the past.
For example:
- A person who was legally recognized as transgender under the 2019 Act
- Updated their documents and accessed benefits
Now faces uncertainty because their identity may no longer be valid under the new law.
The Supreme Court has repeatedly said that laws should not take away rights that people already have. Such retrospective changes can create confusion and legal instability.
Not Aligned with the Purpose of the Original Law
The 2019 Act was created to protect the rights and welfare of transgender persons.
However, the Amendment importantly goes against this goal. It mixes up two different concepts:
- Intersex persons: People with biological differences
- Transgender persons: People whose gender identity differs from their assigned sex
These are not the same. One is biological, the other is psychological.
By treating them as similar, the law creates confusion. It may also make it harder for transgender persons to get proper recognition, especially those who do not fit biological categories.
Lack of Affirmative Action
In the NALSA judgment, the Supreme Court directed the government to treat transgender persons as a socially and educationally backward class and provide them reservations and other benefits.
However:
- The 2019 Act did not include such provisions
- The 2026 Amendment also stays silent on this issue
This shows that an important direction from the Supreme Court is still not being implemented.
Conclusion
The Transgender Persons Amendment Bill, 2026, raises several serious concerns.
- It removes the right to self-identify gender
- It changes the definition of transgender in a restrictive way
- It introduces retrospective changes that affect existing rights
- It confuses different categories like intersex and transgender
- It ignores the need for affirmative action
Overall, instead of strengthening the rights of transgender persons, the Amendment appears to weaken them.
The original law was already criticized for not fully meeting constitutional standards set by the Supreme Court. Rather than fixing those issues, this Amendment makes them more serious and moves further away from the goal of protecting transgender rights.
Disclaimer: The views expressed are personal and do not necessarily reflect those of Lex Attorney Alliance India.
