Transgender Advocate Moves Supreme Court Challenging 2026 Amendment To Transgender Rights Act

The Supreme Court today (July 28) issued notice on a writ petition challenging the constitutionality of the proviso to Section 2(k) of the Transgender Persons (Protection of Rights) Amendment Act, 2026, which excludes those with self-perceived identities from the definition of 'transgender person'. 

A bench comprising Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice V Mohana issued notice to the Union Government. The matter has been tagged with the pending petitions challenging the 2026 amendment act.

The petitioner, a transgender advocate practising before the Calcutta High Court, has challenged the proviso to the amended Section 2(k), which says: "provided that it shall not include, nor shall ever have been so included, persons with different sexual orientations and self-perceived sexual identities".

The petitioner was assigned female gender at birth; however, later identified as a trans-masculine person. In 2023, the petitioner obtained a Transgender Card, which certifies as a person of the third-gender. However, the proviso to the amended clause 2(k) of the 2026 Act has caused issues, as it says that the legislature never intended to include those with self-perceived identities. 

The petition raised a question as to whether the legislation can redefine or restrict the legal identity of transgender persons in violation of the 2014 NALSA judgment of those who are already holding the Transgender Identity Cards issued by the respective States.

It has been submitted by the petitioner that the NALSA judgment established the principle of self-determination and held that gender identity is an intrinsic facet of dignity, autonomy, privacy and liberty, and it can't be subordinated to restrictive statutory classification. The original definition defined 'transgender person' broadly as a person whose gender does not match the gender assigned at birth, and it expressly recognised the right to self-perceived gender identity.

It has been argued that the continuity of identity recognition is essential in professional records as the petitioner is empanelled legal service counsel. Any statutory provision that unsettles would jeopardise the petitioner's dignity and access to justice as the petitioner is one of the few advocates in West Bengal who is actively consulted by the members of the third-gender community on a wide range of matters.

"The impugned amendment therefore has direct and immediate consequences upon the Petitioner's identity, status, and professional life. The entire provision 2(k) under challenge by way of this writ petition indicates towards excluding persons like the Petitioner herein, who was born as a female, but who internally identify as a man. The proviso even goes a step further in shaking the rights and the confidence of the Petitioner, which indicates towards de-recognising the existing people who are registered as transgenders by way of self-perceived sexual identities."

Apart from challenging the vires of the proviso, the petitioner has alternatively prayed that the impugned proviso does not derogate the rights of those already recognised under the 2019 Act or a direction to the central government to clarify whether the proviso to Section 2(k) affects the existing transgender identity card holders. 

Case Details:  ANKANI BISWAS Vs UNION OF INDIA|W.P.(C) No. 883/2026 Diary No. 38493 / 2026

Petition drawn by Advocates Pritthish Roy and Kakali Roy