Certified Unconstitutional: Medical Gatekeeping And The 2026 Transgender Amendment's Three Proportionality Failures
Mitansh Singh Chandel, WBNUJS
ABSTRACT
The Transgender Persons (Protection of Rights) Amendment Act, 2026 makes three amendments of the type that become operative: there is now a requirement in §6 for a recommendation by a Medical Board; §7(1A) introduces a new requirement for the hospital to report; and §7 introduces a new requirement for a revised certificate. Existing commentary has framed the challenge as a binary contest between parliamentary nullification of National Legal Services Authority v. Union of India and the substratum doctrine, a framing both imprecise and analytically insufficient. This article maps each operative change against a distinct limb of the proportionality framework from K.S. Puttaswamy v. Union of India: §6 fails the antecedent legality condition for absence of any defined evaluation criteria, §7(1A) fails the necessity prong as a universal surveillance sweep disproportionate to the State’s welfare-delivery purpose, and §7 fails the balancing prong as a redundant compulsion delivering zero informational benefit to the State. Two counter-arguments, misuse prevention and the substratum doctrine, are addressed and resolved. The article concludes by proposing a constitutional minimum the bench must establish even if it declines to strike down the Amendment in full.
