Supreme Court Seeks Union's Response On Challenge To Transgender Rights (Amendment) Act, Asks If Self-Identification Could Be Misused

The Supreme Court today issued notice to the Union Government and States/UTs on a batch of writ petitions challenging the constitutional validity of the Transgender Persons (Protection of Rights) Amendment Act, 2026.A bench comprising Chief Justice of India Surya Kant and Justice Joymalya Bagchi issued notice returnable within six weeks. The matter will be next placed before a three-judge bench.At the outset, Senior Advocate Dr Abhishek Manu Singhvi, raised objection to the amendment taking away the right to self-identification of gender. He argued that the amendment was contrary to the 2014 judgment in NALSA case, which declared self-recognition of gender as a fundamental right.CJI Surya Kant, at this juncture, raised some concerns about allowing self-identification, as there could be persons who misuse it to corner the benefits earmarked for transgender persons."Does it not pose a danger? There are people who can masquerade [as transgender persons] for getting some reservations or privileges meant which are meant [for transgender persons]?" CJI Kant said. Singhvi replied that as far as his understanding goes, there is no reservation provided for transgender persons, and hence there was no possibility of a person posing as a transgender person to get benefits. Singhvi further said that a remote possibility of misuse in a 0.01 % case cannot justify the suspension of Article 21 right of the majority.When Singhvi argued that a legislative amendment cannot nullify a judgment, Justice Bagchi seemed to disagree by saying that the legislature can take away the substratum of a judgment. "When you say NALSA says self-identification is a matter of dignity, we can say examine the amendment in the light of Article 21. This amendment changed the substratum of the law on which NALSA examined it. So, instead of self-determination, there is a medical evaluation."Singhvi said that if a person, whose overwhelming characterics is that of the opposite gender, is undergoing therapy, then it is criminalised as per the amendment.Solicitor General of India Tushar Mehta then interjected to say that only forcing someone to undergo a sex change, or forcing a child into such a change, is criminalised. "There are instances of forced castration," SG said. Singhvi said that the amendment will exclude a lot of persons from government benefits. SG then replied, "You are either a man or a woman. You are not excluded."At this point, a person, Harsha Asad, appearing on caveat, told the bench that the Act is yet to come into force as the Centre has not notified it, and hence the petitions were premature. The caveator told the bench that some members of the community are engaging with the Government on the political side to not enforce the amendment, and the issuance of the notice on the petitions might scuttle that process.When Singhvi requested an interim order that the treatment of persons who undergo treatment should not be affected by the amendment, the bench said that there was no question of granting an interim relief since the Act is yet to come into force."We are not seeking stay of Act. Stay being sought is that people undergoing treatment today on self-recognition application are not going to be given treatment..." Singhvi urged. Senior Advocate Arundhati Katju submitted that hormonal therapy has been abruptly stopped for many persons. The SG said that the affected persons should come to the Court.Briefly put, the petitions assail the Amendment Act, which received the assent of the President on March 30, 2026, as causing "irreparable constitutional injury" to the fundamental rights of transgender persons guaranteed under Articles 14, 15, 19 and 21 of the Constitution.According to the petitioners, the amendments dismantle the principle of self-identification of gender recognized as a fundamental right by the Supreme Court in the landmark National Legal Services Authority (NALSA) v. Union of India judgment. They submit that the Court is now called upon to protect a right that it had previously declared to be intrinsic to dignity and personal autonomy under Article 21. Among other provisions, the petitioners challenge the substitution of definition of "transgender person" under Section 2(k) of the 2019 Act. While the earlier definition located gender identity in the subjective experience of the individual, the amended provision replaces this framework with a list of socio-cultural identities and medically verifiable biological conditions. The petitioners argue that this shift removes the basis of self-identification and could result in individuals who identify as transgender but do not fall within specified categories being denied legal recognition.Another major ground of challenge relates to the amendment requiring a District Magistrate to issue a certificate of identity as a transgender person only after examining the recommendation of a medical board. The petitioners submit that this reintroduces medical certification requirements ...

Supreme Court Seeks Union's Response On Challenge To Transgender Rights (Amendment) Act, Asks If Self-Identification Could Be Misused

Debby Jain

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Supreme Court Seeks Union's Response On Challenge To Transgender Rights (Amendment) Act, Asks If Self-Identification Could Be Misused

Debby Jain

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