The Transgender Persons (Protection of Rights) Amendment Bill, 2026, introduced in the Lok Sabha, proposes to limit the definition of transgender person, undoing years of activism, judicial pronouncements, and legislative action. The problem lies in the suspicion of self-perceived gender identity. In NALSA v Union of India, the Supreme Court protected gender identity under Article 21 of the Constitution (dignity and autonomy): It held that “gender identity refers to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth. It refers to an individual’s self-identification as a man, woman, transgender or other identified category”. The Bill unsettles this foundation.
What is self-perceived identity? Self-identification is an individual’s sense of their own gender. Gender is the way of being, and it determines how one feels, dresses, socialises, or behaves. Gender identity emerges at the interplay of one’s understanding of self and societal recognition. If one’s biological sex aligns with their gender identity, societal expectations, roles, and responsibilities seemingly align with the person’s self-presentation. The issue arises when the sex and gender are not in alignment. This is where the need to affirm an identity for oneself becomes central. Self-determination is a tool to reclaim space that society fails to offer.
Self-identification is different from, and independent of, the bureaucratic process of legally recognising gender identity. Under the Transgender Persons (Protection of Rights) Act, 2019, the district magistrate follows a prescribed process to issue a transgender certificate. Further, if a person identifies specifically as a man or a woman, they are required to submit proof of medical intervention. This bureaucratic burden makes it difficult for transgender persons to get an identity card and access essential services.
The Bill aims to protect “a specified class of socially or culturally known as transgender persons who face societal discrimination of an extreme and oppressive nature”. It states that the existing definition is too broad, thus making it impossible to identify the real beneficiaries. This, apart from the issues explained below, turns a mere administrative inconvenience into an unconstitutional legislative direction.
The Bill attacks the fundamental principle that people can self-identify with their gender identity. It limits the scope of the Act to only cover transpeople of a particular socio-cultural category, who are most visible in public, for example, hijras, kinnars, aravanis, jogtas. It removes from the ambit of protection people, those who may self-identify specifically as a man or a woman, as well as those who identify as non-binary, genderqueer. This narrows the scope of who is recognised as transgender and denies them key protections that the Act provides.
To illusrate, going ahead trans men or non-binary individuals, who are already invisibilised within the community, may not be allowed to legally affirm their gender identity or be protected under the Act against discrimination in educational establishments, employment, or denial of goods or services based on their identity. They may not be able to receive the benefits of the State’s schemes and welfare measures for trans persons, such as subsidies in housing, free health care and insurance, and support for starting their own small businesses.
The assumption that visibility of the identity guides discrimination ignores ground reality. It forgets that there are invisible, differently marginalised members of a community whose concerns will be completely disregarded should the amendments be passed. Discrimination happens as a result of perceived deviation from gender norms. It is played out in failed job offers, unreasonably high rents, hostile interactions, street harassment, and everyday aggressions. The Bill ignores that a self-identified trans man or woman will not stop living merely because of legal non-recognition, but rather, the discrimination will continue precisely because of the lack of protection from the State.
Finally, the offences and penalties focus on “compelling” a person or a child to dress or present as a trans person, or causing bodily injury through any medical or surgical procedures. While the intention is understandable, consultations with the community suggest concerns about how these provisions operate in practice. In several instances, older trans persons who shelter runaway minors or individuals facing violence from their natal families or society have been penalised, with complaints leading to threats, harassment, or prosecution. It is important to carefully define these offences and their essential ingredients. This is to ensure that where an individual consents to and actively seeks gender affirmation or shelter with another trans person, third parties cannot misuse the law to initiate complaints or create legal difficulties. This will require the sensitisation of police and judges.
The Bill thus violates NALSA, pushes gender rights in a regressive direction, and leaves the trans community more vulnerable than before.
Shireen Yachu and Jwalika Balaji are research fellows at the Vidhi Centre for Legal Policy. The views expressed are personal
