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Inviolable aspect of personhood may turn into ‘state-mediated entitlement’: HC on transgender bill
The 2026 Transgender Persons Protection of Rights Amendment Bill risks turning “an inviolable aspect of personhood” into “state-mediated entitlement” for transgender persons, Bar and Bench quoted the Rajasthan High Court as having observed on Monday.
The bill was cleared by Parliament on March 25 after a motion to refer the proposed legislation to a select parliamentary committee was rejected. It received the presidential assent on Monday.
Introduced in the Lok Sabha on March 13, the legislation will amend the 2019 Transgender Persons Protection of Rights Act by redefining who qualifies as a transgender person.
It removes transgender persons’ right to a self-perceived gender identity and limits the scope of the law to those with certain biological or physiological characteristics, intersex variations, or specific socio-cultural identities such as kinner, hijra, aravani and jogta.
In the High Court on Monday, a bench of Justices Arun Monga and Yogendra Kumar Purohit noted that the right to self-perceived gender identity guaranteed under the 2019 Act has been taken away by the amendment, Live Law reported.
The amendment “marks a departure from that said constitutional baseline”, the legal news portal quoted Monga as saying. “It is now proposed that legal recognition of gender identity shall be conditioned upon certification, scrutiny or other forms of administrative endorsement,” he added.
The judge observed: “What was recognised by the Supreme Court as an inviolable aspect of personhood now risks being reduced to a contingent, state-mediated entitlement.”
The High Court was hearing a petition filed by a transgender person against a 2023 notification issued by the Rajasthan government declaring transgender persons as Other Backward Class without providing them any separate reservations, Bar and Bench reported.
The petition noted the lack of reservations for transgender persons in educational institutions and government jobs.
The High Court directed the state government to form a committee to identify the extent of marginalisation suffered by transgender persons and to recommend measures, Live Law reported.
The state government was also asked to provide an additional 3% weightage in marks to transgender persons in matters of selection and appointment to state government posts, as well as in admissions to educational institutions.
The bench said that their verdict was based on the foundational premise articulated by the Supreme Court in the 2014 National Legal Services Authority versus Union of India matter that the right to self-identity of gender was an intrinsic aspect of dignity, autonomy and personal liberty under Article 14, Article 15, Article 16 and Article 21 of the Constitution.
While Article 14 guarantees equality before the law, Article 15 prohibits discrimination against citizens on grounds of religion, race, caste, sex or the place of birth. Article 16 pertains to equality of opportunity in public employment and Article 21 guarantees the right to protection of life and personal liberty.
“Bottomline being, selfhood is not a matter of concession, it is a matter of right,” Bar and Bench quoted Monga as saying in the judgement.
The new amendment cleared by Parliament takes away this right, the High Court observed.
The bench added that the state has to ensure that the policy, evolved after the court’s directions, preserves the principle of self-identification to the fullest extent possible, while being within the contours of the amended law.
Any policy framework by the state should strive to preserve constitutional guarantees by extending reservations and should have a harmonising approach, the bench said.
“Any framework, be it legislative or executive, the rule of law demands that such measures must withstand scrutiny not merely of legality, but of constitutional conscience,” Live Law quoted the bench as saying. “…The true measure lies in the tangible dismantling of systemic marginalisation that transgender persons continue to endure.”
The new legislation passed on March 25 will make medical evaluation and certification mandatory for legal gender recognition. It underlines that the authority to permit such transitions is vested in medical professionals operating under a medical board.
The bill also introduces graded punishments based on the severity of offences, increasing the maximum penalty to up to 14 years from what was two years under the 2019 law.
It further specifies that those who have been “compelled” to assume, adopt or outwardly present a transgender identity under “undue influence” will not be covered under the law.
It emphasises that the law is intended to protect a defined class of persons facing “extreme and oppressive” discrimination and not all “persons with various gender identities, self-perceived sex/gender identities or gender fluidities”.
During the discussion in the Rajya Sabha, Opposition members raised concerns that the bill undermines the right to self-identification recognised by the Supreme Court in the 2014 NALSA case.
The judgement had formally created the “third gender” category for transgender persons that recognised them as a socially and economically backward class.
It had issued directions to the government to ensure that the transgender community gets job quotas, admission in educational institutions, health benefits, separate public toilets and a host of other safeguards against discrimination.
Also read: The curious logic of the Transgender Persons Amendment Bill
Source: Scroll
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