From Self Identification to State Verification: Constitutional Critique of Transgender Persons (Amendment) Act 2026

Authored by Shreshtha Sharma, a 2nd-year law student at Dharmashastra National Law University, Jabalpur

Representational Image/ AI-Generated

Introduction

The Transgender Amendment Bill 2026 received the President’s Assent on 30 March 2026, thereby becoming an Act. This Act has made several significant amendments regarding bodily autonomy, self-perceived identity, and the state medical verification model. In the recent judgement by the Rajasthan High Court, in Ganga Kumari v State of Rajasthan, the court stated that the right to one’s self-identity of gender is a matter of right and not of concession. This further shows the struggle of the transgender minority asserting their rights in society, in contrast to its regulation by the government. Transgender rights were legally recognised in the Judgement of the National Legal Services Authority (NALSA) v Union of India. The judgment affirmed such rights for individuals that were neither alien nor uncommon to constitutional principles, yet difficult to obtain. These being,, the right to self-identify, bodily autonomy and personal liberty under Article 21, right to equality amongst other genders under Article 14 and right to non-discrimination on the grounds of sex under Article 15 of the Constitution respectively.

This article will analyse the Transgender Persons (Amendment) Act 2026 in three parts. It would first highlight the changes between the 2019 Act and the Amended Act, then explain how the Act is not in consonance with various Constitutional doctrines, and finally mention international statutes that may serve as inspiration for the Indian landscape. The main line of argument is that the removal of the choice of self-perceived identity is against the bodily autonomy of transgender individuals, as it takes away their personal liberty to choose their gender. The Transgender Persons (Amendment) Act 2026 removes one of the important sections of the 2019 act, the right of self-perceived identity under Section 4. Another contentious amendment is under section 6, which creates a medical board, shifting from self-determination to state verification. Such a transformation infringes on an individual's rights, violating the principles of equality and the right to live one’s life with dignity. It creates legal friction between rights and regulations, such that this interference with fundamental rights cannot be reasonably justified.

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Comparative Framework of the 2019 v. Transgender Persons (Amendment) Act 2026

The Transgender Act, enacted in 2019, laid down the rights and welfare mechanism under Sections 6, 7 and 8, respectively. Section 4 [2] of the Act emphasised one’s internal identity of sex and established a right of self-perceived identity or self-identification. The certificates were categorised into two types. First mentioned in Section 6 that a person can get a transgender certificate issued by the District Magistrate within 30 days and secondly, the revised certificate under Section 7, which said that if a person wanted to change their gender via a medical procedure, that is the sex reassignment surgery, such should be granted to an individual upon a certificate issued by the Medical Superintendent or Chief Medical Officer of the institution within 15 days of the receipt of application. This meant that a person had two options: a certificate of right to identity without going through a medical surgery and another of a revised certificate after the medical surgery. This does not mandate the compulsory medical surgery upon a transgender.

Inconsistency With the Amended Act 

The Transgender Persons (Amendment) Act 2026 changes the definition of Transgender under Section 2 (k) by giving its interpretation limited to socio-cultural identities, five specific intersex variations and persons compelled to be transgender. Another amendment is in Section 6 with the expansion of the word ‘authority’ constituting a medical board headed by a Chief Medical Officer (CMO) or a Deputy CMO, which is to give a recommendation to the District Magistrate, and if the District Magistrate finds it necessary or desirable to take the assistance of other medical experts, shall issue the certificate of identity to such individual. The issue that arises from this Amendment is that the meaning of certification, which was issued to an individual upon their self-identification, that is, the first type of certificate in Section 6 of the original Act, would not have any substance now, since the idea of self-perceived identification is not taken into consideration anymore. Now, even if a person is identified as transgender, they cannot issue a certificate solely on this basis, and they must abide by the mandatory medical verification by the state to get their certificate. Therefore, the Amended Act departs from the dual framework and narrows the interpretation of transgender individuals.

According to the 2011 census, there are around 4 lakh transgender individuals in India, and the application for the certificate has been made by around 37 thousand. The premise is that, despite the dual-certificate framework, the number of applications remains low. The reasons cited were a lack of awareness, no official documents, and transgender individuals belonging to states, which makes them feel hesitant about their identity. Now that medical verification takes away their dignity to choose their own identity, it could further decrease this number.

Doctrine of Manifest Arbitrariness

The Amended Act is not aligned with the doctrine of Manifest Arbitrariness. Justice Nariman in the Shayara Bano Case observed that if a legislature is capricious, not in consonance with Article 14 and not in the interest of the public, such a legislature is manifestly arbitrary. The Amended Act meets these requirements. Mandatory medical verification imposes an intrusive standard that disregards personal autonomy. This compulsion is not justified by the principles of the Constitution.

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Due Process Doctrine

In Maneka Gandhi v. Union of India, the court laid down the integrated due process doctrine. It meant that the legislature must prescribe a procedure; however, the prescribed medical certificate procedure is rather forced upon than made optional. The procedure must fulfil one or more fundamental rights under Article 19, whereas the Amended Act violates the transgender individuals’ identity of freedom of expression by taking away their right of self-identification. Lastly, it should also be checked in parallel with Article 14, which, when examined, is discriminatory, since gender was made part of the interpretation of equality by the Judgement of NALSA, and this is now subject to regulation.

Doctrine of Proportionality

Justice Sanjay Kishan Kaul in case of Justice K S Puttaswamy (Retd) v. Union of India (2017) gave the test of doctrine of Proportionality by laying down its four prongs. Any restrictions on Fundamental Rights must satisfy Legality, Legitimate Aim, Necessity and Balancing of Interests.  First, with respect to the legality of the legislature. The Amended Act may be procedurally sound but may not confer substantial legality. In Shrimanth Balasaheb Patil v Speaker, Karnataka Legislative Assembly, the court noted that the impact a law has on society is what creates its substance. The substance here results in a violation of fundamental rights by conditioning medical verification and taking away their dignity. Second, it should have a legitimate aim. An effective outcome of the Transgender Act would mean looking at the consequence it would have when Transgenders avail anywelfare schemes in a democratic state after they have obtained the certificate. Welfare policies in India do not mandate a medical certificate for transgender individuals. In the updated guidelines, the eligibility criteria for the Support for Marginalised Individuals for Livelihood and Enterprise [SMILE] Scheme require that a transgender individual submit their “certificate” to avail the welfare and not rely on a certificate obtained after a medical procedure. Medical proof is only relevant in certain situations; that is, if a person has already undergone surgery. This weakens the nexus between mandatory medical verification and welfare schemes. The third prong is to ask the question of whether this Amended Act was a necessity and whether there existed any other alternative that could have achieved its purpose. For example, in Argentina, Law No. 26473 Article 5 places a reservation policy for transgender individuals as 1 per cent in the government sector. Articles 10 and 11 of the same encourage the private sector to hire and employ transgender individuals in a mutually beneficial manner. The Indian government, on similar lines, has introduced Vocational Training to Transgenders under the National Backwards Classes Finance and Development Corporation (NBCFDC) to make them skilled and empowered. However, the eligible candidate would be the one who can obtain a certificate of Identity on the recommendation of the Screening Committee; the committee here complicates the process. Because of the involvement of a diverse pool consisting of the District Social Welfare Officer, Chief Medical Officer, Psychologist or psychiatrist and a representative from the transgender community.  The logic is that if Argentina’s policy can be applied in the Indian context by improvising the eligibility criteria for Vocational Training Schemes, that would be a better alternative than resorting to intrusive medical verification. The final prong is to apply the balancing test: whether the harm caused by the contested amendments is equal to the social benefit ultimately achieved. Here, the conflict between the fundamental rights of transgender individuals versus medical verification remains speculative and unsubstantiated. If the purpose is to legalise the identity of transgender individuals, then it fails on the grounds of narrow interpretation and violation of their rights.

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Inspirations From Other Statutes into the Indian Landscape

The international perspective on Gender is strongly based towards the bodily autonomy and integrity of individuals. The legislation in Spain approved a law (Law 4/2023) which would allow anyone above the age of 16 to change their legally registered gender without medical supervision. In Germany, the Self-Determination Act removed the requirement for two psychiatric assessments and a court hearing, and made the process bureaucratic and devoid of medical procedures by allowing individuals aged 18 or older to change their names and genders on the official record within a three-month period after submitting an application and making a declaration. These show recognition of self-determination at its core. These are consistent with international human rights standards. Article 8 of the European Convention on Human Rights (ECHR) and Article 17 of the International Covenant on Civil and Political Rights (ICCPR) recognise the right to privacy and protection against arbitrary state interference, which has been interpreted to include gender identity as an aspect of personal autonomy. The emphasis, therefore, is on minimising state intrusion in matters central to individual identity. The Indian Government, instead of making medical verification mandatory, should draw inspiration from these jurisdictions and investigate ways to make Transgender people feel secure applying for the certificates in the first place. With respect to the essence of time, a limited period, subject to the advice of policymakers and international practices that address the interests of Transgender rights, can be incorporated into the certificate issuance procedure. In the meantime, while the process is underway, the government may issue a temporary identity card so the person can avail of welfare benefits during the waiting period, such as vocational training under the NBCFDC.

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Conclusion

The Transgender Persons (Amendment) Act 2026 shifts from the constitutional guarantee once given in the 2019 Act. The government, by taking away the right of self-identity, goes one step back and takes away the right it first authorised to the transgender individuals. By showing the reasons that it is not constitutionally valid upon various doctrines, it demands a need to be taken back to its status quo and reestablish the right of self-identification. The legislature can take inspiration from other international legislatures in support of transgender rights by providing vocational training and empowering them. There must be procedural safeguards against abuse of such interference; the Transgender Persons (Amendment) Act 2026 should also provide a timeline for the procedure and issuance of a certificate, similar to the time-bound period in the dual certificate category. This perspective reinforces the need for self-identification as a primary objective. The notion was articulated in the case of Navtej Singh Johar v. Union of India, where Justice Deepak Misra highlighted the doctrine of progressiveness, which ultimately gave rise to the doctrine of non-retrogression. He mentioned that the constitution recognises rights that lead to a fair and reasonable society, and does not take back any right that is against public policy.  It should be understood that the public policy in this context concerns an individual's right to choose their own gender in a democratic state.