Selfhood Is Not A Matter Of Concession; Transgender Amendment Bill 2026 Risks Reducing Gender Rights To “State-Mediated Entitlement”: Rajasthan High Court

The Court was hearing a writ petition challenging the notification whereby the State of Rajasthan classified transgender persons as OBC without carving out a separate reservation framework in compliance with the judgment in National Legal Services Authority v. Union of India (2014) 5 SCC 438.

Upon deciding the matter, the Court deliberated on the Transgender Persons (Protection of Rights) Amendment Bill, 2026, which was passed by the Parliament, but has not yet come into force, as it is pending the assent of the President and subsequent notification.

A Division Bench of Justice Arun Monga and Justice Yogendra Kumar Purohit observed: “The subsequent amendment to the Transgender Persons (Protection of Rights) Act, 2019, however, marks a departure from that said constitutional baseline. It is now proposed that legal recognition of gender identity shall be conditioned upon certification, scrutiny, or other forms of administrative endorsement. What was recognised by the Supreme Court as an inviolable aspect of personhood now risks being reduced to a contingent, State-mediated entitlement.”

Advocate Vivek Mathur appeared for the petitioner, while Additional Advocate General B.L. Bhati represented the respondents.

Court’s Observation

The Court, while deciding the petition, had proceeded on the foundational premise articulated in NALSA (2014), wherein the Supreme Court recognised the right to self-identify one’s gender as intrinsic to dignity, autonomy, and personal liberty.

 Justice Arun Monga, in an separate epilogue appended to the judgment, took note of the Transgender Persons (Protection of Rights) Amendment Bill, 2026, observing that while the Judgment was being finalized, the “Parliament passed the Transgender Persons (Protection of Rights) Amendment Bill, 2026, (yet to become An Act as it is pending assent of the President and to be notified).

Justice Monga highlighted that the amendment proposed therein is “that subsection (2), i.e. right to self-perceived gender identity, in section 4 of the Principal Act shall be omitted”. The Court said that “the proposed Bill seeks to amend the 2019 Act by taking away the right to self-determination or self-proclamation of being a third gender”.

The Court, while referring to NALSA (2014), observed that the Supreme Court had recognised that “the right to self-identify one’s gender is an intrinsic facet of dignity, autonomy, and personal liberty under Articles 14, 15, 16 and 21 of the Constitution”. This, the High Court said, meant that “selfhood is not a matter of concession, it is a matter of right”.

The Court, however, noted that the subsequent amendment (2026) to the Transgender Persons (Protection of Rights) Act, 2019, signalled a departure from that constitutional baseline. It was observed that what is being proposed now is that legal recognition of gender identity shall be conditioned upon certification, scrutiny, or other forms of administrative endorsement. What was recognised by the Supreme Court as an inviolable aspect of personhood, the Court added, now risks being reduced to a contingent, "State-mediated entitlement".

The Court underscored that statutory developments must operate within the framework of constitutional guarantees that the State “must be mindful that statutory developments cannot be implemented in a manner that dilutes constitutional guarantees”.

“The comparative models, including those adopted by other States, may yet be structured in a manner that advances inclusion without subjecting identity to impermissible constraints”, the Bench added.

It was observed that even within the altered legal framework, “any policy framework devised by the State must be careful and it must strive to preserve, to the fullest extent possible, the constitutional guarantee by extending affirmative measures of reservation”. In devising any framework, be it legislative or executive, the Court underscored, “the Rule of Law demands that such measures must withstand scrutiny not merely of legality, but of constitutional conscience”.

The Court further emphasised that the State, as a constitutional actor, “is expected to adopt an approach that harmonises statutory compliance with constitutional congruity, ensuring that the rights of transgender persons are not rendered illusory by procedural constraints”, while concluding that “the true measure lies in the tangible dismantling of systemic marginalisation that transgender persons continue to endure”.

Cause Title: Ganga Kumari v. State of Rajasthan & Ors. (Neutral Citation: 2026:RJ-JD:14683-DB)

Appearances

Petitioner: Advocates Vivek Mathur, Prakash Kumar Balout, Dhirendra Singh Sodha

Respondents: B.L. Bhati, AAG; Advocates Deepak Chandak, Piyush Bhandari, Mahesh Thanvi, Pragya Thanvi