Simmi Parihar & Darshit Agarwal
Source: Arunesh Blog, “Regressive Bill Insults Trans People, Pushes India Decades Back”, available at https://aruneshblog.com/regressive-bill-insults-trans-people-pushes-india-decades-back/.
Abstract: The Transgender Persons (Protection of Rights) Amendment Act, 2026, tends to fundamentally alter the self-identification regime, which was construed as part of a fundamental right (Article 19(1) (a) in the NALSA v. Union of India judgment) and enacted by the Transgender Persons (Protection of Rights) Act, 2019. The amendment, when seen from the lenses of ground implementation, presents hurdles that move beyond administrative challenges and jeopardise the very aim with which the 2019 Act was initially designed, the welfare of the transgender persons. This blog aims to analyse the amendments concerning their proper functionality at the ground level. We utilised a doctrinal analysis of the existing literature and empirical studies to establish the core argument and highlight the shortcomings of the established framework. The authors conclude by portraying that while the amendment was supposedly aimed at a more targeted approach and to prevent misuse, it effectively excludes a substantial section of transgender persons, for whom it was targeted and designed.
Keywords: Transgender Persons (Protection of Rights) Amendment Act, 2026; State gatekeeping; Self-Identification; Medical Board; Welfare Exclusion
INTRODUCTION
The Transgender Persons (Protection of Rights) Amendment Act, 2026 (hereinafter “2026 Amendment Act”) represents a profound retreat from India’s progressive trajectory in transgender rights. In NALSA v. Union of India (2014), the Supreme Court developed a rights-affirming framework that accorded precedence to individual autonomy and dignity over state surveillance. The court recognised gender identity as an “innate perception” of self and grounded legal recognition in self-identification [para 19]. The Transgender Person (Protection of Rights), 2019 (hereinafter “2019 Act”) upheld the principle, which permitted transgender persons to apply for the Certificate of Identity based on self-identification.
However, the 2026 Amendment Act fundamentally dismantles this framework by requiring a recommendation by a medical board before the certification (amended Section 6(1)). The legislation changes the state’s role from administrative facilitator to medical gatekeeper. The amendment replaces self-determination with biological scrutiny and creates administrative barriers that will deny access to the very people the Act purports to protect. The constitutional validity of the 2026 Amendment Act has been assailed in the Supreme Court on grounds of violation of the right to self-identification, constructed as part of Article 19(1) (a) by the Supreme Court in the NALSA v. Union of India (2014) judgment.
While much of the existing literature critiques the 2026 Amendment Act on the Constitutional grounds, particularly its incompatibility with the Right to Self-Identification, little has been discussed around the administrative barriers in practical implementation of the framework created. This blog goes beyond the Constitutional scrutiny and demonstrates how the 2026 Amendment Act constructs a chain of exclusion that risks hampering the delivery of welfare to a large number of those very people it was initially designed to protect and cater to.
The analysis is divided into three parts. Part 1 elaborates on the structural flaws of the medical evaluation stage, highlighting the absence of comprehensive assessment criteria, undefined composition, infrastructural gaps, and a dearth of procedural safeguards. Part 2 portrays how the amended conceptualisation of Transgender Person as an administrative category in the 2026 Amendment Act tends to exclude a substantial section of transgender persons from the ambit of the act, while also creating a milieu of legal uncertainty about existing certificates among the people. Part 3 traces the cascade from certificate denial to welfare denial, demonstrating how the amendment coerces cis-binary heteronormative identity conformity and denies rights to the very people the schemes were designed to protect.
- THE MEDICAL BOARD -FROM GATEWAY TO GATEKEEPER
Under Sections 5 and 6 of the 2019 Act, a person identifying as transgender could apply directly to the District Magistrate (“DM”) for a Certificate of Identity based on self-identification. The role of DM was largely administrative, which was limited to processing the application. Now the 2026 Amendment Act requires the DM to issue the certificate only after examining the recommendation of a medical board headed by the Chief Medical Officer (“CMO”) or Deputy CMO.
As a result, the Medical Board assumes the central authority in the recognition process, with its recommendation determining the outcome of an application. The question that immediately follows is how the Board is expected to reach such a determination. The answer to that question gives rise to two sets of concerns. The first relates to assessment, while the second concerns implementation and accountability.
- The Absence of Assessment Criteria
While the medical authority must ‘decide’ whether an applicant qualifies to be a transgender person, the 2026 Amendment Act does not specify the medical tests or the standards that can be potentially utilised for such identification. As can be seen from the definitional clause of the 2026 Amendment Act (amended Sec 2k), the Medical Authority’s inquiry is necessarily confined to physical and biological factors, or socio-cultural identity such as Hijra, Kinnar, etc., as mentioned in the act. This creates a significant gap in the framework, as the legislation requires a medical determination without specifying how the transgender identity is to be conclusively established.
This limitation is even reflected in the medical literature. According to The Society for Evidence-Based Gender Medicine (SEGM), there is no objective brain, blood, or any other biological test that can definitively differentiate transgender people from non-transgender people. Similarly, a systematic review revealed, “few measures specifically assess gender identity or dysphoria,” with the majority concentrating on expression rather than identity verification. Gender expression is how a person expresses gender via appearance, behaviour, dress, or mannerisms; this is a key difference since Gender identification refers to an individual’s deeply felt internal experience of gender. So gender expression is not a marker of gender identity. In other words, you can look at someone on the outside, but it does not tell you what gender they identify with on the inside.
Even contemporary medical frameworks do not rely on biological verification in this context. The WHO’s ICD-11 recognises gender incongruence based on a persistent self-reported experience rather than objective medical testing. Although some studies suggest that genetic factors may influence gender identity, researchers have not identified any specific gene or genetic profile capable of reliably determining whether an individual is transgender. Batista and Oliveira’s 2024 review concluded that gender identity emerges from a complex interplay of biological and social factors and that no specific gene or genetic profile can reliably determine whether an individual is transgender.
Similar understanding was also reflected in NALSA v. Union of India (2014), where the Supreme Court recognised gender identity as an “innate perception” of self and grounded legal recognition in self-identification rather than biological verification. The Court further elaborated that every individual uses gender identity to reflect how an individual sees themselves on the inside, not how one looks outside. It also means that a trans man who has identified as male for decades should not have to submit to medical examinations or need surgical proof of his identity, with his own self-identification being sufficient.[para 19] In the teeth of such understanding is the justifications given by the executive authority, who tends to mandate the requirement of medical examination, on the pretext of ‘preventing misuse’ (by reducing primary beneficiaries) and ‘ensuring targeted welfare distribution’. Such a justification is weakened by the absence of any objective or scientifically accepted method for determining transgender identity.
The 2026 Amendment Act also remains silent on the medical board composition, which further creates uncertainty regarding how the transgender identity is to be assessed. This omission is significant because the expertise of board members becomes important in the absence of a recognised objective method. A psychologist or psychiatrist may be better placed to evaluate psychological indicators, an endocrinologist to interpret biological factors, and community representatives to provide insight into socio-cultural identities recognised by the Act. The phrase “other medical experts” grants broad discretion regarding the composition of the board.
- The Problem of Implementation and Accountability
Even if one assumes that a functional assessment framework can be developed, there remain substantial practical and procedural challenges to implementation. India faces a severe shortage of mental health professionals. The psychiatrist-to-population ratio is approximately 0.75 per 100,000 people (see here). This is less than the WHO Mental Health Atlas 2014 recommendation of 1.7 per 100,000 and the current WHO minimum of 3 per 100,000. This deficit means that to meet international standards, India requires around 36,000 more psychiatrists.
This concern is amplified by the limited integration of transgender health into medical education. A study in 2025 revealed that, despite legal protection, Indian medical curricula lack trans-affirmative competencies. A survey from Tamil Nadu among OBG residents found that 47.1% were unaware of recommendations about Gender Reassignment Surgery, and only 51.5% felt competent in looking after transgender patients. Around 98.5% were ready to undergo further training to improve their knowledge. Similarly, in other parts of India, healthcare providers lack knowledge about transgender-specific health care needs and guidelines, leaving them unable to adequately address the health concerns of transgender patients.
These deficiencies directly affect the work of the Medical Board. Certification being routed through district boards means the availability of specialists will vary considerably across districts. Candidates living in rural and peri-urban areas find accessing the required specialists for the certification process to be especially challenging. Candidates often require repeated travel and extended wait times (see here). Consequently, an applicant’s access to legal recognition and the speed with which they achieve it may be contingent on healthcare resources in their district, as opposed to their actual eligibility.
Furthermore, the 2026 Amendment Act provides no mechanism for appeal and identifies no authority empowered to review the findings of the Medical Board. As a result, a decision that directly affects an individual’s legal recognition and access to welfare benefits may remain effectively unchallenged. This is particularly concerning given the absence of prescribed assessment standards, which increases the possibility of inconsistent or erroneous determinations. Administrative power is thus created without a corresponding framework for accountability.
- THE NARROWED DEFINITION AND ITS EXCLUSIONARY EFFECTS
While the 2019 Act recognised self-identification as sufficient for issuance of a Certificate of Identity, even then, only around 6.7% of the transgender population has obtained a certificate according to the 2011 census. There were already questions surrounding the effective accessibility of the mechanism to the marginalised people. Now, the 2026 Amendment Act, by addition of an administration-determined recommendation system, further perils their formal and state-recognised demographic visibility.
Under the newly added Section 2(aa), the obligation has been put on the state executive authorities to constitute a medical board. The primary statutory guidance that the administrative authorities have to follow, while exercising the delegated power, is in the form of the 2026 Amendment Act’s definitional clause (amended Sec 2(k)). However, the amended definitional clause portrays how the very meaning and sense of the transgender identity has been confused and narrowed to the extent that it risks excluding the main intended beneficiaries, the transgender persons, from the ambit of the 2026 Amendment Act. The exclusionary consequences of the amended definition emerge at two levels. First, it risks excluding many transgender persons from the statutory category of “Transgender Person”. Secondly, it narrows recognition of socio-cultural identities.
- Exclusion of the transgender person from the category of transgender persons
Initially, the Transgender Persons (Protection of Rights) 2019 Act, under Sec 2(k), clubbed intersex persons along with transgender persons, to form an administrative category of ‘Transgender Persons’, to cater to them together. However, the difference between the two is of great importance and needs to be highlighted. A transgender person refers to a non-cisgender person, or those people who don’t identify with the gender identity that has been assigned to them at their birth. E.g., Trans-men refer to those individuals who have the anatomy and body of a female, while identifying as male. They are often labelled as having a ‘psychological illness’ that can be ‘treated’. Different from this is the category of intersex people, which refers to natural variation in biological sex characteristics, those different from typical binary male-female biological sex characteristics. E.g., the development of a foetus with just a Single X chromosome (45, X), or the development of a foetus with XXY chromosomes (47XXY), or any other way. They are often labelled as having a ‘defective body’, for not meeting the binary male-female body anatomy.
The 2019 Act, while clubbing them together, ensured that both are recognised, well catered to, and protected by the welfare mechanism. However, the 2026 Amendment Act undoes this clubbing in such a manner that it excludes a large number of transgender people (non-cisgender people) from the administrative category of ‘Transgender Persons’ (the one created by the statute). This is because, as mentioned in Part 1, while the amended definitional clause limits itself to examination of biological traits, which might aid in determining the intersex, there is no medical assessment indicated and included that conclusively and accurately determines the identity of a transgender person, which is primarily based on self-perception and self-identification. Thus, the required medical assessment might effectively end up excluding a large number of transgender persons from the definition of the ‘Transgender Person’, as defined in the 2026 Amendment Act.
- Exclusion of the other regional and social identities
Section 2(k)(i) of the 2026 Amendment Act restrains the transgender identity to only a very limited social-cultural identities like kinner, hijra, aravani, and jogta, or eunuch. Such a limited and mainstream-based approach overlooks the other social transgender identities that exist in the different parts of India. For example, it omitted Thirunangai and Thirunambi (trans-women and trans-men in Tamil Nadu), Kothi (born male, identify as a female), and Nupi Maanbi (trans women in Manipuri), to name a few, from the definition of ‘Transgender Person’ as defined in the 2026 Amendment Act. Such selective recognition risks marginalising those transgender communities who have enjoyed regional and socio-cultural acceptance for long.
The ambiguity in the amendment further extends to the proviso attached to the definitional clause, which provides that it ‘shall not include’ or ‘shall never have been so included’ the self-perceived sexual identities. This language utilised is quite vague and leaves a question whether the 2026 Amendment Act operates only prospectively or whether it invalidates certificates already issued before the amendment. Even the Delhi High Court, while hearing a challenge to the status of issued certificates, raised the concern about the ambiguity. Individuals who have held certificates for years do not know whether those certificates remain valid.
- WELFARE DENIAL AND COERCIVE ADOPTION OF IDENTITIES
The major welfare schemes designated for transgender persons, like the SMILE scholarship (Rs. 13,500/year), Garima Greh shelter homes, Ayushman Bharat TG Plus (Rs. 5 lakh health cover), skill development programmes, and government job reservations, mandate a Certificate of Identity for access. However, the added medical scrutiny and the following restricted issuance of the certificate, due to limited social categories in the 2026 Amendment Act, render the schemes inaccessible to a large part of the people it was designed for. Thus, the amendment, which was purportedly aimed at preventing misuse and ensuring a more targeted approach, might restrict the benefit only to a few, or worse, only to paper.
This affects the concerned transgender persons in a dual manner. Firstly, due to a lack of a Certificate of Identity, they will not be able to benefit from the schemes that were supposedly designed for them. Further, as a result of this, they might not be left with any other option but to access the general scheme. However, since many of the mainstream state welfare schemes and infrastructure are built on a cis-binary heteronormative understanding of gender, they might unwillingly have to adopt an identity to which they might not truly connect themselves. Even those whose identity belongs to regional categories and have not been recognised by the 2026 Amendment Act, like Thirunangai and Thirunambi, might have to either fit themselves into the statutory walls or may have to give up their transgender identity altogether. In such cases, welfare is ensured not by cooperation and collaboration but rather by force and coercion.
Ultimately, what the state does is to hang a gender-determination sword on the head of transgender persons. If a person fails the medical board’s assessment, the state does not merely deny them a certificate. It de jure declares that the de facto identity they have, and with which they have lived throughout, does not exist. This may trigger a severe level of gender dysphoria, which happens due to a sense of gender mismatch, in the role assigned to them by society, or, as the case may be, by the State, and in what one identifies themselves with.
CONCLUSION
The Transgender Persons (Protection of Rights) Amendment Act, 2026, marks a significant departure from the self-identification framework recognised by the Supreme Court, and subsequently incorporated into the 2019 Act. While the 2026 Amendment Act has been purported as a mechanism to ensure targeted application and prevent misuse, the framework it creates is conceptually flawed and administratively burdensome. By making legal recognition contingent on medical recommendation, the 2026 Amendment Act tends to transform the basis of gender identity from personal choice to state-regulated medical assessment, even when there is no universally accepted medical methodology capable of conclusively determining transgender identity.
The absence of clear assessment standards, the lack of guidance regarding the composition and functioning of Medical Boards, infrastructural limitations, and the absence of appellate safeguards collectively create a legal-recognition regime that is vulnerable to exclusion and arbitrariness. The flawed statutory construction of ‘Transgender Person’ also jeopardises excluding numerous individuals and regional identities that form an important part of the community. The amendment further threatens to sever the link between transgender persons and the welfare schemes specifically designed for their protection, with the increased barriers to certification further translating into barriers to healthcare, education, housing, employment, and social security.
Ultimately, the central question raised above is not merely whether the State may regulate the process of legal recognition, but whether such regulation is useful when it undermines the very objectives of welfare and inclusion that the legislation purports to advance. While the constitutional validity of the 2026 Amendment Act has been assailed in the Supreme Court, its long-term legitimacy will depend not only on its formal validity but also on whether it is capable of protecting the transgender persons for whom the law was originally enacted.
Simmi Parihar is a second-year B.A. LL.B. (Hons.) student at National Law University, Delhi
Darshit Agarwal is a second-year B.A. LL.B. (Hons.) student at National Law University, Delhi.