I. Introduction

“To be or not to be, that is the question?” one of the most famous lines in English literature applies to contemporary times. In William Shakespeare’s Hamlet, Hamlet is contemplating the choice between existence and non-existence: whether it is better to live and endure life’s unbearable hardships or to choose death to escape the suffering. Hamlet’s dilemma is shared by the transgender community in India, experienced through the Transgender Persons (Protection of Rights) Amendment Act, 2026. The Amendment has fundamentally changed the characterisation of ‘transgender individuals’ in India through a definition overhaul. While the judicial questions remain actively debated, the real question remains: who does the Transgender Persons (Protection of Rights) Act, 2019 protect and how? This article focuses on a critical question: who does the Amendment Act protect and how should it be evaluated against the Supreme Court’s dignity jurisprudence and doctrine of reasonable classification?

II. The Amendment

In essence, the Transgender Persons (Protection of Rights) Amendment Act, 2026 (“Amendment”); deleted Section 4(2) of the Transgender Persons (Protection of Rights) Act, 2019 (“Act”), which stated that “a person recognised as transgender under sub-section (1) shall have a right to self-perceived gender identity.” The amendment establishes an “authority” consisting of a Chief Medical Officer or a Deputy Chief Medical Officer, appointed by the Union or state government. It also mandates that transgender persons should be issued a “certificate of identity”.

Challenges to this Amendment have knocked on the doors of the Supreme Court, primarily challenging whether the (i) removal of self-identification; (ii) National Transgender Registry and (iii) medical certifications violate fundamental rights guaranteed by the Constitution, and the right to self-identification established through National Legal Services Authority v Union of India (2014) 5 SCC 438. The Court has indicated that in more than one way, this amendment is essential as it prevents people from abusing the rights and benefits reserved for ‘transgender people’, by masquerading their identity under the garb of “self-identification.”

III. Defining the Classification

The 2026 Amendment Act creates a severe legal paradox: while it rightfully codifies protections for historical communities like the Hijra, Kinner, Jogta, and Aravani, it actively disenfranchises those outside these lineages who have not undergone gender-affirming surgery. This marks a stark regression from the Supreme Court’s dignity jurisprudence, which firmly rooted gender identity in psychological self-determination rather than biological medicalisation. As a result, the Act abruptly halts legal protection for individuals who have recently embraced their gender identity but cannot afford, or do not desire, surgical intervention. When this demographic attempts to exercise their constitutional right to express their gender, they are no longer shielded by the law. By gatekeeping legal recognition behind surgical and historical prerequisites, the Amendment actively manufactures a new, profoundly vulnerable class of citizens who are left entirely without legal recourse.

This classification ought to be tested against the Doctrine of Reasonable Classification as established by the Supreme Court in West Bengal vs Anwar Ali Sarkar (1952). Article 14 forbids class legislation but permits the State to classify persons for the purpose of passing laws, provided the classification passes the Twin Test of Reasonable Classification: (i) Intelligible Differentia: The classification must be based on a clear, distinguishing factor that separates those grouped together from those left out. (ii) Rational Nexus: That distinguishing factor must have a rational relation to the object sought to be achieved by the legislation.

The Act arguably passes this first prong. The legislation creates a distinct boundary dividing gender minorities into two clear classes: the ones who belong to a historical community or have undergone surgery; and those who have not undergone surgery and rely on self-identification. The second prong is where the Act fails. According to the Act, the object is “to provide for protection of rights of transgender persons and their welfare and for matters connected therewith and incidentalthereto.” The Act directly conflicts with established jurisprudence by violating the Supreme Court’s National Legal Services Authority (NALSA) v. Union of India, 2014 INSC 275, ruling, which declared that mandating Sex Reassignment Surgery for legal gender recognition is unconstitutional. Furthermore, tying legal protection to such medical requirements creates an arbitrary barrier that not only discriminates based on wealth and health but also fundamentally violates an individual’s bodily autonomy by forcing invasive procedures to “prove” identity. Consequently, this framework is fatally under-inclusive, as it explicitly excludes self-determined individuals and artificially manufactures a highly vulnerable class of citizens who are transgender in fact but left entirely unprotected by the law.

IV. Supreme Court’s Dignity Jurisprudence

a. The Right to Psychological Self-Determination:

In National Legal Services Authority (NALSA) v. Union of India (2014), the Supreme Court explicitly recognized that gender identity refers to a person’s “deeply felt internal and individual experience of gender” which may not correspond to their sex assigned at birth. The Court held that “self-determination of gender” is an integral part of personal autonomy and falls squarely within the realm of personal liberty under Article 21. This standard is strictly non-medical, a principle reinforced by the Uttarakhand High Court in Ms. X v. State of Uttarakhand (2019), which ruled that gender self-identification rests on the “inner identity or psyche” and that no person can be “forced to undergo any medical examination for determining their gender”.

b. Expression as a Core Component of Life and Dignity:

Forcing individuals to undergo surgery to legally express themselves violates the baseline protections of life and liberty. In Francis Coralie Mullin v. Administrator, Union Territory of Delhi (1981), the Supreme Court ruled that the right to life includes “the bare minimum expression of the human-self” and freedom of “expressing oneself in diverse forms,” declaring that any act impairing human dignity constitutes a constitutional deprivation.

c. The Mandate of Constitutional Inclusiveness:

Excluding a vulnerable segment of the population runs counter to the fundamental tenets of the Constitution. As highlighted in Naz Foundation v. Government of NCT of Delhi (2009), “inclusiveness” is the underlying theme of the Indian Constitution. Furthermore, the Supreme Court in Navtej Singh Johar v. Union of India (2018) robustly rejected majoritarian or restrictive approaches to identity rights, stating that “One defines oneself” and declaring that popular acceptance or narrow criteria cannot serve as a valid basis to disregard an individual’s rights.

Thus, the classification created through the Amendment also fails to uphold Supreme Court’s dignity jurisprudence.

V. Conclusion

In Shakespeare’s Hamlet, the dilemma of “to be or not to be” represents the agonizing choice between enduring a painful reality or stepping into the void of non-existence. For the Transgender Amendment, “to be” is to exist with legal recognition and constitutional protection; demands that transgender individuals suffer the outrageous fortune of sacrificing their bodily autonomy to invasive, costly, and often unwanted medical gatekeeping. Conversely, choosing “not to be” by rejecting these physical mandates and honoring psychological self-determination results in a devastating legal and social death, where individuals are stripped of their rights, disenfranchised, and rendered invisible by the State.

Ultimately, much like Hamlet’s tragic paralysis, the Act forces the community into an impossible, cruel ultimatum: compromise your physical integrity to be seen by the law, or maintain your autonomy and endure total legal erasure.

*Shally Bhasin is a Partner at Shardul Amarchand Mangaldas & Co.

**Vishwajeet Deshmukh is an Associate at Shardul Amarchand Mangaldas & Co.

Disclaimer: The views and opinions expressed in this article are those of the authors in their personal capacity and do not necessarily reflect the views, positions, or policies of the firm, its clients, or The Bar Bulletin. This article is intended solely for informational and academic discussion and should not be construed as legal advice. Readers are advised to seek independent professional advice before acting on any information contained herein.