The Transgender Persons Amendment Bill, 2026, and its Discontents

**Vansh Manuja

Introduction

On March 25, the Parliament passed the Transgender Persons (Protection of Rights) Amendment Bill, 2026 (“Bill/Amendment”) following clearance by the Rajya Sabha — a piece of legislation that, most consequentially, deletes the provision surrounding the right to a self-perceived gender identity under Section 4(2) of the Transgender Persons (Protection of Rights) Act, 2019 (“Act/principal Act”). The provision as originally enacted read: “Recognition of identity of transgender person. —(1) A transgender person shall have a right to be recognised as such, in accordance with the provisions of this Act. (2) A person recognised as transgender under sub-section (1) shall have a right to self-perceived gender identity.” The Amendment opts for a regressive stance though and removes sub-section (2) in its entirety. 

This piece examines the Amendment against the touchstones of constitutionality and internal consistency within the statute on five grounds. Firstly, it argues against the way the term ‘transgender’  has been defined under the Amendment; secondly, it examines self-determination as a fundamental right; thirdly, it questions the validity of the retroactivity clause; fourthly, it argues that the Amendment is not aligned with the purpose of the principal Act; fifthly, it questions the absence of affirmative action on the States’ side and the constitutional need to provide for the same.

Who is a Transgender Person? The Definitional Challenge

This Amendment challenges the very definition of the word transgender laid down by the Supreme Court (“Court”). The Court in National Legal Services Authority v. Union of India (“NALSA”) proclaimed thus: “Transgender is generally described as an umbrella term for persons whose gender identity, gender expression or behaviour does not conform to their biological sex (para 11)”.

The Bill, however, proceeds on an entirely different premise. It changes the definition to just three categories: first, socio-cultural identities such as kinner, hijra, aravani, jogta, or eunuch; second, persons with intersex variations, defined as those who at birth have congenital variations in one or more sex characteristics, including primary sexual characteristics, external genitalia, chromosomal patterns, gonadal development, and endogenous hormone production or response, or other medically recognised conditions, as compared to typical male or female development; and third, those who were compelled to present as transgender.

This represents a significant shift from the principal Act’s definition of a transgender person as “a person whose gender does not match with the gender assigned to that person at birth.” By deleting the statutory recognition of self-perceived gender identity and anchoring recognition in biological criteria, it departs from and effectively contradicts the Court’s understanding of transgender identity articulated in NALSA.

The Court’s definition turns on three axes: gender identity, gender expression, and behaviour — none of which are biological. Each axis is inherently self-referential, grounded in the individual’s own sense of self rather than any external classification. Biological sex operates within this framework only as a point of contrast and not as a determinant, marking the baseline from which these axes may diverge, but does not govern their substance.  The Amendment, by removing self-perceived identity and routing recognition through biological verification, inverts this entirely, making a mere departure point the destination. 

The Court went further and held: “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 (para 20).” Section 4(2) of the principal Act was the legislative acknowledgement of precisely this distinction. Its removal, therefore, cannot be read as mere statutory reorganisation. It is a substantive retreat from a position that the apex court had already occupied in NALSA.

Self-Determination as a Fundamental Right

In NALSA, the Bench held that every person has a right to determine their gender and that the State is under a corresponding obligation to legally recognise the same (para 20), providing that the right to gender identity was protected under Article 21, laying out that “Self-determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed under Article 21 of the Constitution of India.” (para 69)

The removal of Section 4(2) is not a legislative choice between competing policy frameworks but rather a legislative attempt at departure from a constitutional obligation. Article 13(2) of the Constitution provides that the State shall not make any law which abridges the rights conferred by Part III. The position encapsulated in section 4(2) was (as per the current laws) the only possible way to adhere to the obligation, and thus, the foreclosure of the right to self-determine brings the constitutional validity of the Amendment in question.

This limitation is further reinforced by the recognition of decisional autonomy under Article 21 in Justice K.S. Puttaswamy v. Union of India, where Justice D.Y. Chandrachud, in his concurring opinion, laid out that “Privacy enables each individual to take crucial decisions which find expression in the human personality. It enables individuals to preserve their beliefs, thoughts, expressions, ideas, ideologies, preferences and choices against societal demands of homogeneity. Privacy is an intrinsic recognition of heterogeneity, of the right of the individual to be different and to stand against the tide of conformity in creating a zone of solitude.” (para 168), “Read in conjunction with Article 21, liberty enables the individual to have a choice of preferences on various facets of life including what and how one will eat, the way one will dress, the faith one will espouse and a myriad other matters on which autonomy and self-determination require a choice to be made within the privacy of the mind” (para 169)

The Retroactivity Clause Challenge 

The Amendment’s constitutional transgression is not just limited to the omission discussed earlier but also extends to what it actively introduces. Section 2 (k) (ii) of the bill, while defining a transgender person, states that “… it shall not include, nor shall ever have been so included, persons with different sexual orientations and self-perceived sexual identities.” This retroactive transgression reverses the legally obtained status accorded to transgender persons under Section 4(2) of the principal Act.

The Court has consistently held that statutes affecting substantive rights are presumed to operate prospectively unless the legislature clearly provides otherwise. As the Court observed in Hitendra Vishnu Thakur v. State of Maharashtra, every litigant possesses a vested right in substantive law, and even procedural statutes should not be applied retrospectively, where doing so would create new disabilities in respect of completed transactions (para 25). To further reinforce the same, in Govinddas v. Income Tax Officer, the Court laid out that  “Retrospective operation should not be given to a statute so as to take away or impair an existing right or create a new obligation or impose a new liability.” (para 10)

The practical stakes of this are not abstract. For instance, a person who was validly recognised as transgender under the principal Act under Section 4(2) who may have updated identity documents, access welfare schemes, or build their legal identity around that recognition finds that recognition abruptly destabilised and retrospectively put in doubt. By declaring that certain persons “shall never have been included,” the Amendment retrospectively invalidates a legal status that was validly constituted under the law at the time it was granted. Legislation may redefine legal categories prospectively, but an attempt to retrospectively erase legally recognised identities raises serious concerns under settled principles governing vested rights and strikes a blow against the idea of legal certainty as referenced above.

In Dissonance with the Principal Act’s Purpose

Beyond its constitutional inconsistencies, the Amendment has a deeper conceptual failure that is internal to the statute itself. The principal Act in its preamble states, “An Act to provide for protection of rights of transgender persons and their welfare and for matters connected therewith and incidental thereto.” And ironically the Amendment contradicts the same. 

The Amendment combines two distinct phenomena, i.e., intersex conditions and transgender identity. An intersex person is someone whose biological characteristics do not fit typical definitions of male or female, but  a transgender person is someone whose experienced gender does not align with the sex they were assigned at birth. The first is a biological category; the second is a psychological one. 

There is a chance that they might potentially overlap, but they are not coextensive, giving the State no basis to treat them as such. By way of illustration, under this Amendment, a transgender woman whose body presents as conventionally male, would face the greatest barrier to the recognition she needs most. The Amendment deliberately disregards what transgender identity actually is.

The Affirmative Action Challenge

As per NALSA, the Court directed the Union and State Governments to treat the transgender community as a socially and educationally backward class for the purposes of Articles 15 and 16, and to also extend to them the benefits of affirmative action (para 129). This direction was issued in 2014. The principal Act, which was enacted five years after NALSA, contained no provisions pertaining to affirmative action. The Amendment Bill, introduced in 2026, follows the same pattern on the subject and maintains silence without acknowledgement. 

Conclusion

The Bill falters on multiple constitutional and structural grounds. Instead of simplifying the already burdensome process of self-determination under the principal Act, the Amendment removes it entirely. By removing Section 4(2), it eliminates the only statutory mechanism through which the constitutionally recognised right to self-determination of gender identity could have been exercised under the current laws. 

Its definitional framework collapses the distinction between intersex and transgender, providing a statute that lacks conceptual coherence. Further, the retroactivity clause deepens these concerns by purporting to invalidate a right derived from a statutorily granted legal status. At the same time, the Amendment remains silent on the question of affirmative action, despite the Supreme Court’s explicit direction in NALSA requiring the State to extend reservation and other protective measures to the transgender community.

Taken together, the Amendment reflects not a legislative attempt to strengthen the rights framework established by the principal Act, but a retreat from it. The Act was already criticised for falling short of the constitutional vision articulated in NALSA (check here). Rather than remedying those deficiencies, the present Amendment builds upon them and deepens them, undermining the very normative foundation upon which that law claims to stand.

**Vansh Manuja is a first-year B.A. LL.B. (Hons.) student at Rajiv Gandhi National University of Law, with an interest in constitutional law and public policy.

**Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.