The NALSA Supreme Court judgment, which upheld the right of transgender persons to self-determine their gender identity and protected them from discrimination and social stigma, led to the enactment of the Transgender Persons (Protection of Rights) Act, 2019. File. | Photo credit: The Hindu
Activists, one of whom spearheaded the historic legal battle to recognize transgender people as a third gender, moved the Supreme Court against the Centre’s new law, which undermines the fundamental right to gender self-identification, a basic imperative of personal autonomy and dignity.
Editorial | To the Transgender Persons (Protection of Rights) Amendment Act, 2026
Laxminarayan Tripathi, who became the first transgender person from the Asia-Pacific region to address the United Nations General Assembly, besides leading the first transgender participation in the Kumbh Mela, has questioned the constitutionality of the Transgender Persons (Protection of Rights) Amendment Act, 2026, as it ignores transgender identity as an “authentic human identity”.
The other petitioner, Zainab Javid Patel, a respected figure in transgender rights advocacy, agrees that the 2026 law departs from the Supreme Court’s own 2014 NALSA ruling that identity is determined by the person, not by biology, birth assignment or state verification.
The petitioners, represented by advocates Nipun Katyal, Surya Pratap Singh Rana, Aishwary Mishra and Manan Sharma, said the 2026 Act raises an extremely fundamental constitutional question of law, that is, whether a state can, through the instrument of legislation, define who a person is and thereby “substitute its own autonomous, autonomous human identity, biological or socio-medical rye for its own classification, biological or socio-medical identity. being”.
Points of interest
The petitioners, who may ask the court, possibly through senior advocate Kapil Sibal, for an early hearing, said the amendment to the law, which came into force on March 30, dangerously allowed the state unlimited authority to determine gender identity despite the 2014 NALSA.
The NALSA judgment, which upheld the right of transgender persons to self-determine their gender identity and protected them from discrimination and societal stigma, led to the enactment of the Transgender Persons (Protection of Rights) Act, 2019. The Act, 2019, largely captured the essence of gender non-conformity and embodied the principle of self-identification. However, according to the proponents, the new amendment to the law shattered the reforms implemented over the years.
First, section 3 of the 2026 Act simply omitted the right to self-perceived gender identity. The petitioners argue that this recognition, which was the most explicit statutory recognition of the NALSA principle, “is now gone. Parliament, with a stroke of the legislative pen, has abrogated a statutory right which this Court held to be a fundamental right under Article 21”. The petition asked how a provision codifying a fundamental right could be deleted by ordinary legislation.
The petition states that the new definition of “transgender persons” includes persons who have been forced into a transgender identity through mutilation or surgical procedures. Conflating victims of human trafficking with an authentic transgender identity created a “stigmatizing and arbitrary classification.”
The petition says the 2026 law’s requirement for medical certification as a condition for legal gender recognition violates the rights of transgender people and amounts to a “medical checkup.” A 2014 ruling required the state to legally recognize the self-identification of transgender people by gender and issue identity documents. The amended law required a favorable recommendation from a government-appointed medical board for a district judge to issue an identity card to a transgender person.
The petition referred to Section 5 of the 2026 Act, which makes it mandatory for people undergoing gender reassignment surgery to apply for a revised identity card, turning a permissive right into a mandatory obligation. In addition, the new law required hospitals and surgical centers performing gender-affirming surgeries to report patient details to the government. Proponents said the law was nothing less than a “medical surveillance regime”.
The petition pointed out that the amendments made the “outward presentation of transgender identity” a criminal offence. This meant that the mere assumption of a transgender identity – the act of dressing, presenting or performing as a transgender person – was a criminal offence. The plea further pointed to the new law’s failure to increase the maximum penalty for sexual and physical abuse of transgender people, reflecting a continued underestimation of their bodily integrity.
Published – 04 Apr 2026 21:29 IST
