Over the last month and a half, the Transgender Persons (Protection of Rights) Amendment Act, 2026 has caused justified furor across India. The transgender communities have been scrambling to mount a protest against the Act, with several people approaching the High Courts and the Supreme Court of India to find redress against the draconian law.
These interventions carry within themselves several vital discourses regarding the Fundamental Rights of transgender and gender-diverse persons. This article explores a central pillar in this discourse – the right to self-identification of gender identity.
Defining self-identification
Before tackling this subject, one must wonder – what is self-identification? What does it mean to affirm your gender identity and move through the world accordingly? Gender is an intrinsic part of your personality. It can determine how you think of yourself, how you behave and how you act towards the rest of the society. Therefore, the act of adopting and affirming this identity by your own self, without coercion, external influence, or the requirement of legal and medical verification, is what self-identification is all about. All of us self-identify our gender identity at some point in our lives, and that determines our relationship with gender throughout our lives.
Research around the world has shown that the ability to self-identify has empowered transgender people, sometimes even going on to reduce depression and suicide rates in the transgender communities. When individuals are granted the agency to define their own lives, the psychological and social effects can be profound.
The 2019 Act: A flawed foundation
The erstwhile Transgender Persons (Protection of Rights) Act, 2019 did provide the right to self-identify under Section 4(2) of the Act, but it was heavily restricted to the administrative requirements under Section 4(1). Anyone could apply for getting a ‘transgender’ (Section 6) or a ‘male / female’ (Section 7) identity certificate and card, but their applications had to be verified and approved by the District Magistrate concerned. While the Section 6 certificate / card required only an affidavit attesting your gender identity, your Aadhaar card, passport-size photograph and signature for verification, the Section 7 certificate / card required (in addition to all these documents) a certificate of medical intervention like gender dysphoria diagnosis, hormone therapy, laser therapy, gender affirming surgery, and so on.
The process for availing of these transgender identity documents was not without obstacles. The District Magistrates did not have a universal standard operating procedure for processing the applications and often took more than the 30-day (Section 6) and 15-day (Section 7) period assigned to them for processing the applications. Sometimes, they asked for external verifications or personal and medical verifications too, which was illegal under the 2019 Act. The fact that the identity documents were provided only on the satisfaction of the District Magistrate took away a lot from the element of self-identification. Therefore, the dream of self-identification that was mandated by the Supreme Court’s landmark verdict in the National Legal Services Authority Vs. Union of India (2014) case was never quite realized in law.
The 2026 Act: Return of the medical gaze
Instead of addressing the shortcomings of the 2019 Act, the amended Act complicates the matter further by introducing external authorities, that is, medical boards and medical experts in the recognition process. The District Magistrates can now refer individual applications for transgender identity certificates / cards to these bodies for verification. The defenders of the amendments in the Lok Sabha and Rajya Sabha contend that since the identity documents are linked to availing welfare measures, strict measures have to be devised to ensure that only ‘real’ transgender persons get the benefits, likening it to the verification of the Scheduled Castes, Scheduled Tribes, and people living below the poverty line.
At the core of this idea is the law’s need to produce and work around categories, so it can recognize the people it has to govern. However, this need to recognize should not come at the cost of humiliating transgender persons and subjecting them to a medical and pathologizing gaze on top of the overly-bureaucratized channels that they already have to work through. When cisgender persons are not required to prove their gender to avail the benefits and schemes that the government offers them, why should this burden be so unfairly placed on transgender persons?
Problem of institutional distrust
There is another point that complicates the picture. Cisgender people are able to avail social welfare services rolled out for their gender (such as cisgender women availing of the benefit of women-centric social welfare schemes) simply by submitting an identity proof that lists them as belonging to their specific gender. However, transgender persons often lack identity documents that affirm their gender. In fact, the transgender identity certificate / card is often the first document they acquire before changing other identity documents to reflect their chosen name and gender. This is admittedly a tricky situation, but strict screening procedures are not the solution. Self-declaration of gender identity, say, through a legal affidavit, should be enough to guide this process. Similar models of self-identification have worked really well in countries like Argentina and Malta, which have progressive laws in this regard.
The unwillingness of the government to respect self-identification shows that it does not trust transgender persons. Some of this distrust, I have found out after talking to activists on the ground, comes from the transgender communities themselves. Many of them, especially those belonging to socio-cultural identities, believe that transgender persons with ‘non-traditional identities’ are often ‘fake’ and not ‘real’ transgender persons. It is possible that some of these voices informed the latest amendments, the consequences of which have to be borne by all transgender communities.
The question one must ask is what happens when a government does not trust its own citizens, service consumers, and right holders? Naturally, it will respond to them by wielding the law to surveil, to exclude, to punish, and finally to erase. But the exclusions perpetrated by the 2026 Act do not just disqualify certain persons from being recognized under the law. They take away their right to social welfare schemes, quash their dreams of education, stifle their claims against discrimination in healthcare and employment, and impact their overall wellbeing.
Grief of being misunderstood
Another dimension of thinking through the impact of the 2026 Act is to think through the lived realities of transgender people, who already face tremendous exclusion in their lives. They carry within themselves grief that arises from the people closest to them not understanding what it means to be a transgender person – whether they are parents, extended family members, friends, or co-workers. Now, this grief is being amplified by the lawmakers of the land, by the Parliament itself. Who will account for the impact of this grief and pain?
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It is important to remember that some of the Opposition MPs in the Parliament, such as Renuka Chowdhury and Jaya Bachchan, bravely challenged the ruling party during the Lok Sabha and Rajya Sabha debates on the 2026 Act. They raised extremely pertinent questions like, “Why make laws for communities you do not understand in the first place?” This points at a fundamental flaw of the 2026 Act – that it was brought about without any stakeholder consultations or incorporation of diverse voices from the transgender communities.
How the Parliament (especially the ruling party) responds to this grievance will decide not just the future of the 2026 Act, but also the safety and wellbeing of lakhs of transgender and gender-diverse persons across the country.
About the main photo: The author at a protest against the Transgender Persons (Protection of Rights) Amendment Bill, 2026 at Jantar Mantar, Delhi on March 29, 2026. Photo credit: Professor Harikarthik Ramesh
