The recently enacted Transgender Persons (Protection of Rights) Amendment Act, 2026, has kicked off a major controversy. The trans-right activists are vehemently criticising the gender identity determination procedure enumerated in the new amendment Act, arguing that it is a violation of the Supreme Court's landmark NALSA judgment.
The Supreme Court in NALSA v Union of India (2014) recognised transgender persons as a "third gender" and affirmed their constitutional rights to human dignity, autonomy, and freedom of expression under Articles 14, 15, 19, and 21 of the Constitution. The Supreme Court emphasised the aspect of self-identification of gender and held that self-defined sexual orientation and gender identity, which may include dress, speech or mannerism, are integral to the personality of an individual and a basic aspect of dignity and freedom.
Accordingly, the Transgender Persons (Protection of Rights) Act, 2019, was enacted. Section 4 (2) of the Act mentioned that a transgender person shall have the right to self-perceived gender identity. However, the new Act of 2026 is an abrupt departure from the self-identification principle. The objects and reasons of the amendment Bill of 2026 which was presented before Parliament clearly stated that the protection provided under the Act of 2019 could not be extended to self-perceived sex/gender identities or gender fluidities. The amendment Act of 2026 omitted section 4(2) and subjecting the determination of gender identity to medical practitioners and bureaucrats. It says that a person requiring transgender certification needs to approach recognised medical authorities for a medical determination of sex identity. It has caused serious discontentment in the trans community.
The common definition of sex and gender is that sex is a biological construct and gender is a socio-cultural interpretation of that biological reality. The prerequisite of medical certification in the Act of 2026 reinforces this view. It mentions various biological characteristics, such as congenital variation in primary sexual characteristics, external genitalia, chromosomal patterns, gonadal development, and other medical conditions, that determine the morphology of a trans-body, thereby establishing that non-conforming to binary sexual morphology is essential for the existence of a trans identity. This approach rests on the assumption that biological sex can be objectively determined independent of social and institutional processes. However, theorists like Judith Butler challenge this assumption, saying that, like gender, sex is also influenced by a socio-cultural framework.
Take the case of a hospital assigning a sex category – male or female to a newborn baby. Suppose a child is born with an XY chromosome pattern but ambiguous genitalia and hormone patterns that do not fit typical male development. So, nature has produced a body that does not fit neatly into the female/male binary. Yet, the hospital generally requires the child to be classified into only one of the two available categories. In this case, the existence of morphology is pre-discursive, but assigning the sex category by the hospital depends on our socio-cultural frameworks. Why are only two classifications made? What physical features determine whether the baby with ambiguous genitalia is male or female? The classification of such bodies often depends on medical and social conventions rather than biological observation alone. This makes the question at hand further difficult in the sense that if both sex and gender are shaped, at least in part, by social processes, how should gender identity be determined in law?
Butler answers this difficult question through her performative theory. Gender “is real only to the extent that it is performed”. The idea that gender is performative explains how gender identity is formed through a set of acts. It means that nobody is a gender before doing gendered acts. A specific act being repeated over and over again for a long period of time gives rise to "ritualised production" of gender identity. The fact that social expectations regarding clothing, behaviour, and appearances have changed dramatically across cultures and time periods shows how gender norms are continuously produced and reproduced through social practices. If performative action provides a logical explanation for gendered expression, who will certify it?.
Another difficulty with the Act of 2026 is about the construction of trans-identity itself. The very notion of 'gender-identity' is complex. For example, the term women refers to a common identity. Yet the group consists entirely of women, with so many different people that it's impossible to find a common denominator. So, inherently, gender identity is unstable. Since gender is performative, it only exists while it is being performed. One cannot club all such people with different performative indices into one category. The same is true for persons with non-binary gender identities. This Act clubs different people into a single category of transgender. For example, transgender and intersex are two different experiences, but both are clubbed together!
Finally, in the landmark K.S. Puttaswamy v Union of India judgment, a constitution bench of the Supreme Court, while declaring right to privacy as a fundamental right under Article 21, has held that privacy and bodily autonomy are crucial to gender identity. By lawfully subjecting a trans person to a mandatory medical examination for sex identification is violative of the right to privacy.
The author is an assistant professor of law, BITS Law School.
The opinions expressed in this article are those of the author and do not purport to reflect the opinions or views of THE WEEK.
