This article is written by Soumya Chaturvedi, Learning Manager at Lawctopus Law School

Imagine a trans woman waiting outside a small committee room in a district hospital to be summoned. Her friends, her landlord, and even the neighbourhood shopkeeper who addresses her by name are all aware of her identity. But that doesn’t mean anything today.

Today, a panel of strangers, led by a government doctor, will decide if her identity is valid. She is not the only one in this waiting area. An intersex person sits next to her, equally unsure and dependent on an uncontrollable signature.

This is what “recognition” has come to mean in India somewhere between the 2019 promise of self-identification by the law and the amendment done to the Transgender Persons (Protection of Rights) Act, 2019 (the “Act”) via the Transgender Persons (Protection of Rights) Amendment Bill, 2026 (“2026 Amendment”). 

The old boon and the new bane

It wasn’t always this way. A long-awaited victory for the queer and transgender communities came in 2014 when the Supreme Court, in the case of National Legal Services Authority v. Union of India (“NALSA”), interpreted Articles 14, 19, and 21 of our Constitution to guarantee the freedom to choose one’s own gender identity.

The Court did not demand medical proof or surgical evidence- it ruled that a person’s self-identified gender identity was sufficient in itself to activate constitutional protection. The bench reasserted the global principles of dignity, autonomy and equal citizenship by stating that these could not be made contingent upon the approval of others.1

The Act was supposed to add legislative teeth to that judgement. Section 6 of the Act permitted a trans person to contact their District Magistrate with a simple self-declaration and be awarded a certificate of identity- no surgery, no clinical assessment, no board sitting in judgement over their sense of self.2

It was, admittedly, an imperfect statute in several other ways, but it remained true to NALSA in one respect: it trusted the individual’s own explanation of who they are.

The 2026 Amendment has unsettled this foundation built through years of struggle. The provision allowing self-perceived gender identity as sufficient for recognition has been done away with and in its place stands a medical board, headed by a Chief Medical Officer or Deputy CMO, whose recommendation the District Magistrate is now statutorily bound to consider before any certificate can be issued.3 What was previously a right exercised by declaration has, in effect, become a claim waiting for clinical and state endorsement. 

Image 1: The evolving route to legal recognition

State’s invasion and the quiet cruelties imposed by the Law

Buried deep in the 2026 Amendment is another encroachment, one that rarely makes news – and perhaps the most disturbing of all. Any medical institution that performs gender-affirming surgery is now required to disclose the patient’s details to the District Magistrate and the designated medical authority under the newly inserted Section 7(1A).4

What was a profoundly personal medical decision and treatment between patient and doctor is no longer private – it is part of the government record. For a community that has spent decades trying to keep hospitals and police stations from becoming sites of humiliation, there’s the State going directly into the one relationship that’s meant to be a haven.

And here’s the absurdity behind it all: there is no clinical test for gender identity. But a board of unelected people, doctors who have never had to prove their own gender to anyone, now judge another’s. And worse, nobody even knows how this will run.

Notifications on the board composition, appeal process and timelines have not been issued. The 30 day limit provided in the Transgender Persons (Protection of Rights) Rules, 20205 for processing of identity certificates is gone and has been replaced with an open-ended clinical evaluation. 

Somewhere in front of a board that scarcely exists yet, a person’s legal existence is queued up in a public health system already stretched thin and ill-equipped to take on one more layer of gatekeeping.

Image 2: Current and earlier routes to legal recognition

That uncertainty does not fall on the side of neutral. It hits those already holding family rejection, workplace discrimination and daily humiliation. Researchers are already warning of increasing mental stress and anxiety directly linked to the 2016 Amendment.6

Then there’s the provision marketed as protection. Section 18 of the 2016 Amendment criminalises “alluring”, “inducing” or “forcing” a person to present as transgender, with punishments of up to life imprisonment.7 Trafficking should be punished, but “allurement” is dangerously broad- it undermines the hijra gharana system, where a guru shelters a chela pushed out by their own family. The bond is a choice, not a coercion, but the law does not distinguish between the two. In light of this possibility, gurus and support communities may become cautious about accepting new members, therefore subtly removing the only source of support that an already ostracised community could count on. 

Who does the law include (or rather exclude)?

The exclusion begins with the definition itself. The Act specifically recognised trans men, trans women (irrespective of medical intervention), genderqueer persons, persons with intersex variations and people who described themselves as members of socio-cultural communities such as hijra, kinner, aravani and jogta. The 2026 Amendment replaces this wide framework with a more narrow list: certain socio-cultural identities, intersex or congenital differences in sex features, and those allegedly forced, by compulsion or mutilation, to adopt a transgender identity. It also excludes those with “different sexual orientations and self-perceived sexual identities”- terminology that is both ambiguous and logically muddled.8

This causes a particularly grave difficulty for trans persons who do not pursue surgery or hormone therapy, either by choice, due to medical reasons, or because such care is not financially available. Their identification is effectively pushed towards a biological or medical test. Being transgender, in the eyes of the law, is less a matter of personhood, and more a matter of fitting into a category acceptable by the State.

Furthermore, there is a lack of consistency in the definition across different cultures and regions. Trans-rights and anti-caste activist Grace Banu says that by focusing on identities based on the dominant caste Hindu narratives, terminology like thirunangai and thirunambi used in Tamil Nadu become excluded.9 “In Manipur, Rituparna Neog asked, where are the nupi maanbi and nupa maanba? If these identities are left out, does it mean that the transgender people of the Northeast are invisible to the law?”10

These are not simply semantic omissions. They decide who gets a certificate, legal rights, welfare, health care and protection from discrimination. Travelling to a medical board, disclosing sensitive information, and proving that one fits a prescribed category may be extremely burdensome for someone in a rural area with limited resources, making legal recognition practically unreachable.

The road back from recognition and the hope ahead

NALSA placed gender identity within the universal principles of dignity, autonomy and equal citizenship recognised by the fundamental rights provided by the Constitution of India. On the other hand, the 2026 Amendment pushes people to prove an identity that the Constitution has already acknowledged as their own.

Now the Supreme Court will decide in Laxmi Narayan Tripathi v. Union of India11 if self-identification can be replaced by medical and bureaucratic approval. The case is more than the language of a statutory definition. It poses a simpler but more fundamental question: can a person be legally recognised as who they are without first meeting the State’s medical and bureaucratic requirements? The answer, hopefully, will be to re-affirm that which should never have been in doubt: that transgender persons deserve recognition- not permission- from the State.

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References

  1. National Legal Services Authority v. Union of India, (2014) 5 S.C.C. 438, 482–84 (India). ↩︎
  2. The Transgender Persons (Protection of Rights) Act, No. 40 of 2019, Sec. 6. ↩︎
  3. The Transgender Persons (Protection of Rights) Amendment Bill, 2026, Bill No. 79 of 2026, cls. 2–3,
    https://prsindia.org/files/bills_acts/bills_parliament/2026/Transgender_Bill_2026_Text.pdf. ↩︎
  4. The Transgender Persons (Protection of Rights) Amendment Bill, 2026, Bill No. 79 of 2026, cl. 5 (India) (inserting § 7(1A) into the Transgender Persons (Protection of Rights) Act, 2019), https://prsindia.org/files/bills_acts/bills_parliament/2026/Transgender_Bill_2026_Text.pdf. ↩︎
  5. Rule 5(2) of the Transgender Persons (Protection of Rights) Rules, 2020 requires the District Magistrate to issue a certificate of identity within thirty days of receiving a duly completed application and affidavit. Transgender Persons (Protection of Rights) Rules, 2020, r. 5(2) (India),  https://thc.nic.in/Central%20Governmental%20Rules/Transgender%20Persons%20(Protection%20of%20Rights)%20Rules,%202020.pdf. ↩︎
  6. Collective Statement by Healthcare Professionals on the Transgender Persons (Protection of Rights) Amendment Bill, 2026, at 1–2 (Mar. 22, 2026), https://orinam.net/wp-content/uploads/2026/03/Collective-Statement-By-Healthcare-Professionals-on-the-Amendment-Bill-2026_as-on-20260322-1.pdf. ↩︎
  7. The Transgender Persons (Protection of Rights) Amendment Bill, 2026, Bill No. 79 of 2026, cl. 7, substituting § 18 of the Transgender Persons (Protection of Rights) Act, 2019, https://prsindia.org/files/bills_acts/bills_parliament/2026/Transgender_Bill_2026_Text.pdf. ↩︎
  8. The Transgender Persons (Protection of Rights) Amendment Bill, 2026, Bill No. 79 of 2026, cl. 2 (iv). ↩︎
  9. The Trans Amendment Bill: Everything You Need to Know, India Dev. Rev. (May 5, 2026), https://idronline.org/article/rights/the-trans-amendment-bill-everything-you-need-to-know/. ↩︎
  10. Vidhi Centre for Legal Policy, Comments on the Transgender Persons (Protection of Rights) Amendment Bill, 2026, at 1–5 (2026). ↩︎
  11. Laxmi Narayan Tripathi v. Union of India, Supreme Court of India, Writ Petition (Civil) No. _ of 2026, Supreme Court Observer, Challenge to the Transgender Persons Amendment Act, 2026 (Aug. 3, 2026),
    https://www.scobserver.in/cases/challenge-to-the-transgender-persons-amendment-act-2026/. ↩︎

About the Author

Ms. Soumya Chaturvedi is a Learning Manager at Lawctopus Law School and an ex-Associate at IndusLaw, where she worked in the Capital Markets team. A 2021 graduate of NLU Odisha, she has previously interned with leading law firms including LKS, DSK Legal, and L&L Partners.