Transgender Persons (Protection of Rights) Amendment Act, 2026
Why in News?
Recently, the Parliament enacted the Transgender Persons (Protection of Rights) Amendment Act, 2026. The Act amends the Transgender Persons (Protection of Rights) Act, 2019.
| UPSC Relevance: GS-2 Social Justice: Welfare schemes for vulnerable sections of the population. Mains: Transgender Persons (Protection of Rights) Amendment Act, 2026: Key provisions & Challenges. |
Transgender Persons (Protection of Rights) Act 2019:
The Act provides for the rights of transgender persons and their welfare.
- Definition: A transgender person is one whose gender does not match the gender assigned at birth. It includes trans-men and trans-women, persons with intersex variations, genderqueers, and persons with socio-cultural identities (such as kinnar, hijra).
- Self-identification: Authorises a person to self-perceive their identity and receive a “Certificate of Identity.” A certificate is issued by the District Magistrate without needing medical examinations.
- Offences and penalties: The Act lists four offences committed against trans persons – bonded labour, denial of access to public places, forced removal from residence, and physical, sexual, verbal, emotional or economic abuse. The offences were punishable with six months to two years imprisonment and a fine.
- The National Council for Transgender Persons will advise the central government and monitor the impact of policies, legislation and projects on transgender people. It will also redress the grievances of transgender persons.
| Landmark Judgements & Evolution of Rights of Transgenders: • National Legal Services Authority v Union of India (2014): The SC recognised transgender people as a third gender and acknowledged their rights. The SC recognised the right to self-identification, framing it as a fundamental right. As per the judgment, “Self-determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed under Article 21 of the Constitution of India.” • Justice K. S. Puttaswamy v Union of India (2017): The SC ruled that privacy is a fundamental right. This decision had far-reaching implications for the LGBTQ+ community as it paved the way for greater recognition and protection of their rights to privacy and personal autonomy. • Navtej Singh Johar v Union of India (2018): The SC struck down the colonial-era Section 377 of the Indian Penal Code, which criminalised consensual same-sex relationships. The decriminalisation of consensual same-sex relationships ensures equality and dignity for homosexual individuals. • Deepika Singh v Central Administrative Tribunal (2022): The SC expanded the definition of family beyond marital ties to include non-traditional households. The legal understanding of “family” may include manifestations like queer families as well as single parents. • Supriyo v Union of India (2023): The SC upheld the validity of the Special Marriage Act, 1954, and held that the right to marry is not a fundamental right for queer persons. The courts recognised that queer persons have the right to a relationship, cohabitation, and choice of partner. |
Transgender Persons (Protection of Rights) Amendment Act, 2026:
- Definition Restriction: The 2026 Amendment Act removes the definition of a transgender person based on self-perceived identity. It deletes categories like “trans-man”, “trans-woman,” and “genderqueer” from the definition of “transgender person” in the 2019 Act. It primarily recognises transgender people as:
- Person with specific socio-cultural identities (like kinner, hijra, aravani, jogta, eunuch)
- Persons with a specified, medicalised list of congenital biological variations (primary sexual characteristics, external genitalia, chromosomal patterns, etc.)
- Any person or child who has been compelled to assume a transgender identity through mutilation, emasculation, castration, amputation, or surgical, chemical, or hormonal procedure.
- Medical Board Certification: It mandates that a certificate of transgender identity will only be issued by a District Magistrate after examining the recommendation of a designated medical board headed by a Chief Medical Officer.
- Gender change: It is mandatory to obtain a revised certificate of identity where a transgender person undergoes surgery to change gender. The concerned medical institution must furnish information regarding the gender change surgery to the District Magistrate.
- Offences and penalties: The Act adds new offences-
- Abduction and grievous hurt to force someone into a trans identity can lead to ten years in prison to life imprisonment.
- Compelling someone to present as trans and subjecting them to begging can lead to five to fourteen years in prison.
Criticism of the Amendment Act:
- Dilutes the right to self-identification (self-perceived gender identity) established by the NALSA judgment. The Act infringes upon personal autonomy, the right to privacy, and the right to dignity.
- Exclusion of Identities: The new definition excludes trans-masculine individuals and various non-binary identities, forcing many into specific traditional labels (e.g., hijra, kinner). The gender identity becomes tied mainly to biological or medical criteria.
- Tedious process of certification: The new medical board certification process can be very time-consuming and resource-intensive. The process of legal recognition of gender identity risks turning a constitutional right into a state-controlled entitlement.
- Retrospective Erasure: The 2026 Amendment includes a “retrospective clause” that threatens to invalidate identity certificates already issued to thousands of individuals under the previous 2019 Act.
The government argues that the definition under the 2019 Act is too vague and makes it difficult to identify those who are most marginalised. The narrower definition under the 2026 Act will help ensure welfare benefits – such as job reservations and healthcare support – reach those who need them.
UPSC PYQ 2023
Q. Explain the constitutional perspectives of Gender Justice with the help of relevant Constitutional Provisions and case laws.