The March Bill On Transgenders, Marches Backwards

The Transgender Persons (Protection of Rights) Amendment Bill, 2026, introduced in the Lok Sabha on March 13, 2026, raises issues well beyond the rights of transgenders. It involves, to begin with, crucial questions relating to the supremacy of the constitution, the majesty of the Supreme Court as the final interpreter of the constitutional provisions, in general as also vis-a`-vis the rights of citizens. The Bill does not just seek to dilute the rights of transgenders and the LGBTQ+ community hitherto guaranteed and protected both by the Courts and legislation, but seeks to be that one rogue wave that will wash away the entire edifice of constitutional jurisprudence created over a decade in the arena of transgender rights, as if it were all but a castle of sand. What is even more significant is the manner in which hundreds of pages articulating progressive thought in judicial decisions have been reversed by changing the very definition of 'transgender persons'.

Self-perceived identity- Fundamental Right or Hollow Promise?

While the focal point of transgender rights is self-perceived gender identity and the right to self-determination, approved with authority by the Supreme Court in the NALSA judgement- a binding precedent which had ushered in the passing of the Transgenders (Protection of Rights) Act, 2019 which defined transgender persons expansively, the Bill changes the face of such rights by removing this very factor of self-determination. The Act defines 'transgender persons' as a person whose gender does not match with the gender assigned at birth, and specifies certain categories of persons were included, limiting them not only to persons with variations at birth in primary sexual characteristics, external genitalia, chromosomes, or hormones from the normative standard of male or female body, but also persons with sociocultural identity such as kinner, hijra, aravani, jogta. The March Bill of 2026 only lists the categories of persons to be included, removing the definition as stated in the Act as also categories such as trans- man or trans-woman, irrespective of whether such a person had undergone sex reassignment surgery, hormone therapy, laser therapy or such other therapy and also gender queer persons, and more importantly and rather shockingly, the Proviso to the definition of 'transgender persons' in the Bill states that it will not include nor shall ever have included persons with different sexual orientations and self-perceived sexual identities. With this, one needs to read no further in the Bill to understand that not only has the Act of 2019 but the very foundational block of all the judgement starting from NALSA, followed up in Navtej Singh Johar, as well as recently in Jane Kaushik, have been clearly set at naught. While the Supreme Court had in Jane Kaushik, adopted a hortatory approach, making plain its dissatisfaction and ire at the State's nonchalance in implementing the provisions of the 2019 Act pro-actively to ensure the translation of the letter and spirit of the legislation into reality in the lives of transgenders, the Bill now presented, is contumacious conduct that runs diametrically opposite to the ratio and obiter of Jane Kaushik, while also being an affront to a section of its citizens who are second to none but continuously being at the receiving end of treatment as secondary citizens, not only discriminated against historically but also in the present, making them a 'suspect class' deserving more conscious protection.

In other words, the Bill does not seek to amend the provisions of the Act but to amend its very object, purpose and intention of the legislature behind the 2019 Act and thus leave it as an eviscerated price of legislation, whose existence will matter little to anyone for whose benefit it was enacted in the first place. The next significant change sought to be brought in by the Bill is the vesting power in the medical board on whose recommendation alone, the District Magistrate will issue a certificate of identity to the applicant. This provision which is an offshoot of the changed definition which does away with self-perceived identity and determination, is rubbing salt on injury by meaning a direct attack on the privacy and dignity of the individual, all of which have long been elevated as fundamental rights. Here again, the Bill is in complete oblivion of the dense literature on the struggles and problems of transgenders, and the LGBTQ+ community, whose identities have a wide range of varieties. Again, gender identity is a complex thing, not necessarily to be decided clinically on the basis of primary sexual characteristics or external genitalia, and the Court has made it clear as daylight when it held that gender identity and biological attributes are two distinct concepts, which may not always converge. This also explains why gender queer persons, who depend heavily on self-determination, and who have now been excluded from the definition of transgender persons, in the Bill, will face tremendous difficulty in passing the stages of administrative approval for certification of their identity.

Apart from discussing the fatal blows dealt by the Bill to the continuance of a dignified life for transgenders and the LGBTQ+, the Bill also makes one ponder on the why and the how of its coming about. Why did a Bill of such sweeping retrograde change come in at a time when it took years of struggle to reach where we are, and still not anywhere close to the destination? How did the Bill in its present form come to be finalised without any consultation with stakeholders, more so in the glare of pronouncements of the Supreme Court, bringing the right of self-perceived identity and determination under the gamut of rights guaranteed under Articles, 14, 15, 16, 19 and 21 of the Constitution. This makes the Bill fly in the face of the “nothing about us, without us” principle, incorporated in disability policymaking, and which applies with equal force to the transgender community.

In matters such as these, when the provisions are in flagrant violation of settled position of law, the presumption of constitutionality of the statute will be at its lowest, and the Courts will have to subject the amendment to the highest judicial scrutiny to protect the fundamental rights of its citizens, as done in Anuj Garg where the Supreme Court stated that in cases involving violations of fundamental rights , or suspect classifications, what needs to be demonstrated is 'compelling state interest', and not just 'rational nexus'. Neither will the principle of 'proportionality' by adopting the 'least restrictive choice' save such amendments which undo the rights recognised by the Court as being inbuilt in fundamental rights. Once again, the people will look to the Constitution and the Court, as the last resort, to reinforce, and protect their inherent rights of dignity, equality and life itself.

The author is a practicing Advocate at Supreme Court of India & Madras High Court. Views are personal.