On 25th March 2026, the Indian Parliament enacted the Transgender Persons (Protection of Rights) Amendment Act, (2026), a move that reverses the previous progressive gains. The Bill was passed by the Lok Sabha on 24th March 2026 and on 25th March 2026, by the Rajya Sabha, drawing attention to whether adequate deliberation and consultation were undertaken for its adoption. This legislative shift occurs within the broader historical context of transgender rights in India, most notably the landmark decision of the Supreme Court in NALSA (The National Legal Service Authority v. Union of India, 2014), which recognized transgender persons as a “third gender” and affirmed the right to self-identification under Section 4(2). The NALSA judgment rejected bureaucratic and medical gatekeeping, setting a constitutional benchmark by explicitly asserting self-identification of a gender is central to personal autonomy, dignity, and choice.
It is against this constitutional backdrop that a 2026 Amendment has been subject to criticism for its urgency and speedy adoption. Although the government cited administrative clarity and prevention of misuse of self-identification as the reasons for the Amendment, no empirical data was presented to substantiate this claim. The available government data, indicates contrary: the total number of transgenders in India was reported to be 4.87 lakhs in the 2011 Census (which is widely believed to be an undercount), while the number of applications for identity certificate made on the National Portal since 2020 is approximately 34,000, representing a small percentage of the total population (State/UT wise Population of Others(TG) as per Census, 2011; Ministry of Social Justice and Empowerment, 2026). This indicates that the system is not being misused but is barely being accessed, thereby weakening the justification for the rushed Amendment and raising questions about its necessity and the lack of substantive debate and community consultation.
The political tension surrounding the Amendment was apparent during its passage in Parliament. The opposition parties Members of Parliament (MPs) demanded that the Bill be referred to the Select Committee for more thorough scrutiny, since matters of gender identity and constitutional right need to be consulted and discussed more extensively (Tanwar & Singh, 2026). However, the motion was not adopted and the Bill was passed by voice vote amidst protests and walk outs by the opposition MPs. Besides the parliamentary opposition, the civil societies have also organized strong resistance on the ground with protests reported in multiple cities as transgender community, LGBTQIA+ activists, allies took the streets to express their dissent and demand repeal of the Amendment (Bhutani & Laxman, 2026) (Shaikh, 2026). Transgender activists Lakshmi Narayan Tripathi and Zainab Patel have also filed petitions before the Supreme Court questioning the constitutionality of the Amendment.
In addition to the backlash, the Amendment raises deeper concerns as it departs from the constitutional ethos established in NALSA by introducing structural and administrative changes that redefine transgender identity. It further confines the definition of transgender person to specific socio-cultural identities like hijra, kinner, aravani, and jogta, while also including persons with intersex variation within the same legal category.
Scholars have consistently stressed that transgender identity and intersex variations are distinct legal and medical concepts, their conflation into a single framework leads to neglect of scientific, legal, and human right distinctions (Shah, 2019; Carpenter, 2016). The Amendment also proposed a certification system by medical authorities and mandates institutional reporting of gender affirming procedures, indicating the transition from self-identification to administrative verification. This development is indicative of a rising tension between transformative constitutionalism and administrative governance in India’s rights jurisprudence, raising the fundamental question of whether gender identity is a matter of individual autonomy safeguarded by the Constitution or one that can be subjected to administrative scrutiny and verification.
Ideally, laws concerning identity and dignity need direct involvement of the communities they affect. Yet, trans-activists and civil society organizations were excluded from this process. The administrative verification and its emphasis over self-identification of transgender identity are the widely debated point of this Amendment, as it is contrary to the spirit of NALSA. This multilayered certification procedure, which requires the recommendation of the Medical Board and the consent of the District Magistrate, changes the identity recognition into a procedure of bureaucratic exercise that undermines the constitutional promise of autonomy and equality.
Such administrative changes would impose obstacles on transgender people, particularly those belonging to marginalized socio-economic backgrounds. Access to identity documents, welfare benefits, healthcare, and employment opportunities is frequently dependent on legal recognition, and delays in certification can directly limit access to these rights (Dutta, 2017).
Transgender communities in India have historically endured stigma, discrimination, and social exclusion due to which many individuals hesitate to visit government offices or hospitals for fear of humiliation or rejection ( Lahoti & Agrawal, 2020). Such fear can get intensified in cases of identity verification, as individuals may hesitate to seek identity certificates or welfare schemes, to avoid being investigated and scrutinized. Even well intended institutional processes may at times deepen exclusion and contribute to stigma. The psychological impact of such laws is seldom discussed, yet it exists.
Dignity extends beyond legal recognition; it ensures that individuals feel safe and respected within the system.
The conflation of transgender and intersex identities in the legal framework leads to other constitutional and human rights issues. Intersex variations and transgender are distinguished by international scholarship and medical bodies (World Health Organization, 2015). Intersex is related to biological sex characteristics while transgender identity relates to gender identity and self-perception. If these two are subjected to a uniform regularity mechanism, it could result in unnecessary medical scrutiny for an individual who does not require it. This practice would lead to confusion among intersex and transgender individuals in accessing healthcare, identity documents, and welfare benefits and it may also compromise their bodily autonomy.
While the Amendment enhances administrative processes and sanction, it remains silent on the key civil rights including marriage, adoption, inheritance, divorce, and succession (Gulati & Anand, 2023; Chowdhury & Tripathy, 2016). This creates an imbalance in the legal framework, in which transgender individuals are subjected to regulation without attaining equality under family and citizenship rights. It has been contended by scholars that the recognition with the absence of family rights is a symbolic inclusion. Intersectional vulnerabilities, including caste, poverty, disability, and social exclusion, which remain key determinants of lived realities of the transgender community in India are insufficiently covered. Administrative reforms cannot guarantee any meaningful inclusion unless structural inequalities and socio-economic barriers are addressed.
The structural gaps are also visible in the availability and functioning of the shelter support schemes. The Union government sanctioned additional 6 new Garima Greh during 2025-26 bringing a total number of 20 operational Garima Greh homes in 16 States and Union Territories (Operational Status of Garima Grehs, 25th March 2026). However, this expansion does not translate into reliable access as news articles and NHRC reports suggest otherwise (Arif, 2026; Raju, 2025; Mishra, 2025). Over the years, the shelter has raised repeated concerns on the delays and difficulties in the release of funds, affecting the ability of the shelter homes to provide basic necessities to the transgender residents and sustain their operations. This creates a paradox, while the number of shelter homes has increased, it does not necessarily indicate that the existing shelters are functioning smoothly or that the funding problems have been resolved. The additional new shelters raise grave concerns: if the existing shelters continue to face difficulty with funding, how will the newly established shelter sustain and function effectively. This exposes the gap between the scheme on paper and implementation on ground.
A petition filed before the Supreme Court challenging the 2026 Amendment, is still to have its final hearing (Laxmi Narayan Tripathi v. Union of India and Others, 2026). The uncertainty created by the Amendment with the language suggestive of retrospective effect, putting transgender people into a dilemma. The Union Government in response has assured the Court that the identity certificate issued prior to the Amendment will remain operational. Irrespective of whether the Court strikes the problematic provisions or retains it, State Governments can within its welfare function safeguard the rights of transgender persons within their jurisdiction. While the Union Government is responsible for funding of SMILE (Support for Marginalized Individuals for Livelihood and Enterprise), it is the State which can perform closer monitoring, coordination, implementation, respond to immediate shelter needs, escalate delays and non-receipt of funds. Against this backdrop, the State Government can take following measure:
- Privacy and Dignity in Certification Process: The State Government can lay down safeguards to bring clarity to the Amendment, ensuring the privacy, dignity and informed consent throughout the process. State rules can provide that no physical examination of a transgender person should be conducted without consent, neither should they be compelled nor forced to do so and that it should not be treated as the only means for establishing transgender identity. Within the scope of the Amendment Act of 2026, the medical authorities should be permitted to rely on self-declaration, with psychological assessment undertaken only where considered necessary. The State Government should establish a time bound grievance mechanism to inquire into complaints ensuring confidentiality and where necessary take appropriate corrective action.
- Time-Bound Certification: Medical authority should process and submit the recommendation within the stipulated timeline laid down by the State Government. Failure to do so, the District Magistrate should dispose of the application and grant the certification.
- Prevent Unauthorized Disclosure of Transgender Status: Confidentiality should be maintained throughout the certification process. The information related to the transgender person shall not be disclosed and securely stored. Where not required by law, medical authorities, police officers, and government officials should be prohibited and held responsible for disclosing a person’s transgender status to third parties or the public.
- Procedural Guidelines for Alleged Coercion: Where a complaint has been made that an adult was coerced or threatened into identifying as transgender, the concerned person should be given an independent and sufficient opportunity to present their perspective before any conclusion is reached. The police authorities should not proceed solely on presumption, particularly when the complainants are family members. Where the person concerned is a child, appropriate safeguards which are consistent with the principles of best interest and child sensitive approach should be incorporated.
- Strengthen Support of Garima Greh: The State Government can complement and strengthen the implementation of the SMILE Scheme and utilization of funding provided by Union Government through regular monitoring, prompt escalation of delays and non-receipt of funds. The State may provide additional support through its own welfare schemes for shelter and other essential services, without altering or interfering with the Union Government’s Scheme.
- Sensitization of Police and Medical Authorities: The State Government should conduct mandatory sensitization programmes for medical and police authorities with the aim of preventing discriminatory practices, verbal abuse, harassment, threats, derogatory language or other forms of inappropriate conduct. Such training should not be limited to sensitization efforts but also extend to ongoing institutional training.
A certificate may establish a person’s legal identity but recognition is only the beginning and it cannot by itself promise shelter, prevent discrimination, guarantee dignity. Whether the Amendment survives constitutional scrutiny or not, it is the responsibility of the State Government to extend their welfare mechanism so that a transgender person can participate as equal members of society. So, the question is not who qualifies as a transgender person or who is recognized as one, but whether those recognized can truly live with dignity and equality.
