Transgender Bill may turn right to gender identity into State-dependent entitlement: Rajasthan High Court

The Rajasthan High Court on Monday said the Transgender Persons (Protection of Rights) Amendment Bill, 2026, which was recently passed by parliament, risks turning “an inviolable aspect of personhood” into a State-mediated entitlement for transgender persons [Ganga Kumari v State of Rajasthan].The Bill passed last week seeks to redefine who qualifies as a “transgender person". It awaits the assent of the President to become a law.Observing that the Bill takes away the right to self-perceived gender identity, a Bench of Justices Arun Monga and Yogendra Kumar Purohit said,"It is now proposed that legal recognition of gender identity shall be conditioned upon certification, scrutiny, or other forms of administrative endorsement. What was recognized by the Supreme Court as an inviolable aspect of personhood now risks being reduced to a contingent, State-mediated entitlement.".What was recognized by the Supreme Court as an inviolable aspect of personhood now risks being reduced to a contingent, State-mediated entitlement.Rajasthan High Court..The Court made the observations while dealing with a petition filed by a transgender person over lack of reservation for transgender individuals in educational institutions and public employment.The Bench clarified that the judgment pronounced today proceeded on the foundational premise articulated in the NALSA judgment, 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."Bottomline being, selfhood is not a matter of concession, it is a matter of right," Justice Monga said in the epilogue of the verdict.The Court explained that basis of NALSA judgement is that the concept of gender is not binary and that transgender persons have a right to self-determination."Recognition of gender identity is a fundamental right," it added..In the altered legal landscape, 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, the Court said.It added that the rule of law demands that any framework, be it legislative or executive, must withstand scrutiny of constitutional conscience and not mere legality."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. The true measure lies in the tangible dismantling of systemic marginalisation that transgender persons continue to endure," the Bench added.These comments were mainly addressed to the State of Rajasthan, which has been asked to take a policy decision on the reservation for transgender persons. .The plea filed last year essentially challenged a State government notification declaring transgender persons as Other Backward Class (OBC) without providing them any separate reservation. At the outset of the judgment, the Court noted that religious scriptures in India hold transgender persons in immense importance, but in reality, quite often they are denied even the basic humane treatment."Our mythology features several figures associated with transgender or thirdgender identities, often depicted through gender transformations or androgyny. These include deities and characters like Mohini, Ila (or Sudyumna) , Arjuna (as Brihannala), and Ardhanarishvara. Certain deities are actively worshipped, especially by transgender communities. Bahuchara Mata has devotees (including those who self-castrate) seeking her blessings at temples like in Gujarat through festivals, vows, and rituals. Other figures like Angalamma and Yellamma also receive devotion, especially from transgender groups, viewing them as protective and auspicious," the Bench noted.However, it added that despite the rich cultural acknowledgment, the lived current social reality of transgender persons in contemporary India continues to remain one of profound disadvantage, as they still are among the most vulnerable sections of society. "Their social exclusion, economic vulnerability, and institutional discrimination continue to define their daily existence," the Bench observed.The Bench questioned whether a society that venerates gender diversity in its spiritual imagination can deny even the basic human right of dignity, equality and constitutional protection to those who embody that very diversity in real life..Examining the notification issued by the State for declaring transgender persons as OBC, the Court noted that as per the government's own admission, it had not benefited any transgender person till date.It added that the State decision had taken away even the pre-existing reservation entitlements of the transgender persons. "Prior to issuance, a transgender person born into an SC/ST/SEBC family was entitled to reservation benefits by virtue of birth in that category, which in many cases, may be more advantageous than placement within the OBC category. However, by bringing all transgender persons within Entry No. 92 of the OBC category, the notification effectively subsumes and extinguishes their pre-existing reservation entitlements, without even affording them an option to choose. This results in a manifestly anomalous and adverse consequence, whereby individuals lose more beneficial protections previously available to them belonging to SC or ST or SEBC category, as the case may be."Thus, the Court observed that the notification was a mere facade and an eyewash. "As it seems to be an exercise in form without substance. It confers no real reservation whatsoever; it simply parrots what already stands declared by the Supreme Court in NALSA, namely, the recognition of transgender persons within the fold of socially and educationally backward classes. Such reiteration, devoid of any concrete affirmative action, is merely illusory and falls short of the reservation mandated by the Supreme Court," the Bench added.However, the Court also agreed with the State's submission that the prayer for creation of horizontal reservation for transgender persons, squarely falls within the domain of policy formulation concerning reservation structuring..Therefore, the Court issued following directions to the State government,1. undertake a comprehensive and in-depth study through a Committee comprising senior functionaries preferably headed by the Principal Secretary, Department of Social Welfare and Empowerment, along with eminent social activists and representatives of the transgender community, to assess the extent of compounded marginalization suffered by transgender persons belonging to SC/ST/SEBC/OBC/Open categories vis-a-vis others; and2. formulate and recommend appropriate measures or a workable framework to ameliorate this aggravated disadvantage, with a view to enabling such individuals to achieve substantive equality in access to public employment and educational opportunities.The Court added that after the Committee submits its recommendations, the State government shall take an informed and appropriate policy decision for providing reservation as per the statutory mandate.In the meantime, the Court said that transgender persons belonging to SC/ST/SEBC/OBC/open categories ought to be granted an additional weightage of marks in matters of selection and appointment to posts under the State Government as well as in the admissions to educational institutions."Until such policy decision is taken, transgender persons belonging shall henceforth be granted 3% additional weightage in the maximum prescribed marks for purposes of selection and appointment on the posts and admission to educational institutions under the State Government, its instrumentalities, public sector undertakings, and State-funded or aided institutions," the Court ordered..Considering the latest amendments, the Court said it would still be incumbent upon the State of Rajasthan to ensure that any policy framework evolved after today's judgment preserves, to the fullest extent possible, the principle of self-identification. However, it clarified that the same must be within the contours of the amended law. "The State must be mindful that statutory developments cannot be implemented in a manner that dilutes constitutional guarantees," the Court added..Advocates Vivek Mathur, Prakash Kumar Balout and Dhirendra Singh Sodha represented the petitioners.Additional Advocate General Praveen Khandelwal represented the State.[Read Judgment]