Constitutional concerns have been raised by the Rajasthan High Court regarding the proposed amendment to the “Transgender Persons Bill 2026”. It is the Court’s view that when the proposed legislation becomes law, it may undermine the fundamental rights of transgender individuals to determine what their gender identity is.
Although a version of the Bill has been passed through Parliament, it must still receive the approval of President Droupadi Murmu to become law. The Justices have indicated their concern that many aspects of the bill are likely to turn this very personal right into one regulated by the state.
The Court raised these issues during a hearing related to a petition regarding reserving benefits of employment and education for transgender individuals.
Concerns Over Self-Identified Gender
The Honourable Justices Arun Monga & Yogendra Kumar Purohit expressed their worry that this amendment would violate rights to self-identification of one’s own gender.
The judges explained that if the proposed framework forces individuals to obtain an official certificate/approval from a government entity before being able to legally identify themselves as a gender, it makes that person’s gender identity dependent on government consent rather than a constitutional human right and entitlement.
The judges stated that each individual’s personal identity is a critical component of human dignity, autonomy, & liberty as guaranteed to all citizens by the Constitution of India.
Reference to Landmark Supreme Court Judgement
The High Court mentioned the historic verdict rendered by the Supreme Court of India relating to NALSA (National Legal Services Authority) v. Union of India (NALSA case). This decision affirmed the right of transgender persons to determine their gender identity themselves, affirming as well the fact that gender identity is part of the “core” of the personal liberty guaranteed by Articles 14, 15, 16 and 21 of the Constitution. In keeping with this concept, the High Court held that selfhood is not a privilege given by the state; rather, it is a right in and of itself. The bench indicated any future legislation must comply with these constitutional rights.
Petition On Reservation For Transgender Persons
A case decided by the court involved a petition of a transgender person asking for reservations in education and government employment. The petition was in opposition to the Rajasthan government’s notification that included all transgender people in its Other Backward Class designation for purposes of reservations. According to the court, placing transgender persons in the OBC classification would provide minimal benefits since they now would be included in a classification that has no specific reservation quota set aside for them. The judges pointed out that transgender persons who would have received the most amount of reservation benefit prior to this notification were people classified as Scheduled Caste or Scheduled Tribe and that, as a result of this automatic placement of all transgender persons into the OBC classification, those persons now would lose their prior classifications, thereby losing their current level of protection.
Social Reality of Transgender Communities
The court, in its analysis of the current social and economic circumstances of transgender persons, considered the historical and cultural acknowledgement of gender diversity in India. Various faiths have recognised transformation and the third gender through the depictions of Mohini, Brihannala, and Ardhanarishvara in mythological and cultural stories. Although it has been established in these stories and through cultural context that transgender persons exist within Indian society, discrimination, exclusion, and minimal opportunity for all transgender persons were found to be prevalent today.
According to the court’s decision, discrimination, marginalisation, and lack of opportunity are commonly experienced by many transgender individuals in modern-day India.
Directions Issued To The State
While the court didn’t impose an immediate quota for reserved seats, it nevertheless instructed the state government to carry out a comprehensive study on the need for such seats. Furthermore, the judges ordered that a committee be established made up of senior state officials, social activists and representatives from the transgender community.
The committee will be tasked with performing an assessment of how much discrimination/marginalisation has been experienced by transgender individuals in each category of society.
In addition to this, and until the long-term policy has been developed, the court stated that all transgender individuals applying for jobs or admission to education will receive three additional points in the selection process for government jobs or for admission into educational institutions funded by the state.
Balancing Law And Constitutional Rights
The court concluded by stressing that any future policy must protect the principle of self-identification as much as possible.
Even if the amended law comes into force, the judges said the state must ensure that constitutional rights are not weakened by procedural rules.
The ruling highlights an ongoing debate in India about how to balance administrative systems with the fundamental rights of gender identity and equality.
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