The Transgender Persons (Protection of Rights) Amendment Act, 2026, commits a philosophical fallacy by pathologising difference itself. “Gender is not a biological fact that needs to be found out; it is experienced, played out, and highly individualist,” Judith Butler argued decades ago. And she said gender is produced in the relationships of bodies, in the experience of the self and not through the study of anatomy.A law that makes gender into a property of the body – and not something known to the person – is not only philosophically primitive, but actually dangerous. The amendment gives medical bodies and the district magistrate, institutions known to have traditionally been antagonistic towards transgender identity and persons, the authority to deprive individuals of their most basic right – to decide who they are or claim to be. Is identity self-experienced and not medically allotted?The Transgender Persons Amendment Act, enacted with little parliamentary discussion and virtually no consultation with the community it supposedly safeguards, has usurped the hard-won right to self identify one’s gender with an obligatory system of medical certification. Doctors on the payroll of the state shall now tell us what we already know – who we are. A stranger will determine identity rather than the person themselves. Does it not sound absurd, ridiculous and arbitrary?The Transgender Persons Act, 2019, was an imperfect tool. Nonetheless, it did not deny a primary postulate, which is that transgender individuals must be granted legal status, non-discrimination and had the right to welfare measures. Flawed though that law was, it showed, at least, that the government was keen to implement the landmark decision of the Supreme Court in NALSA v. Union of India (2014). In it, a five-judge Constitution Bench had declared, with no lack of clarity, that the right to self-identify gender was a fundamental right derived from Articles 14, 19 and 21 of the constitution.The court also identified that gender was not an anatomical concern, and issue of chromosomes, or the opinion of a medical board. Possibly, the court committed the mistake of not keeping the case alive like it has the right to food case.The 2026 Amendment is not just outgrowing this jurisprudential basis, but mechanically breaking it down. Where the court used the term self-identification, the legislature now uses the term medical certification. Instead of the guarantee of dignity in the constitution, the state now requires a diagnosis. There is no evolution of legislation in the Amendment. It is a constitutional regression, and therefore has to be called as much.Also read: Trans People are Not People You Just See During Rituals, They are Citizens Without RightsThe latest amendment has revived memories of how the Shah Bano judgment (1985) was overruled, through the Muslim Women (Protection of Rights on Divorce) Act, 1986, which the Rajiv Gandhi government passed under pressures from Muslim fanatics and to overcome opposition to the unlocking of the gates of the Babri Masjid in Uttar Pradesh. The 2026 transgender amendment has only one difference – no one had demanded it, and yet the Union government decided to overrule a landmark apex court judgement.A number of progressive decisions have been delivered by various courts in recent years. The High Court of Madras held that compulsory medical examination before joining a job was an invasion of privacy. It included within the expression ‘bride’ transwoman. The High Court of Kerala facilitated the entry of transwomen into the National Cadet Corps (NCC) and ruled against gender binary rules. The High Court of Patna allowed trans women the right to contest elections from seats reserved for women.The latest amendment overturns not just NALSA but many such progressive verdicts and is, therefore, worse than the post-Shah Bano saga.“The constitution protects the autonomy of the individual in matters of identity,” observed Justice D.Y. Chandrachud in Navtej Singh Johar v. Union of India (2018). This was not flowery, rhetorical expression; these words framed one of the most acclaimed verdicts in the history of Indian constitutionalism. They were a firsthand, binding statement of what the fundamental right to privacy means to those who inhabit non-conforming bodies. The 2026 amendment does not consider identity a problem of self-knowledge and lived experience but a biological state to be evaluated, categorised, then state-certified.The constitutional flaws of this amendment are not subtle or controversial. They are grave, operate at multiple levels and are patently obvious. The amendment sets up an extremely discriminatory and arbitrary classification. No other category of citizen needs to take a state medical certification of the most personal aspect of their personhood. Cisgender individuals are not required to demonstrate their gender. Imposing this burden solely on transgender individuals alone is not only unequal: It is an arbitrary act of legislative power that lacks any rational nexus to any legitimate state interest, and is thus void under Article 14.The Supreme Court in NALSA and Navtej Singh Johar acknowledged the fact that gender expression, the way he/she presents oneself to the world, the way he/she chooses to identify oneself, is a form of personal expression guaranteed by Article 19(1)(a). A law that makes this expression subject to the approval of the government is a prior restraint, which is unconstitutional.In K.S. Puttaswamy v. Union of India (2017), a Constitution Bench of nine judges declared that privacy was a natural right, and bodily and mental autonomy were at the very foundation of its irreducible core. Compulsory medical validation forces transgender individuals to place their bodies under inspection, their minds under assessment and their identities under authorisation. It is state intrusion into the most intimate terrain.Also read: Has the Privacy Judgement Made Visible Difference to Our Lives?The medical certification procedure will necessarily turn into an object of harassment, humiliation and denial. To the great majority of transgender individuals, especially those living in rural places, low income groups and people who are already marginalised by the very same health care systems, it will be nearly impossible to go through this bureaucratic maze.The Amendment of 2026 strengthens the wretched medicalisation of gender, the colonial-era pathologicalisation of non-binary and transgender identities as a disease to be treated and not an identity to be acknowledged. It does not take into account the lived experiences and diversities of transgender communities on the large Indian cultural and geographical expanse. Most importantly, it was passed without any significant consultation with the community whose lives it will control.The trend of gender identity law is very clear in the world. The first country to self-identify was Argentina in 2012; Malta followed, then Ireland, Denmark and Belgium in 2015, and more recently New Zealand. Other countries are increasingly making self-identification the norm, and instituting that the state has no role in determining the gender of citizens. These nations did not lose their legal systems – they modernised them to bring them in line with human dignity.India in 2026 is going in the opposite direction.Since the matter has reached the Supreme Court, it will need to examine whether this amendment passes the constitutional test and decide whether citizens have the right to know and declare who they are, or shall the state insert a medical certificate in place of that knowledge? The hope is that the Supreme Court will act quickly, as it did when it stayed the University Grants Commission’s equity regulations, and stay the compulsory medical certification requirement in the amended law, by reiterating the principle of self-identification that the court itself had laid down.If this patently arbitrary provision is not stayed, the impression would go out that the court does not take the rights of the sexual minorities as seriously as the concerns of elite-caste students in higher education institutions. True, presumption of constitutionality of statutory law may come in way of the court, but then is the amendment not a brazen instance of statute overruling the court’s own judgement without removing the basis of that judgement?If the right to human dignity is still a fundamental right, the self-identification of gender has to be conceded as implicit in personal liberty.The Transgender Persons Amendment Act, 2026, does the one thing that a democratic constitution must never allow. It requires those whose existence has been denied for ages to demonstrate that they exist. It safeguards not – but it prosecutes. It lacks awareness; it medicates and gatekeeps. It fails to respect the constitutional pledge of dignity. And it makes dignity subject to the signature of a bureaucrat.Dr Faizan Mustafa is Vice-Chancellor of Chanakya National Law University, Patna. Aashank Duwedi is a scholar in the B.R. Ambedkar National Law University, Sonipat. The views expressed are personal.