Protection to Prosecution: The Criminalization of Transgender Existence in India's 2026 Amendment Bill

The views expressed below are those of the author and do not necessarily reflect those of the Carr-Ryan Center for Human Rights or Harvard Kennedy School. These perspectives have been presented to encourage debate on important public policy challenges. 

India's Transgender (Protection of Rights) Amendment Bill, 2026, is a major step back for transgender rights in South Asia. As a transgender activist from the Global South, I cannot remain watching this moment from afar; I am part of a regional fight for dignity, self-identification, and legal recognition. I write this piece based on firsthand accounts from Indian transgender activists, community leaders, and institutional members whose testimonies and lived experiences illustrate the immediate impact and larger consequences of this law. It is intended to emphasize not only what is at risk in India now, but also what this moment means for the future of gender justice in our area.

The global resurgence of far-right politics is deeply intertwined with domestic political strategies that instrumentalize identity for electoral consolidation. In India, this dynamic is particularly evident, where ruling elites have increasingly mobilized majoritarian nationalism to solidify political dominance. Rather than addressing structural socio-economic inequalities, domestic politics has shifted toward symbolic and ideological battles centered on religion, culture, gender, and belonging that disproportionately target already marginalized communities. Policies and narratives framed as safeguarding national identity often function as tools of exclusion, rendering religious minorities, lower castes, and gender-diverse groups more vulnerable to both institutional discrimination and societal violence. This bill is not merely a byproduct of governance but a deliberate political project, where polarization becomes a resource for maintaining power. The consequence is a shrinking democratic space in which dissent is delegitimized, minority rights are recast as threats, and everyday life for marginalized populations becomes increasingly precarious and insecure.

The common narrative spread by right-wing propagandists in South Asia goes as follows: 

“The Global North wants the Global South to accept its concepts, such as the idea of being transgender.” Interestingly, the trend seems to have altered. Countries in South Asia are growing more and more like the West, especially the United States, where gender is becoming a bigger political problem, and now the West can be seen regressing. "Others use transgender identities to change how people think about laws, welfare stories, and ideas." This is known as "gender-washing." People often do this by making transgender people seem like threats to family, faith, and children. 

The Transgender (Protection of Rights) Amendment Bill 2026 was passed by India's Lok Sabha on March 24, 2026 and as of the 25th of March it has passed through the Rajya Sabha as well. This development is a huge step back from India's earlier progressive stance. 

In the  landmark case of National Legal Services Authority (NALSA) v. Union of India (2014), the Supreme Court of India decided that everyone has the right to self-perceived gender identity. The Transgender Persons (Protection of Rights) Act of 2019 makes this idea more official by acknowledging transgender persons and giving them more basic rights. The adjustment made in 2026, on the other hand, entirely modifies this concept by substituting self-identification with medical certification and limiting the number of people who are formally accepted as transgender.

While commenting on the recent amendments: Aryan Pasha, an Indian trans man activist stated: 

“There are loopholes from start to finish. You have erased the identity and existence of trans men as if we do not exist. We already have no history, born into a patriarchal society where you are born in a female body but identify as a man; we were already fighting society. We thought we had achieved self-identification with the NALSA judgment and would get our rights. But the bureaucrats did not try to understand this. I posted my National Council ID card on social media and questioned what I was doing in that council if I don't fit the definition. There was another trans man, too. We were trying to explain that we are visible, we are here, and you should take recommendations from us. But there was no discussion. Furthermore, there was no representative for trans men in the second National Council.”

Colonial Roots of Gender Policing

India's criminalisation of transgender people has its roots in colonial history. The British passed the Criminal Tribes Act of 1871, which declared that transgender and gender non-conforming persons were criminals by nature and related them to immoral activity that went against Victorian notions of good and wrong. The Act was repealed in 1952, therefore communities didn't have to observe it anymore. However, these archaic ideas of morality can still be seen in the law today.

The 2026 changes...effectively make it impossible for transgender persons to live with dignity, subjecting them to constant state-sanctioned surveillance and regulation.

The 2026 changes represent a worrying step back toward this legacy. They effectively make it impossible for transgender persons to live with dignity, subjecting them to constant state-sanctioned surveillance and regulation. Despite successive amendments, the law remains ambiguous, vague wording, such as the provision criminalising conduct that causes someone to 'act transgender,' is open to broad interpretation and potential misuse. These rules risk being used to disproportionately target not only transgender persons, but also the friends, family, and allies who support them––the very people most essential to protecting vulnerable community members.

The bill gives police and government bodies unchecked discretionary powers. Such laws open the door to harassment and abuse. This risks the safety and wellbeing of communities that already face systemic bias. The law itself feels less like protection and more like a threat, one that is difficult to understand, difficult to challenge, and impossible to ignore.
 

The 2026 Amendment: A threat to Trans Rights in India

One of the most troubling aspects of the amendment is that it changes the definition of transgender identity from what was established in the 2019 Act. The original law defined transgender people as those whose gender identity is different from the sex they were assigned at birth, covering people with different sex characteristics as well as socio-cultural identities like hijra, kinnar, aravani, and jogta.

The amendment, however, does not account for people who self-identify. It also stops recognising trans men, trans women, and gender non-conforming people, even if they have undergone medical procedures. This goes against the idea that identity is something that comes from within and belongs to the individual. It also brings into question of the future rights of those who have already been participating in their day-to-day life under the previous law. They are now at risk of being ostracized from their communities, their workplaces and possibly exposed to concerning levels of potential discrimination. 

The law sets up medical boards that will decide if someone is legally recognised. This converts identification from a personal right to a medically verified status. It also means that medical facilities must share and gather information about individuals seeking gender-affirming care.

Transgender Activist Laxmi Narayan Tripathi shared their thoughts:

 “From the time I was a small child until now, as I approach fifty, I have known myself to be a transgender woman, and I belong to the kinner community. The bill that has been passed in the Lok Sabha, what kind of bill is this? It has trampled upon the NALSA judgment and torn apart the Constitution. We believed that the government stood with kinnars, transgender persons, trans men, and non-binary people, but today it feels like a dagger has been driven into our chest. You have removed trans men and others as if they do not exist, and now you are turning us into criminals. Anyone can accuse us, and we face the threat of life imprisonment and heavy fines. Are we criminals? Are we not human?” 

These rules are overly strict and infringe on people's privacy and their right to make their own choices. Putting transgender identities under psychological, biological, and medical scrutiny could make people seem like they are sick.

It also puts people who have previously been recognised by the law in danger by making their rights uncertain. It's impossible to make rules that work in real life when you don't consult transgender groups while making the changes. I'm genuinely scared to speak up, get involved, and take charge.

How it impacts everyone in society 

Many individuals believe that this regulation only applies to transgender people. This is an assumption that does not hold true. Verification, surveillance, and conditional recognition have a negative impact on everyone in society – not just gender minorities.

When committees or medical boards need to check someone's identity, it means that the state must give them authorisation, not simply the person. You can also apply this way of thinking to other parts of your identity, such as your religion, your marital status, or where you live. Even cisgender people may have trouble securing passports or national identity cards if their appearance or history is called into question.

In the professional sphere, employers may check on their employees at work in unofficial ways to stay out of trouble with the law. This could lead to intrusive questioning and rigorous enforcement of gender roles. The police might think it's okay to observe people in public to see if they fit gender norms. This would lead to policing taking place on subjective biases and whims, such overreach has historically shown us that it only leads to human rights abuses. People are also apprehensive about being observed and having their information used without their knowledge when systems are set up to watch them and check who they are. People are more likely to be biased if they gather, keep, or even misuse private information about other people. 

These amendments in the law make gender roles stricter while also making it difficult for people to trust each other. People who don't fit into what society conventionally believes to be right, whether they are transgender or cisgender, may be rejected, harassed, or shamed. This takes away people's freedom and makes it tougher for them to express themselves safely. 

The law also says that all medical facilities must connect medical treatments to legal gender identification. Some treatments, like hormone replacement therapy, may need to be approved depending on your legal circumstances. This can make it challenging to get medical help on time. Cisgender people who desire hormone therapy for medical reasons may have to wait longer or perform additional testing. 

Furthermore, even certain cosmetic procedures such as silicone implants or facial surgery, may be seen as gender-related interventions that require legal approval. If you look at things in terms of traditional gender stereotypes, even basic treatments like laser hair removal could be unavailable to everyone. 

This sets a precedent for the state to decide who can change their body, which shows that freedom isn't always guaranteed. It affects not just transgender people, but also cisgender people who are having reconstructive surgery, intersex treatments, or elective surgeries. 

As a result, one can expect increased medicalisation and regulation of bodies over time. To avoid breaking the law, healthcare providers could ask for more paperwork or withhold treatment. In the end, fewer individuals can access care, costs go up, and it takes longer to access basic procedures which every consenting adult should be able to choose to access when needed.

The Risk of Unchecked State Power

The measure gives the government more control over highly private elements of people's life. It turns identity from a natural right to a limited status. This takes away people's freedom and gives it to groups that work for the government instead. 

When these kinds of frameworks are in place, the government may just invade people's privacy, which makes control systems more than they were meant to be. Rights are no longer universal, which weakens the law and lets people do anything they want. 

People lose faith in society over time, are more willing to obey the law out of fear, and are less likely to say what they think. It transforms the way people and the government work together, which will have long-term repercussions on democracy, decency, and equality. 

The bill doesn't safeguard people; it makes it harder to discover them, gives the government more power over the most basic thing that makes us human: the right to define ourselves.

Criminalisation as a Covert Mechanism for Identity

The bill includes provisions that are supposed to protect people from forced labour, harassment, and threats. But in practice, these protections make things worse for people who are already marginalised. The law conflates gender identity with criminality by tying recognition to punishment. On this note Transgender activist Simran Sheikh said, “We are people, not the files to verify. This law changes one simple truth: identity is no longer yours to define. We stand for self-identification.” 

Criminalisation makes it easier for the government to surveil people and their support networks. This can erode trust between individuals and their families, carers, and communities, causing both formal and informal care networks to break down. This approach runs counter to rights-based frameworks, particularly those that protect people with disabilities. 

Increasingly, modern governments are seeking to legislate aspects of people's personal lives, such as what they wear, how they live, and who they are. Gender identity is becoming one of the most contested sites of this power.

The bill doesn't safeguard people; it makes it harder to discover them, gives the government more power over the most basic thing that makes us human: the right to define ourselves.

Way Forward

A meaningful way forward requires shifting the focus back towards the protection of basic rights and dignity. At its core, this means restoring the principle of self-identification as affirmed in the NALSA judgment and ensuring that the law on gender rights expands the definition of self-identification rather than narrowing it. Laws must be grounded in constitutional guarantees of equality, privacy, and personal liberty, not in frameworks that lead to criminalizing self-expression. 

If the state continues on this path this and does not allow these amendments to be challenged. It risks remaining disconnected from lived realities of gendered bodies. The community is worried and has stated that they will not accept such an attack on their rights. Laxmi Narayan Tripathi states:  

“I want this black day for the transgender movement in India to end quickly. If it doesn't, we will fight on social media, on the streets, raise our voices, and fight in the courts. We will not sit quietly. The entire community needs to unite at this time. Many people are terrified, anxious, and worried. Our homes are open for you. I believe we will win this too.” 

This is a sentiment shared by many, not just transpersons in India but those across borders. As stated before, these amendments hurt everyone. A rights-based, inclusive approach is not just necessary for transgender communities; it is fundamental to preserving the integrity of the law and the freedoms of society as a whole. 

Nayyab Ali is a transgender rights expert and a Global LGBTI+ Human Rights Fellow at the Carr-Ryan Center for Human Rights, Harvard Kennedy School. Her work focuses on advancing legal recognition, dignity, and inclusion for transgender communities across South Asia.