Identity on Approval: The State’s Gatekeeping of Gender Expression

“To ask a person to prove who they are is to misunderstand the very nature of Gender Identity.”

The swift passage of the “The Transgender Persons (Protection of Rights) Amendment

Bill, 2026” ^[1] in both Houses of Parliament coupled with the near certainty of presidential assent, adds on to the oscillation of legal regime around LGBTQIA+ rights. The bill along with various other changes moves to amend the very definition of being a transgender Person, which has faced significant pushback from the LGBTQIA+ community. With the directions for setting up a medical examination board and the District Magistrate assuming the role of a regulator, the bill seeks to drag gender identities in the whirlpool of sclerotic Indian bureaucracy. The changes sought are not only exclusionary but also reveal a concerning lack of understanding on the part of the government in framing comprehensive laws in this area.

Present Changes and Potential Ramifications

The statement of objects and reasons of the bill is reflective of the cynical relationship the Indian state shares with the marginalised. Constant references to “only those” transgender individual who “are in actually need of such protection”,^[2] shows how the legislators have a misplaced understanding of Transgender people, their gender identity and the difficulties they face. A law which previously worked as an umbrella to protect various gender minorities is now being shrivelled up to guard only socio-cultural identities. This comes in when India already lacks legal regime specifically protecting LGBTQIA+ community, further pushing them to the periphery.

The amendment to section 2(k) of the Transgender Persons (Protection of Rights) act, 2019^[3] effectively removes transwomen, transmen, genderfluid/genderqueer and non-binary people from the definition’s ambit. Until now the ministry of social justice and welfare has not stated as to what metric they have applied while deciding upon this new definition. Paradoxically, the law now recognises individuals compelled to assume a transgender identity, while excluding those who voluntarily identify as transgender.^[4]

Adding on to this is the mandate of seeking a certificate from the District Magistrate based on the recommendation of the medical board. Which stands in clear violation of the Puttaswamy^[5] as well as the NALSA^[6] judgement of the Supreme Court.

Due to the fact that self-identification is wiped out from the face of the bill, the proposed changes significantly impact how individuals interact with the state. Changes in all legal documentation flow from the certificate of identity, which has now become an administrative bottleneck in light of these changes.  Many critics of the bill are also concerned about the retrospective revocation of these certificates, as the new definition categorically states and the object and reasons hint towards the fact that persons with self-perceived gender identity shall be deemed never to have been included.^[7]

When law collapses into overregulation, it ceases to protect rights and begins to manage identities. M. Dru Levasseur, a United States based transgender attorney, precisely points out the relationship of transgender people share with the law- “Justice for transgender people is linked to the validation of self-identity— you are who you know yourself to be.” ^[8]  Through this Bill, it becomes evident that the drafters and lawmakers either lack a nuanced understanding of how the law must evolve in this domain or display a troubling disregard for the ramifications their actions are likely to entail. Both of which are deleterious paths to tread upon.

The deficiencies outlined above necessitate a comparative turn, particularly to understand how other legal systems have approached transgender self-identity with greater coherence and sensitivity.

Compartive Analysis

Law, by its very nature, operates through regulatory and definitional boundaries, whereas gender identity is inherently fluid and often resists rigid categorisation. The attempt to harmonise these two, presents a complex normative and legal challenge worldwide. Principle 3 of the Yogyakarta Principles serves as an anchor in navigating this tension. Which states “each person’s self-defined gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity, and freedom”^[9]. “Its emphasis on self-determination is reflective of the spirit that countries can adopt to reshape their legal understanding of gender identity recognition.  The gold standards in gender identity laws are those which place reliance on self-determination and not get caught up in bureaucratic approvals and medical interventions.

Following this lead, Argentina’s Ley de Identidad de Género^[10] marked a fundamental shift in gender recognition law, setting a global precedent that has since been adopted by several jurisdictions.^[11] The process adopted, requires neither surgical or hormonal intervention nor approval from medical, psychiatric, or legal authorities for legal gender recognition. The process is purely administrative: individuals above 18 years may apply by submitting their chosen name and updated photograph to the civil registry, ensuring consistent amendment across official records. The framework further enhances accessibility by eliminating costs, minimising procedural complexity, and ensuring swift processing.

Countries in the European Union such as Spain and Germany have also increasingly adopted legal frameworks revolving around recognition of self-determined gender identity, simplified administrative procedures for legal gender change, anti-discrimination protections, and expanded access to gender-affirming healthcare. Spain's Ley Trans,^[12] allows individuals above the age of 16 to legally change their gender without subjecting them to medical or psychological proofs. A simple notification to the civil registry is the only requirement to be met. The law further creates an anti-discrimination and welfare regime for individuals with diverse gender Identity. Germany on the other hand, has leaped from its previously restrictive laws to new frameworks based on self-determination and privacy protection.^[13] These European systems unlike the Indian one, assume bad faith is rare, and regulate consequences, not identity.

Meanwhile leading academicians and thinkers have argued, that the legal recording of gender should become a thing of the past, especially in situations where such information is neither relevant nor necessary.^[14] Christopher Hutton questions this marriage of gender with law and argues that “Legal sex has no explicit foundation in statute or case law. The registration regimes that arose in the nineteenth century for births, marriages and deaths, the introduction of the pass port and other forms of state-sponsored identity, erected a scaffold for the creation of legal sex, without explicitly setting out its biomedical, socio-political and legal basis.”^[15] There is an evolving discussion to completely do away with, if not downright abolish, gender as a marker of official identity.^[16] Reasons for such elimination include that gender is not something that should be monitored controlled by any external authority, such registration more often than not fails in capturing the “truth” of lived daily experiences.

Conclusion

In stark contrast, the "Transgender Persons (Protection of Rights) Amendment Bill, 2026" in India represents a troubling regression. Despite all of this, a sense of hope is still left from the Supreme Court of India which may potentially strike down such amendment as being violative of the golden triangle of rights under the constitution. The Court has, time and again, through the idea of constitutional morality upheld the values of dignity, autonomy, and equality; values that lie at the heart of our constitution. Any law that unduly oust gender identity or subjects it to invasive scrutiny risks falling short of such values.

At the same time, the present governance and policy framework reflects a deeper structural issue of government’s continued inability to craft a coherent, rights-based framework for transgender persons and individuals with diverse gender identities. The absence of a truly enabling law not only creates uncertainty but also undermines the lived realities of those it seeks to regulate.

Going forward, there is a dire need for legislative reforms that draw inspiration from progressive global models such as Argentina, Spain, and Germany as well as reflect the spirit of Yogyakarta principles, which is self-determined gender identity. A comprehensive and inclusive legal framework, rooted in constitutional morality, is essential to ensure meaningful recognition and welfare for transgender persons and all individuals across the gender spectrum.

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This blog has been authored by Pradhyumn Singh Khangarot, student at National Law University, Odisha (3rd Runner Up of 1st RGNUL National Socio-Legal Blog Writing Competition)

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REFERENCES

[1] Transgender Persons (Protection of Rights) Amendment Bill 2026

[2] Ibid

[3] The Transgender Persons (Protection of Rights) Act 2019, s 2(k)

[4] Ibid

[5] Justice KS Puttaswamy v Union of India (2017) 10 SCC 1

[6] NALSA v Union of India (2014) 5 SCC 438

[7] Transgender Persons (Protection of Rights) Amendment Bill 2026, cl 2(iv).

[8] M Dru Levasseur, ‘Gender Identity Defines Sex: Updating the Law to Reflect Modern Medical Science Is Key to Transgender Rights’ (2015) 39 Vermont Law Review <https://lawreview.vermontlaw.edu/wp-content/uploads/2015/05/39-4-06_Levasseur.pdf> 30 March 2026

[9] Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity 2007, art 3

[10] Gender Identity Law 2012

[11] Directorate-General for Justice and Consumers, Legal gender recognition in the EU: the journeys of trans people towards full equality (2020)

[12] Ley 4/2023 de 28 de febrero para la igualdad real y efectiva de las personas trans y para la garantía de los derechos de las personas LGTBI 2003

[13] Act on Self-Determination With Regard to Gender Markers 2024

[14] Anna James Wipfler, 'Identity Crisis: The Limitations of Expanding Government Recognition of Gender Identity and the Possibility of Genderless Identity Documents' (2016) 39 Harvard Journal of Law and Gender <https://ssrn.com/abstract=2763740> accessed 30 March 2026

[15] Christopher Hutton, 'Legal sex, self-classification and gender self-determination' (2017) 11(1) Law and Humanities <https://transreads.org/wp-content/uploads/2023/01/2023-01-27_63d45ec257ab2_17521483.2017.1320037.pdf> accessed 30 March 2026

[16] Susan Stryker, ‘Undoing Sex Classification Can Provide Justice’ New York Times (19 October 2014) <https://www.nytimes.com/roomfordebate/2014/10/19/is-checking-the-sex-box-necessary/undoing-sex-classification-can-provide-justice> accessed 30 March 2026