Sanjay M
Abstract: Gender identity has shifted from a matter of right to one of definition and verification. This article examines the Transgender Amendment Act, 2026, through gender theory, constitutional privacy and equality, and criminalisation, arguing that its reductive definitions, verification mechanisms, and expanded policing powers threaten diverse gender identities and reinforce existing structures.
Introduction
The NALSA judgment, which followed the Naz Foundation case and precluded Navjeet Singh, was considered one of the most progressive landmark judgments of the Supreme Court, even while it faced criticism of homogenising diverse gender identities in one bracket. The Court legitimatized self-identification of gender and defined transgender in a liberal sense, which gave effect to gender Identity as a right under Art. 19 and 21. Following this, the Transgender Persons (Protection of Rights) Act, 2019 was enacted, which borrowed the definition from NALSA. However, in 2026, the Ministry of Social Justice, headed by Minister Virendra Prasad, proposed amending the 2019 Act. The amendment is justified on the ground that Self-identification is susceptible to misuse and redefining who a transgender individual is by limiting it to only socio-cultural groups and intersex individuals; such misuse is cured. However, given that this claim itself remains unsupported by evidence, the redefining is further under scrutiny, and as Senior Counsel A.M. Singhvi notes before the Supreme Court, “there exists no reservation”, calls into question the basis of such concerns. The amendment further introduces a medical board mechanism to verify gender identity and delete’s the Proviso to Section7(3). This is a gross misappropriation of the earlier scheme of the Act, as under the 2019 Act, essentially the proviso of §7(3) which read that rights such as non-discrimination, employment equality and residence were not contingent on formal recognition. By making exercise contingent on certification, the Act imposes substantial bureaucratic barriers on an already marginalised community, undermining substantial equality by gatekeeping accessibility.
I – Gender v/s Sex
“One is not born a woman, but becomes one”
The major disparity in understanding Gender and sex as two distinct factors is quite often overlooked. While sex is a metric of assignment based on the genitalia of an individual assigned at birth, gender, however, is a social construct; gender is what one becomes. Judith Butler showcases that Gender is based on and shaped by notions of personhood, identity and bodily autonomy. The Transgender Amendment Act 2026 essentially re-deposits the normative understanding of gender to mirror sex, the latter of which is ultimately determined by whether one possesses a phallus or a vagina. This is evident in the redefinition of the term transgender.
The definition creates two categories of transgender individuals, one being individuals who identify as transgender based on socio-cultural identity and the second being “Intersex” persons. It is starkly evident how the Act misunderstands gender and sex as one category by how it classifies eunuchs as transgender persons; this is problematic as it goes against the very understanding of what gender is, which rests on personal identity and recognition of what the individual chooses to identify as.
The Criminal Tribes Act defines a eunuch as an individual who is assigned male at birth, but no longer has male reproductive organs, a definition which this Act incorporates. But does, by the very virtue of not possessing a penis, make one a woman? Is this what truly defines femininity? The law does not give a eunuch the necessary choice here to decide what their gender should be, as the Act has already classified them as a transgender person without consent, consultation or adequate understanding. Such a phallogocentric normative framework not only is regressive to gender identity but also reimposes a patriarchal understanding of what it means to be a woman. Such an understanding has been critiqued and discarded by women across the globe, as it defines women primarily through bodily existence, reimposes gender roles, and tries to universally define what it means to be a woman, which often only reflects privileged groups and further eradicates agency.[1] This points to how the law is not only flawed in its understanding of Gender expression but also reproduces gender oppression and masculine imperialism, positing the idea of a “universal masculinity” while femininity appears substantially gendered.
Where the Act attempts to define transgender identity through the use of a metric of sex, it assumes that sex is a stable basis for legal classification. The inclusion of intersex variations under the definition exposes the instability, as the law ironically contradicts its own basis of definition in the case of intersex individuals, where the law defines an intersex person as an individual who has congenital variation since birth and creates five further categories of congenital variation, those being:
- Primary sexual characteristics variation
- External Genitalia
- Chromosomal Patterns
- Gonadal patterns
- Endogenous Hormones
But the basis of this classification is also questionable, as it does not account for lived realities, as chromosomal sex does not necessarily map neatly onto anatomy, hormones, appearance or gender identity. Even if we were to consider chromosomal configurations to be a determinant of sex, variations such as Klinefelter and Turner Syndrome demonstrate that chromosomal characteristics do not necessarily correspond neatly with reproductive anatomy or secondary sexual characteristics. In the former, for instance, an individual may possess typically male reproductive anatomy while hormonal variations may result in comparatively female secondary characteristics, including reduced facial hair, breast development, and a higher-pitched voice. Such divergence between anatomical characteristics and physical presentations demonstrates that biological sex cannot be reduced to a singular characteristic, nor can anatomy alone be presumed to determine gender.
The absence of guidelines governing the basis on which the medical board must function paves the way for the medical board to assess such individuals based on discretion. This creates scope for arbitrary and stigmatised discrimination. And this is particularly problematic where, if such individuals were to choose to undergo transition and apply under the amended §6 of the Act, their anatomical characteristics may be treated as determinative of their gender. For such an individual, the assumption that male reproductive anatomy entails a masculine gender identity would therefore disregard the reality that their gender identity may not correspond to their anatomical characteristics.
II – Constitutionality
The Act’s constitutional infirmity is not merely speculative but evident. The Amendment has produced consequences for transgender persons, as demonstrated by the state-level challenge brought by Akira Mujawar and Rani against the Act at the Karnataka High Court, where interim relief was granted against the stoppage of HRT following the Amendment. The unconstitutionality of the Act operates across Articles 14, 19(1)(a) and 21. Firstly, the Amendment grants the medical board authority to determine gender but provides no statutory substantive criteria, standards or procedural safeguards for what the board is supposed to assess. This showcases that the vice is not merely medical certification; it is unguided medical certification which manifests arbitrariness. And following Shayara Bano v Union of India, such arbitrary state action cannot be allowed to operate.
Further, the definition excludes trans men and other gender-diverse identities. Such a narrow definition bears no intelligible differentia, as these individuals are essentially situated in the same sphere and face the same vulnerabilities, violence, stigmatisation and marginalisation. Excluding them from the definition makes an unreasonable classification between individuals of the same nature; such arbitrary differential treatment standards are entirely unconstitutional under Article 14,[2] thereby violating both forms of substantive and formal equality. But furthermore, the violation of equality here is two-fold, and the difficulty is not only that the law unreasonably classifies but the Yardstick itself bears no rational nexus to the end it seeks to achieve, which in this case is elimination of specific social exclusions these socio-cultural identities have been facing historically.
The requirement under Article 14 is not merely a means and an end, but a justified means to a justified end. In In Re: Section 6A of the Citizenship Act 1955, Justice Chandrachud’s opinion identifies four considerations for Article 14’s analysis of equality: whether the yardstick distinguishes between groups, accords constitutional values, groups similar people together and bears a rational nexus to objective. It is pertinent to note that no such nexus exists. Although the Amendment claims that narrowing the definition will better protect specific groups from discrimination, the Principal Act already prohibited discrimination against transgender persons as a class. Excluding similarly situated persons therefore does not advance that objective. It merely withdraws protection from a constitutionally recognised yet excluded class. The Amendment offers no apparent connection between exclusion and reduced vulnerability to the harm it seeks to remedy. The State may legitimately identify particular categories for targeted protection, but the classificatory yardstick must bear a rational relationship to the object and operate consistently with constitutional values.
Secondly, the Act necessarily infringes on one’s Fundamental Right to expression of gender identity, which is protected under Article 19(1)(a), as NALSA v Union of India recognises gender identity and its expression as constitutionally protected expressions. By not providing a substantially inclusive definition of all gender identities,[3] the Act necessarily burdens expression by not even providing any basis for foreseeable legal recognition of trans men and other gender non-conforming individuals. The Amendment further operates to enable Chilling of such expression by the new penal provisions, which make it a cognizable offence to force an individual to transition. This, necessarily due to a lack of procedural safeguards, allows for misuse of law to deter medical practitioners from providing gender affirming surgeries, as they fear prosecution, thereby chilling the expression and violating Shreya Singhal for such chilling effect.
Lastly, the violation of Article 21 is central, as gender identity is intrinsic to dignity, autonomy and personal Liberty. The State essentially no longer recognises identity but rather determines it, which is beyond its legislative competence. If the violation is assessed on whether it is justified based on the Puttaswamy principles, then it is evident that, primarily by violating the very concept of substantive equality under Article 14, the Act is essentially failing the legality principle. But for the sake of this argument, if we were to look beyond legality, the necessity and proportionality principles are also violated.
Analysing the Amendment alongside the Principal Act, there appears to be no necessity for medical board certification. The State’s objective of preventing fraudulent welfare claims could instead be addressed through targeted verification where specific grounds for suspicion arise; this is pertinent as the recent RTIs reportedly reveal no instance of such “Fraud”. Even assuming, however, that preventing fraudulent claims constitutes a legitimate aim, the medical board is not the least restrictive way to achieve such an objective. As Puttaswamy elaborates, a restriction on liberty must adopt the least restrictive means reasonably available. Such an alternative conveniently shifts the burden from the state to the person and makes the person prove their legitimacy. This reverses the proper allocation of the burden from the claimant onto the person being alleged. No possibility of fraudulent claims can justify subjecting every individual to intrusive medical verification. The Medical Board is essentially acting as a mechanism for the State whereby the State mandates one to prove they are not making a fraudulent claim.
Such a shift unduly burdens the Right to life and Liberty. If the State’s concern is to prevent fraudulent claims, its intervention should be directed towards applications that present specific grounds for suspicion, rather than imposed uniformly upon every applicant. This is shifting back the burden on the state to establish why an individual applicant is fraudulent, while allowing for judicial oversight as a safeguard against arbitrary or mechanical application of the law. A broad blanket prohibition of this kind is inherently violative of the rule of narrow tailoring and proportionality.
Therefore, the Act represents not merely a change in statutory classification but a fundamental shift in the State’s understanding of gender. By conflating sex with gender, the Act is reducing a lived and self-determined identity to a category, disregarding the plurality of gender expressions. This conceptual failure translates to a constitutional infirmity and transforms recognition into regulation, making legal identity contingent upon institutional approval. In doing so, it risks reproducing the precise structures of exclusion that constitutional recognition of gender identity sought to dismantle.
III – Criminalising vulnerability
The Amendment introduces a few key penal provisions in the Principal Act, such as abduction of an individual to coerce them to transition and treating the transition of minors by deeming it as kidnapping, with imprisonment for 10 years or more. Although prima facie these provisions are intended to protect individuals and pursue an idea of prevention, such an enactment is, however, without any corresponding constraints on the institutions that exercise these penal powers, creating scope for over-criminalisation, excessive and disproportionate police intervention against an historically marginalised community and troubling instances of police brutality.
The offence, by virtue of it being a crime with a punishment of 10 years, is essentially an offence of cognizable nature. Thereby, the concern is particularly significant given the absence of offence-specific procedural constraints on the executive, namely the procedure to prevent exercising these charges maliciously. Previously, transgender individuals have been penalised and subjected to policing and detention through laws such as the Criminal tribes Act, 1871 and Immoral Traffic Prevention Act, 1956, and the Kidnapping provisions, whose broad criminal categories enabled authorities to treat their social and economic practises as grounds for intervention. Detention in the former case was based entirely on the crime being a cognizable one, which does not require pre-emptive interrogation or investigation and was weaponised as a mechanism to curb freedom and oppress such social deviants due to stigmatisation.
The historical experience demonstrates that the mere protective objective of a criminal provision cannot justify expanding coercive powers without considering how those powers operate against communities vulnerable to institutional stigma. In the present case, such a new provision could ultimately be reproducing this pattern by creating an offence capable of being invoked against transgender persons without sufficiently defining circumstances in which criminal culpability should arise. Such laws being enforced would aid in censuring and unfairly detaining such communities merely for the reason of discretion granted to the police via the Act.
This concern is particularly significant given the relation to Transgender minors and traditional Gharana systems, as this would further inherently affect such communities and break down the fundamental way in which they work. A. Revathi in her auto biography “A hijra’s life story” showcases how traditionally, Hijra gharanas function on the system of Guru-Chela kinship, by which an older transwoman adopts a younger transgender individual, including those displaced from natal families. Acting in a foster-parent capacity for ostracised individuals. Gharana’s take in minor transgender individuals who are ousted from their natal families due to attached stigma that comes with being gender non-conforming.
Though these Gharana’s take in such individuals and foster them, they are not without cons of their own. There exists a concerning pattern of abuse of power and coercion into sex work that comes with such a power dynamic. Gharana’s do not function the same way other queer kinship communities do; there are persisting troubles of financial dependence, safety and freedom. These systems, as much as they provide foster care on one hand, on the other hand also are highly restrictive and reductive of Individual Autonomy and freedom. The law, by bestowing legitimacy on these groups without sufficiently addressing their shortcomings, is essentially institutionalising oppression and submitting an individual to either align themselves with such a system, which is inherently restrictive or remain closeted otherwise.
Further on, the Institutionalisation risks undermining these very communities that at least offer support to transgender minors. The juxtaposition in the law is interestingly humorous, as on one hand the Act conditions access to protection upon certification, while simultaneously purporting to protect minors against being discriminated against or outcasted from natal families. Historically, for transgender individuals who are outcasted, Gharanas have provided an alternative family when natal families become unsafe or unaccepting. The new penal provisions, however, risk placing these communities under the ambit of kidnapping where they take in minors, irrespective of the circumstances that led them to leave their families. By treating the circumstance of fostering as potentially criminal without accounting for the minor’s circumstances or the protective function of such communities, the provisions for kidnapping could operate in such a way as to deter Gharanas from fostering minors further on, as they would be vulnerable to being charged with the offence of kidnapping.
This is particularly concerning given the absence of offence-specific safeguards against arbitrary enforcement. The amendment therefore creates a paradox; it conditions statutory protection upon State certification while simultaneously exposing the community structures through which transgender individuals could obtain refuge to possible criminal liability. Such a provision could essentially operate to frustrate such systems and fundamentally alter how they operate by attacking their governance structure while, on the other hand, subjecting individuals to assimilation in an inherently violent structure.
The issue therefore extends beyond the severity of punishment. It concerns the conditions under which criminal law is permitted to intervene in the lives of a vulnerable community. Principles of criminalisation require the exercise of penal power to be justified by a sufficiently defined harm and constrained by the principles of necessity and proportionality, along with procedural safeguards. Where the Law is framed broadly yet is inadequate in terms of safeguards, the law risks moving from prevention of genuine harm to the regulation of legitimate social conduct.
Therefore, in conclusion, the Amendment illustrates a broader problem of over-criminalisation as the State expands boundaries of criminal liability without equally strengthening the procedural limits governing its enforcement. A criminal law designed to protect a marginalised community cannot be assessed solely by the benevolent purpose it declares; it must also be examined and critiqued for the coercive power it places in the hands of the State.
Sanjay M, is a 3rd year law student BBA. LL.B. (Hons.) at RV university. Their main interests pertain to constitutional law, constitutional morality and criminal justice reforms.