Akriti Lamba
Abstract: Transgender communities have existed in India from times immemorial. However, the 2026 Amendment limits the definition of “transgender person”, limiting which communities can claim protection under the law. This piece wishes analyse the Constitutionality of the Amendment, the classificatory basis it uses, and the status of India’s culturally transgender communities.
Introduction
The transgender community in India has existed for centuries. From mentions of a “third gender” in Hindu mythology and early Vedic literature to the concept of “psychological sex” in Jain texts, transgender communities such as the Hijras and Aravanis have a socio-cultural foundation in Indian society. However, the introduction of the Criminal Tribes Act, 1871, criminalised the existence of such communities. Although the Act was repealed in 1952, the prejudicial attitude continued, with individuals being denied basic rights and amenities. The case of National Legal Services Authority v Union of India (2014) (‘NALSA’) affirmed the existence of transgender identities across India. Following the guidelines laid under the NALSA judgment, the Transgender Persons (Protection of Rights) Act, 2019, was passed, codifying laws that dealt with transgender identities. However, this law was criticised by the community for their identity was contingent on executive approval.
The State, too, found the law lacking in serious aspects. It considered the definitions of the 2019 Act to be “vague” and had made it impossible to identify the genuine oppressed persons to whom the benefits of the Act are intended to reach. Based on such fundamental issues, the Transgender Persons (Protection of Rights) Amendment Act, 2026, was passed by the legislature. The aim of the Amendment is to provide protection to only those classes of people that face extreme social discrimination and exclusion. However, the Amendment, in its under-inclusive classification, fails to fulfil the very objectives it sets out.
The present Article will analyse the above contention in the context of the various socio-cultural identities the Amendment protects, and the identities it ignores. It will analyse the revised definition of a “transgender person” to determine who the law defines as ‘transgender’ and explore the implications of the Amendment on individuals who are socially and culturally identified as transgender but have not been afforded a position in the Amendment. Finally, this Article aims to understand the constitutionality of the Amendment by employing the reasonable classification test, and further proposes a framework of socio-cultural reforms to address the constitutional deficiencies identified.
Who Does the Amendment Define As a “Transgender Person”?
Admittedly, the original Act provided a vague definition of who is a “transgender person” under §2(k) of the Transgender Persons (Protection of Rights) Act, 2019. The vagueness of the definition allowed for any individual, through self-perceived, medical, biological, or socio-cultural justifications, to go by their preferred gender identity. However, under the new Amendment, there are specific provisions for three classes of persons to be identified as “transgender”. These include and are limited to: (i) socio-cultural identities (such as hijra, kinner, aravani, jogta); (ii) persons with five specific intersex variations; and (iii) those who were “compelled” to present as transgender. The Amendment clarifies that the purpose of the Act was not to protect each and every class of persons with gender-fluid identities, but only a specified class of persons who are socially and culturally known as “transgender” and face extreme societal discrimination and oppression.
It is to be noted that the wording of the law with respect to the term “socio-cultural identities” has not been changed. Both the previous Act and the new Amendment begin with the words “A ‘transgender person’ means”, thus showcasing the exhaustive nature of both the laws. However, since the previous Act provided an overarching definition for “transgender person” which afforded all genderqueer individuals a place to claim their identity, the limited definition under socio-cultural identities did not pose a serious issue. But due to the removal of the broader definition, socio-cultural identities under the Amendment have been limited to only five specified categories of people, as set out in cl 2(iv) of the Transgender Persons (Protection of Rights) Amendment Act, 2026. The rationale for this curtailed definition is to protect transgender people who face societal discrimination of an extreme and oppressive nature by recognising only their status and providing them with the support that they need, as stated in the Statement of Objects and Reasons of the Amendment Act. However, in its aim to make the law exhaustive, the legislature has also made it under-inclusive.
The Fate of Undefined Individuals Claiming a Socio-Cultural Basis for Their Transgender Identity
The Amendment, by limiting the definition of “transgender person” to only five specified classes of people, fails to acknowledge various other socio-cultural identities in India who require support and protection from the State. Certain such communities include the Kothi who, in the State’s own studies, have been classified alongside the Hijra community whilst studying the physical and mental health of the two communities. That very study showcased worse mental health due to stigmatisation among the Kothi community, highlighting the fact that the discrimination they face does not vary much from the ‘extreme’ nature of discrimination faced by the Hijra community. Communities such as the Thirunangai of Tamil Nadu, and the Nupi Maanbi of Manipur, are amongst many others who risk their status being taken away by the new Amendment.
By limiting the definition of a “transgender person” to exclude various communities, the Amendment also disables them from availing aids and protections that would have helped lift their position in society. The Transgender Persons (Protection of Rights) Act, 2019 enabled the Nupi Maanbi to obtain identity cards, thus legitimising their existence, an existence which is now at risk of being erased. This failure to provide for the inclusion of such various socio-cultural identities in the Amendment not only underscores the State’s lack of understanding of the various cultures in India, but also fails to pass on constitutional grounds.
Understanding the Reasonableness of the Classification from a Constitutional Standpoint
The court in NALSA interpreted Article 15 of the Constitution of India, 1950, to include ‘gender’ as a ground for discrimination . The legislature, through the Amendment, put what is calls a “reasonable classification” to this expansion by placing differential treatments based on one’s gender. However, it does not disable the Court from using popular jurisprudence to see whether this classification made by the legislature is “reasonable”.
The principle of “reasonable classification” finds its home in Article 14 of the Constitution of India. It lays down that no individual is entitled to absolute equality before the law. The State is allowed to reasonably classify people into certain groups to help for their upliftment in society. To understand whether a classification falls within the Constitutional spirit, the judiciary laid down certain criteria. One of the foremost cases that helped solidify the two-step reasonable classification test was State of West Bengal v Anwar Ali Sarkar (1952), wherein the Court held that for a classification to pass the test, (i) the classification must be founded on an intelligible differentia which distinguishes the ones grouped together from others, and (ii) the differentia must have a rational nexus to the object sought to be achieved by the Act. The current Amendment fails on both grounds.
- Classification Based on Intelligible Differentia
The Amendment’s revised definition of the term “transgender person” is sought to limit the classes of persons to those who “face societal discrimination of an extreme and oppressive nature”, as stated in the Statement of Objects and Reasons. Under this classificatory bracket, the Amendment deems only five socio-cultural communities as belonging to such a classification. However, the wording of the Amendment is too vague for a proper, intelligible differentia to be ascertained. It does not provide a sufficient benchmark as to what would qualify as an “extreme” nature of discrimination and oppression, thus leaving the standards of such evaluation arbitrary.
Using data presented by the State itself, it can be safely stated that other communities such as the Kothis must be included in this classification for their status is seen as akin to, or worse than, the Hijra community in certain aspects. By the Amendment’s own definition, the Hijra are a community that face “societal discrimination of an extreme and oppressive nature”. It can thus be stated that any community occupying a status similar to theirs must be included in the definition of the Amendment. By excluding such communities, the differentia the Amendment claims to create becomes arbitrary, highlighting its exclusive nature.
Further, the State has not presented any evidence or given any justification as to why the five specified categories of person have been the only ones classified as facing discrimination because of their socio-cultural identity. In State of Maharashtra v Indian Hotel and Restaurants Association (2013) (‘Indian Hotel Association’), the Court noted that the legislation’s objects and reasons said nothing about any evidence being presented for the legislation to come into place. Herein, we similarly note that there is no census data or study that could reasonably classify only the five enumerated communities as similarly placed. This lack of any conclusive data on the State’s part adds teeth to the argument on lack of intelligible differentia.
- The Differentia Must Be Based on a Rational Nexus to the Object Sought to Be Achieved by the Act
The main reasoning for the introduction of the Amendment was to clarify the existing vague definition of a “transgender person” so as to provide benefits to only those classes of people who “face societal discrimination of an extreme and oppressive nature”, as per the Statement of Objects and Reasons.
Reiterating the Indian Hotel Association case, there is no clarity as to data that points to misuse of benefits that were provided to all transgender individuals under the old Act. In fact, an NHRC study noted that less than one percent of individuals who approached the Transgender Development Board in West Bengal received any actual benefits, and that in Tamil Nadu, only seventeen percent of transgender individuals benefitted from welfare schemes.
Whilst the Amendment aims to restrict the beneficiaries of schemes to individuals who face discrimination of such an extreme nature that they require it, the data points to a system wherein State benefits are not being sufficiently delivered across the board to all transgender individuals. It cannot be reasonably inferred that by stopping giving benefits to all classes of transgender individuals as defined under the old law, the individuals the Amendment aims to target will automatically obtain them. The retrospective effect of the Amendment may limit the benefits to specific individuals, but it cannot guarantee administrative implementation of it.
Hence, the differentia that the Amendment creates has no rational bearing on the objective it aims to achieve. The re-classification and denial of identity to various communities cannot be inferred to be a reasonable step towards achieving the Amendment’s objective.
Going Beyond the Test of Reasonable Classification
While the “reasonable classification” test is a popular standard often used in jurisprudence, it is not sufficient to evaluate the constitutionality of the amendment in a case where identity is central to the subject matter. The reasonable classification test is rooted in legal formalism, when it must be based on equality and dignity. As noted in the NALSA judgement, gender identity is an intrinsic component of personal liberty under Article 21 of the Constitution, and must thus be protected under the very provisions of the Constitution. Hence in such cases as the one presented by the Amendment, a heightened level of scrutiny in required. The proportionality doctrine, articulated by the nine-judge bench in Justice K S Puttaswamy (Retd) v Union of India (2017), provides the analytical scaffolding for this heightened review. Under this doctrine, any restriction on a fundamental right must satisfy four conditions: it must be sanctioned by law; it must be necessary to achieve a legitimate state aim; it must be proportionate to that necessity and no greater than required; and it must be accompanied by adequate procedural safeguards against abuse. The Amendment, although legislatively enacted, fails the second, third, and fourth conditions.
With regards to the criteria of necessity, while the State’s main aim of providing support to those who face “extreme discrimination” may seem legitimate, the data provided in this very Article contradicts Government claims of misuse. The data is proof only of administrative failure, not of a failing definition. There is, accordingly, no basis to conclude that narrowing the class of legally recognised transgender persons is necessary to achieve the State’s welfare objective. What is required is administrative reform, not definitional exclusion.
As to the argument of proportionality, the complete exclusion of certain cultural identities which are shown to face discrimination similar to the listed categories goes beyond the scale of what is necessary for the State to preserve its goals. The State could have created preferential benefit schemes for target communities without stripping away the rights of all involved stakeholders.
Further, the Amendment fails on the fourth condition which requires adequate procedural safeguards. It provides no transitional mechanism, no review process, and no means by which excluded communities may contest their exclusion, seek reclassification, or obtain alternative legal recognition. By failing to consult relevant stakeholders and legal experts on the ground effects of the Amendment, it fails to provide us with the administrative plan of action that such an Amendment requires. The removal of legal identity is immediate, total, and unreviewable. Communities stripped of recognition lose access not only to welfare benefits, but also to legal protection against violence, employment rights, and healthcare entitlements.
Revisiting the Act
One of the key criticisms the Amendment has received from members of Opposition is the lack of consultation with stakeholders and experts on the part of the Government. The arbitrary removal of the identity of traditional communities from protective laws not only violates the test of ‘reasonable classification’ used in traditional jurisprudence, but it also creates greater social stigmatization for these communities that even the law refuses to recognize.
The most effective way forward would be to include local, culturally rooted transgender communities to understand their needs and requirements and formulate a plan that would be able to equitably address their needs. Not only would this fulfil the goal that the State is trying to achieve, but it would also help ensure that the identity of grassroot-level, indigenous communities is protected. Further, the State must ensure active administrative action at the local level to ensure that their welfare programmes are being sufficiently implemented. This can be done through local support committees and with the help of various NGOs. The State must also collect further data to understand the socio-economic position of culturally transgender communities across India to better address their needs. The current Amendment is aimed at effectively removing all notions of indigenous gender identification that has developed over millennia. While that is an objective that deserves another conversation, such an objective must never harm traditional communities who retain their Constitutional right to express their culture in a pluralist India. Before the State moves forward with the implementation of the provisions of the Amendment, it must take a step back to analyse all potential repercussions that ethnic minorities may face. Accordingly, the Amendment must be further reviewed to be made equitable to truly achieve the goal it sets out.
Akriti Lamba is a second-year B.A. LL.B. (Hons.) student at West Bengal National University of Juridical Science, Kolkata (NUJS).