The Transgender Persons (Protection of Rights) Amendment Bill, 2026 recently passed by Parliament makes several sharp changes to the 2019 Act. It narrows the definition of a transgender person to only specific socio-cultural identities such as kinner, hijra, aravani, jogta or eunuch, or biologically defined intersex variations, or persons compelled into such an identity through a procedure. It explicitly excludes persons with different sexual orientations and non-heteronormative, gender-fluid identities.
The Bill removes the right to ‘self-perceived gender identity’ from Section 4(2), replaces the simple process of certification by the district magistrate with a medical board headed by a chief medical officer, mandates hospitals to report every transgender gender-change surgery to the magistrate, and substitutes Section 18 with far harsher penalties up to rigorous imprisonment for life for forcing anyone into transgender ‘presentation’.
While the government claims these amendments fix the vagueness and implementation failures of the 2019 Act, they actually perpetuate and worsen the structural problems that have plagued Indian policy for years.
The Bill still lumps ‘persons with intersex variations’ (now defined biologically) directly inside the definition of transgender persons. This is one of the biggest flaws that experts have criticised since the 2019 Act. The Act’s definition of ‘transgender persons’ includes persons with intersex variations, erasing specific needs of intersex persons like protection against non-consensual surgeries.
Intersex is a natural biological spectrum—chromosomal, hormonal, anatomical variations present at birth—affecting 1-2 percent of births globally. Transgender identity is a psychological and social construct. Retaining this conflation under one label violates Article 21 rights to bodily integrity and privacy. It leaves intersex infants without a specific ban on ‘normalising’ surgeries and ignores repeated calls for separate intersex legislation.
The Bill’s definition also directly contradicts established international standards. The UN and WHO clearly define intersex as innate variations in sex characteristics that do not fit typical male or female binaries, requiring distinct legal recognition and explicit protections against non-consensual medical interventions. By forcing intersex persons into a transgender category, the Bill erodes the human rights framework India has committed to uphold.
The amendment leaves outdated titles of the National Council for Transgender Persons and state welfare boards unchanged. It ignores the longstanding proposal to rebrand them as a National GIESC Welfare Council and state GIESC welfare boards (where GIESC stands for gender identity/expression and sex characteristics). This keeps the entire policy architecture trapped under the problematic ‘transgender’ umbrella instead of creating a scientifically-accurate, inclusive framework.
This heteronormative bill erases the reality that transgender persons can and do have diverse sexual orientations like trans-gay, trans-lesbian, trans-bisexual or queer. It reduces transgender existence to a narrow, culturally-scripted role that fits neatly into a heterosexual societal framework, ignoring the full spectrum of human diversity and reinforcing the very stigma the original Act was meant to combat.
At the same time, the Bill does nothing to regulate or dismantle the colonial hijra jamaat gharana system. Under this, hijra nayaks control their wards’ earnings from begging and prostitution, trapping abandoned, gender-non-conforming children in bonded labour. The new offences target individuals, but leave the hierarchical community structures untouched. No reform, rehabilitation or special protection for minors trapped in these systems is provided.
By protecting these colonial-era gender identities without any evidence-based research to safeguard the genuine ancient Indic narratives, the government is actively erasing the early spiritual roots that once accommodated diverse sexual orientations, gender identities, expressions and sex characteristics with dignity. This is a deeply homophobic and queer-phobic amendment that empowers the hijra jamaat’s community structure at large.
The Bill contains no requirement for counselling by geneticists before certification or surgery. It offers no mandate for India-specific studies on gender-affirming surgery or hormone replacement therapy that were virtually unknown in India before the 1990s and are not medically essential. The well-known long-term Swedish study showing 19 times higher suicide rates post-surgery is ignored. Mandatory reporting of unethical and unregulated ‘gender-affirming surgeries’ raises serious privacy concerns.
The Bill contains no intersectional lens for caste, disability, poverty or religion. Transgender persons from SC, ST or disabled backgrounds will continue to face compounded discrimination with zero targeted remedies. It also fails to protect India’s family-dependent societal structures by skipping any requirement for rigorous, evidence-based research before policy changes. Most critically, the Bill is completely silent on civil and marriage rights of diverse GIESC identities. It offers no provisions for marriage, adoption, inheritance, divorce or succession for transgender persons, leaving them without full legal recognition in family law and perpetuating their exclusion from the institutions that define citizenship and dignity in Indian society.
In short, the 2026 Bill tightens some definitions and increases penalties for forced exploitation, but it leaves every core structural flaw untouched: the intersex-transgender conflation, the hijra jamaat’s internal abuses, absence of genetic-science-based counselling, refusal to create proper GIESC frameworks and lack of separate intersex legislation or intersectional protections.
These shortcomings enable continued rights violations, policy failure and the very “omissive discrimination” the Supreme Court has repeatedly highlighted. India urgently needs a scientific, culturally-rooted, inclusive approach that separates biological sex characteristics from gender identity, prioritises evidence over ideology, bans non-consensual intersex surgeries, recognises diverse sexual orientations, grants full civil and marriage rights, dismantles exploitative colonial-era systems and protects the dignity of every intersex persons and gender non-conforming child while restoring the affirmative spirit of our pre-colonial traditions.
Our Constitution demands nothing less.
Gopi Shankar Madurai | Special Monitor for SOGIESC Rights, National Human Rights Commission
(Views are personal)