Parushni Jathar & Devanshi V Kasnia
Source: Credits: Thane Pride Protest on April 16th, 2026
Abstract: Omissive discrimination emerged in Jane Kaushik V. Union of India as a recourse to the fallacious Transgender Persons (Protection of Rights) Act, 2019. However the Court’s distorted application of Article 142 further watered down the right to self-determination by resorting to the antiquated Medical Model in the Transgender Amendment Act, 2026.
I. Introduction
The Transgender Amendment Act, 2026 significantly altered the nature of self-perceived gender identity in India. It introduced a mandate involving medical board certification in order for a person to be classified under the now narrow legal definition legal gender identities, diluting the essence of the NALSA v Union of India judgement. The NALSA judgement allowed the legislature to take cognizance of the gaps in the existing frameworks regarding protection of Transgender persons. However, the Transgender Persons (Protection of Rights) Act, 2019 was riddled with pitfalls as it merely recognised the rights of transgender persons but did not create any mechanisms to aid the materialisation of the same. The popular critique blamed the language of the Act to have caused the rift between the rights and its praxis. The naturalisation of this critique compelled the judiciary to take cognizance of the legislative lethargy in creating conditions to close the rift. In Jane Kaushik v. Union of India, the court recognised that the State’s duty is not limited to preventing discrimination but extends to an obligation to accommodate differences. This understanding is grounded in the principle of equality in the Constitution and requires the bridging of the gap between constitutional requisites and actual access. The Court verbalised that the framework of reasonable accommodation is a positive obligation on the State and the discretion to not act amounts to omissive discrimination.
The Jane Kaushik judgement ended on a note to the Parliament to re-look its own legislation and encompass the solutions and directions suggested by the courts by virtue of Article 142. The aim was to challenge the rudimentary understanding of the concerns of the transgender community and remedy the absence of infrastructural support.
However, with the enactment of the 2026 Act, the legislature reinforced the historical ‘medical model’ by restricting the right to self-determination through medical intervention. This medicalisation of transgender identity through explicit statutory exclusions narrowed the protections guaranteed by the NALSA judgement. The 2026 Amendment serves as a direct contrast to the suggestions made in Jane Kaushik and demands an examination of the derelictions and the accountability for the same. But under the jurisdiction of Article 142, these suggestions are scrutinised on the grounds of fulfilling the requisite judicial creativity in order to render ‘complete justice’. Hence, the attention to pressure groups and the courts became merely a farce. The legislature used the silences in the judgement and the half-baked utilisation of Article 142 to their advantage as it continued to advance its ignorance in its pursuit to water-down the NALSA judgement.
This blog attempts to address the flawed legislation by deconstructing the foundational understanding of the State. The reliance of the State on the pathologizing medical model has led to significant exclusions of the transgender community from the sociopolitical sphere. These exclusions were driven by the omissions and inaction of the State to dilute the judicial reasonings. While Jane Kaushik judgement provides a framework to remedy the 2026 Act, the omissions by the bench have also contributed to the upheaval of the NALSA judgement.
II. Usage of the medical model in law to legitimise transgender identity
The right to self-determination, premised on the recognition by the Supreme Court that gender identity forms a crucial part of one’s personal self, has failed to materialise itself into an effective legal tool for the transgender and intersex community. The Transgender Persons Act, 2019 and The Transgender Amendment Act, 2026, both reveal several lacunae that have rendered the legislature’s stance on the right to self-determination inconsistent with that of the judiciary’s. The 2019 Act was enacted with the aim to affirm the developments that had taken place within courts, specifically the NALSA judgement, wherein the right to gender identity was accepted as ingrained in the right to life, autonomy and dignity. Nevertheless, the enactment and the rules accompanied with it reflected a restricted understanding of the right to self-determination. The 2019 Act, although allowing any person to receive a certificate of identity as a ‘transgender’ person without medical examination, mandated that if a transgender person chose to change their gender identity as male or female, this could only be done after undergoing medical treatment. This usage of the medical model by law makers to grant recognition and rights to transgender persons is further exemplified in the 2026 Amendment Act.
The ‘medical model’ understands transgender identity as a psychological condition, categorising every transgender person as suffering from Gender Identity Disorder (GID), and thus requiring medical treatment. The model lacked the element of voluntariness, which is an essential feature of contemporary gender-affirming care. The reliance placed by law-makers on the medical model essentializes gender identity. The model limits gender identity to the binary, as it aims to normalize them by fitting them into existing gender binaries and thus excludes a vast portion of the transgender community whose gender does not conform to either male or female.
The statement of objects and reasons of the 2026 amendment bill explicitly excludes the class of persons with ‘various gender identities, self-perceived identities or gender fluidities’. The definition of transgender persons laid down by the act is seemingly done with the intent to protect the ‘genuine oppressed persons’. The classification of the marginalized into ‘genuine’ and ‘bogus’ by the government is based on the argument of fraud and misuse. The assumption is that affirmative measures enacted for the marginalized are often manipulated by the people claiming the transgender identity to commit fraud against the system. [This reasoning of the Parliament lacked any empirical data and documentation. The Ministry of Social Justice and Empowerment and the Ministry of Home Affairs, answering to RTI applications, have cited use of “no reports, filed or separate documents” in the process of drafting the Act. To tackle the misuse of the right to self-determination, the medical model is seen as the accurate remedy by the government. The focus on fraud and misuse to aid an oppressed community is where the measures of the government fail. Notwithstanding the lack of evidence or data to back this narrative, it has been used as the basis to exclude an entire class of persons from exercising their right to self-determination under articles 19 and 21.
Critics of the medical model argue against legitimacy based on medicine. The model fails to take into account the intersectionality within the trans community. The class of persons unable to access medical treatment due to income constraints and social stigma are amongst those disregarded. The 2019 act and the 2020 rules directed the government to provide sex-reassignment surgery and hormonal therapy, however, discrimination and stigmatization restricted access along with the lack of government initiatives. Furthermore, as the medical model associates transgender identity with Gender Identity Disorder, it stigmatizes transgender persons rather than granting legitimacy or establishing social authority for the community. Butler explains how being diagnosed with GID is often seen as to be ‘ill, sick, wrong, out of order, and abnormal’. Advocates of the medical model use the trapped childhood narrative to gain validation which further exemplifies the attachment of transgender identity to an abnormality rather than perceiving it as a core part of a person’s selfhood. The medical model reifies the performance of gender which exists in the binary construction of gender. This potentially results in those not identifying with either binary, adopting one in order to navigate daily life. The exclusion concretised by the 2026 Amendment could lead to possible reduction in access to welfare measures available to the transgender community, resulting in denial of trans-related care including surgery and hormonal therapy. [
Alternatives to the medical model have been put forth by critics, with some suggesting reliance to be placed on self-determinism without medical evidence. To avoid the essentializing nature of the model, its application should be limitedly employed depending on the circumstances necessitating it. Another submission has been to replace ‘social necessity’ with ‘medical necessity’, making gender-affirming healthcare accessible based on the needs of transgender persons, thereby addressing the difficulties faced by the community due to lack of appropriate healthcare. The need to move away from the medical model and towards gender pluralism in law has been advocated by the transgender community in order to appropriately realise their right to self-determination.
III. Theorizing omission
Drawing from the medical model, the fervour against the 2026 Amendment bill has been stretched beyond the State mandating documentation and proofs, to omit self-determination.
Cheong[1] theoretically conceptualises “omission” by outlining a condition of being left out by administrative institutions like census and civil records and registers systems. This omission is not due to an error or lapse in the executive but is a political strategy. One experiences omission administratively, by being left outside of the sociopolitical sphere. The condition of exclusion is a strong ground to claim rights, resources or membership. However, the State escapes the burden of claims by preventing the “unwanted population” from accessing material and practical resources to establish their legal personhood through papers and records. Thus, Cheong purposively utilises the language of omission to define the “negative space” existing beyond the prevalent social life. The omitted persons are avoided from categorization, even the categories that are used to marginalize.
Jane Kaushik v. Union of India extended a similar understanding of omission, to recognise discrimination operationalised through silences, narrow drafting of statutes, exclusion of certain identities from legal protection, failure of the law to protect certain groups or recognise particular forms of disadvantage. This judgement serves as a reminder of how we have jurisprudentially moved away from the focus on “intent” and “commission” in discriminatory law to recognising the effect as sufficient to locate marginalisation and its remedy. Lieutenant Colonel Nitisha v. Union of India propounded the doctrine of indirect discrimination wherein facially neutral rules that are binding equally but have disproportionate effect on certain sections of the society. This doctrine reflects Court’s inclination towards substantive equality and recognised the presence of unconscious biases devoid of explicit mala fide intention and the effect of law in furthering unjust status quo. Nitisha (supra) also hinted at American doctrine of “disparate discrimination” which indicated the necessity of introducing efficacious infrastructure that does not reinforce inequality but resolves it. This became the premise for the court to extend substantive equality to expand legislative duty in the form of legislative omission. Unlike in absolute legislative omission where the legislature fails to exercise its duty to lay down a framework in furtherance of the constitutional principles; in the context of the 2026 Act relative legislative omission is observed. Given the circumstance, the subject matter has not been completely overlooked but owing to the gaps in the legislation, the constitutional mandate has been violated.
Thus, synthesizing Cheong’s[2] and the SC’s understanding of omission, presently one can understand omissive discrimination on two levels. Firstly, from the lens of administrative actions and secondly its implications on the transgender community.
S.3 of the 2026 Amendment Bill explicitly omits S.4 of the previous 2019 Bill that had recognised self-perceived gender identity. This omission solidifies the medical model’s application as it perpetuated marginalisation which squarely contrasts Sandra Fredman’s Four Dimensional approach to substantive equality. Fredman posits the four dimensions to be, “to redress disadvantage; to address stigma, stereotyping , prejudice and violence; to enhance voice and participation; and to accommodate difference and achieve structural change ” These four dimensions are not mutually exclusive and a holistic application of this framework would resolve the conflict concerning substantive equality. The collapse of the difference between transgender and intersex, not only fails to accommodate difference but also perpetuates a stereotypical and binary understanding of the queer community that continues to oscillate between male and female classification. The implications of the omission has led to the stifling of their participation in the public discourse and puts them in a situation worse off by way of exclusion of the community from State resources and protections. This conflict pivots away from substantive equality by also contradicting the principles laid down by NALSA and Jane Kaushik. The Legislature needs to address not only the definitional or linguistic omission but also the omission of the act to create efficacious systems to support the transgender community and resolve the stigma and stereotypes. Lastly, it effectively erases the statutory protections guaranteed to the transgender community, that constitutionally recognised the right to self-determination. Cheong’s outline of omission complements this implication, as the erasure of claims on resources and rights are left outside the human political organisation. Furthermore, the retroactivity of the Act leaves the persons who had prior to the Act received their status along with the non-conformists who do not undergo the invasive administrative processes to be left outside the sociopolitical structure as well. This leaves their claims unaddressed, and in order to have their grievances considered by the State they are expected to comply with their rules and procedure at the cost of their personhood. To be part of the social and political organisation of the State meant the omission of the right of an individual to assert their own identity, instead the freedoms must align with State-defined categories.
IV. The Court’s apathetic approach to Art 142 instrumentalised by the legislature
The court in Jane Kaushik recognised that the legislative duty to protect is not limited to prohibition of discrimination as explained in Article 15. The duty extends to undertaking practical measures to redress the historical disadvantage. The failure to exercise the positive duty of the was conceptualised as Omissive discrimination under the jurisdiction of Article 142, envisaging “complete justice” by acknowledging the violence.
A.142 is a constitutional space for the judiciary to employ creative justiciability as observed in Vishakha v. State of Rajasthan. In Jane Kaushik, paragraph 199 fulfils the requirement of judicial creativity by mandating creation of helpline numbers. However, the rest of the suggestions are sufficient under the writ alone. The language of judicial suggestions are couched in discretionary duties imposed on the legislature due to the burgeoning fear of triggering separation of powers, undercuts judicial authority under the said provision. The courts further assume the duty to fill the vacuum left by the legislature when confronted with violations of Part III arising from legislative omission, to an extent as to redress the disadvantage, while maintaining that it cannot assume the function that constitutionally belongs to the legislature.
While the court identified points of omissive discrimination in the 2019 legislation, the judgement itself has become a site of omissive discrimination..
Gautam Bhatia problematizes the facts to argue this case to not be an ordinary case. The employing of expansive remedies like the continuing mandamus and Article 142 culminates to be only performative. It fails to fill the lacunae as imagined by Article 142 or the continuing mandamus.
V. Conclusion
Despite its perils, Jane Kaushik becomes a tool to protect the transgender community from legislative omission. In order to reaffirm the 2026 Act as unconstitutional before the courts, omissive discrimination can be instrumentalised to give the courts a suitable gate way to formalise the aforementioned jurisprudence to prevent future Amendments that sidestep judicial decisions. An omissive discrimination framework unifies the rights to its praxis and shrinks the negative space created at the behest of the legislature. Therefore, emulating a framework to be considered by the legislature to create a comprehensive and inclusive legislation that agrees with the principles of substantive equality.
[1] Amanda R. Cheong ‘Theorizing Omission: State Strategies for Withholding Official Recognition of Personhood’ (Sociological Theory Vol. 41, No. 4 2023) 378-379
[2] Amanda R. Cheong ‘Theorizing Omission: State Strategies for Withholding Official Recognition of Personhood’ (Sociological Theory Vol. 41, No. 4 2023) 378-379
Parushni Jathar is a 3rd year BA LLB (Hons.) student at BITS Law School, Mumbai.
Devanshi V Kasnia is a 3rd year BA LLB (Hons.) student at BITS Law School, Mumbai.