The Transgender Persons (Protection of Rights) Amendment Act, 2026, which amends the Transgender Persons (Protection of Rights) Act, 2019, came into force on May 25, 2026. The Amendment Act makes a few major changes to the 2019 Act:
- It replaces the definition of ‘transgender person’ under the 2019 Act—which included ‘any person who did not identify with the gender assigned to them at birth’—with a narrow list of four socio-cultural groups (hijras, kinners, jogtas, and aravanis), persons with intersex variations at birth, and a person forced to assume a transgender identity. Consequently, it excludes transgender men and non-binary transgender persons from the ambit of the definition and the law.
- It changes the process for obtaining a certificate of identity. Under the 2019 Act, self-identification served as the basis for obtaining a certificate of identity. Now, the District Magistrate must examine recommendations from a newly constituted medical authority before granting legal recognition of identity. The Amendment Act also omits the right to self-perceived gender identity.
- It mandates the sharing of information by medical institutions with the District Magistrate in relation to gender affirming surgeries carried out by them on transgender persons. Under the 2019 Act, it was the discretion of the transgender applicant to share such information with the State if they wanted to change their gender marker to ‘male’ or ‘female’.
- It introduces a new set of offences with grave penalties to address instances where persons are allegedly ‘allured’ or ‘compelled’ to become transgender persons through processes such as surgical, chemical, or hormonal procedures, or ‘forced’ to present as transgender persons for the purpose of begging. These offences are informed by harmful stereotypes about the transgender community and use vague and open-ended language—thus risking misuse by natal families.
These changes depart significantly from the Supreme Court’s landmark 2014 NALSA judgement. The Court held that the right to self-perceived identity is a constitutionally protected fundamental right. Accordingly, it directed the central and state governments to grant legal recognition to a transgender person’s gender identity as male, female, or third gender. It also noted that medical intervention was not a pre-requisite for a person to be legally identified as a transgender person, a man, or a woman.
While the constitutionality of the Amendment Act has been challenged before various courts, state governments have considerable power to continue to protect the rights of transgender persons in their states. The 2019 Act empowers state governments to make rules to implement it, including the Amendment Act, in their state. In exercise of this power, Tamil Nadu has enacted the Tamil Nadu Transgender Persons (Protection of Rights) Rules, 2022. Further, state governments can also exercise their executive powers to issue orders, notifications, guidelines, and implementation protocols to operationalise the Act in their state. These instruments can be used to provide state transgender identity cards, state welfare schemes, lay down an accessible process for the application of a certificate and changes in gender markers, mandate inclusive and discrimination-free access to healthcare, and prescribe standards for the sharing of personal information of transgender persons.
However, this power to implement the Act is not unlimited. Any state government action to implement the 2019 Act and Amendment Act must be in harmony with the intent of these Acts and must not fundamentally alter the law laid down by Parliament.
What can state governments do?
States can use their rule-making powers or other forms of executive powers to advance dignity, equality, and other constitutionally protected rights.
1. Clarify the definition of the term ‘transgender’
While the Amendment Act restricts the definition of the term ‘transgender’ to four socio-cultural groups, these terms do not have clear, fixed, or stable meanings. Neither are these groups prevalent across the country. Through a government order, the state can clarify which socio-cultural groups prevalent in the state fall within the scope of the definition. For this purpose, the state must consult with diverse transgender groups to ensure a holistic and inclusive approach to identifying such socio-cultural groups. Further, the state government can issue its own ‘state transgender card’ and link all state benefits to it.
2. Limit the role of the medical authority
The Amendment Act makes it mandatory for the District Magistrate to account for the recommendations of a medical authority prior to issuing a certificate of identity as a transgender person. While this cannot be overridden by state action, the state government can restrict the role of the medical authority by prescribing that such authority will not carry out any physical examination of the applicant. Instead, self-declaration and a transgender-affirmative psychological assessment if required, will suffice. It must also put in place strict timelines for the medical authority to relay this information to the District Magistrate. Such a measure will reduce the scope of arbitrariness on the part of the medical authority. The designated medical authorities must also undergo training on transgender-affirmative healthcare.
3. Uphold the right to self-perceived gender identity
As established by the NALSA judgement, the right to self-perceived gender identity remains a fundamental right regardless of its omission from the Amendment Act. State governments have a duty to recognise and uphold it.
4. Safeguard sensitive information
Unlike the 2019 Act, medical institutions where transgender persons undergo gender-affirming procedures are now mandated to share such information with the District Magistrate. This raises legitimate concerns about informational privacy since sensitive health and gender-related data are being transferred without the person’s consent. It is thus critical for the state government to establish protocols for the manner in which this data will be processed—collected, transferred, stored, and deleted—in alignment with the Supreme Court’s 2018 judgement in Puttaswamy v. Union of India, which recognised the fundamental right to privacy. First, only data that is necessary for the purpose of verification of an applicant’s identity and change of gender marker to male or female must be collected and transferred. Second, the state government must issue directions for storage to ensure that the data is secure. Third, the data must be shared only with authorities who play a role in issuing the identity card. Finally, there must be a mandate that the issuing authority destroys the data once its purpose has been served. Ideally, the state government must prescribe a form with clear fields that the medical institution needs to fill when transferring health information, thus limiting the categories of data collected.
5. Provide legitimate gender-affirming healthcare
The Amendment Act has a chilling effect on the provision of legitimate gender-affirming healthcare. Anecdotal evidence reveals that healthcare professionals have started refusing gender-affirming care to transgender persons, fearing prosecution. This even though the 2019 Act recognises refusal and discontinuation of healthcare to transgender persons as a form of discrimination. The Mental Healthcare Act, 2017 also prohibits discrimination in access to care based on gender identity. It is critical for state governments to issue a direction to all clinical establishments and medical professionals and clarify that provision of legitimate gender-affirming care must not be discontinued. The direction should also bring to light their duty to do so under applicable laws, including medical professional and ethical regulations.
6. Issue guidelines preventing misuse of newly inserted offences
The newly inserted offences also raise concerns about misuse against transgender activists, civil society organisations, medical professionals, and transgender kinship units. Natal families of transgender persons may file criminal complaints against those extending support to transgender persons under the guise that they are forcing conversions. It is critical for the state government to issue guidelines to the police to ensure that they carry out a preliminary inquiry when a complaint is filed under the newly inserted sections of the Amendment Act. If such inquiry reveals that the individual is an adult and has voluntarily sought assistance or gender-affirming care, such a statement must be recorded, no FIR must be registered, and the matter closed.
If the Supreme Court upholds the Amendment Act, the absence of adequate implementation safeguards could undermine the guarantees of equality and non-discrimination under Articles 14 and 15, the freedom of expression under Article 19(1)(a), and the rights to dignity, autonomy, and privacy under Article 21. For transgender persons, these safeguards are critical for continued affirmation of their gender identity, control over their sensitive health data, and being able to access essential services, including gender-affirming healthcare. Without meaningful implementation safeguards, the rights guaranteed under the 2019 Act risk remaining illusory for a significant section of the community. Consequently, while litigation on the Amendment Act is underway, strategic state government action is critical to safeguard transgender rights.
Ultimately, the enforcement of the law depends as much on the letter of the law as the knowledge of those enforcing it. Therefore, in line with the mandate in NALSA, state governments should undertake holistic and periodic sensitisation efforts for government officers, public hospitals, and law enforcement officials about gender and sexuality and the rights of the community. Such systemic sensitisation efforts will play a critical role in ensuring the rights of the community are recognised and safeguarded.
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Know more
- Learn more about the legal recognition of gender identity across the world.
- Read more about the provisions of the Amendment Act and the concerns around it.
