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A writ petition has been filed before the Supreme Court challenging the constitutional validity of the Transgender Persons (Protection of Rights) Amendment Act, 2026, contending that the law dismantles the fundamental right of transgender persons to self-identify their gender.
The plea, filed under Article 32 (which grants every individual the right to move the Supreme Court for the enforcement of their fundamental rights) by transgender rights activists Laxmi Narayan Tripathi and Zainab Javid Patel, argues that the amendments inflict “irreparable constitutional injury” by violating rights guaranteed under Articles 14 (equality before law), 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth), 19 (protection of certain rights regarding freedom of Speech, etc), and 21 (protection of life and personal liberty) of the Constitution. The petitioners are represented by advocate Nipun Katyal.
The challenge raises a central constitutional question: whether the State can, through legislation, define a person’s gender identity by substituting “biological or socio-medical classifications for a person’s lived and self-perceived identity”.
The petition condemns the deletion of the statutory recognition of the right to “self-perceived gender identity”, which had been incorporated in the Transgender Persons (Protection of Rights) Act, 2019, following the Supreme Court’s landmark National Legal Services Authority (NALSA) judgement of 2014.
“Parliament has, by the stroke of a legislative pen, repealed the statutory right that this Court held to be a fundamental right under Article 21,” the plea states, adding that “a provision that directly codifies a right declared fundamental by this Court cannot be omitted by ordinary legislation”.
The petition specifically challenges the amended definition of “transgender person”, arguing that it replaces the earlier self-identification framework with a restrictive classification based on socio-cultural identities and medically verifiable conditions. It contends that this shift could exclude individuals who identify as transgender but do not fall within specified categories, effectively “erasing” sections of the community.
A proviso excluding “self-perceived sexual identities” from the definition is described as being in “direct collision” with constitutional jurisprudence, with the petition warning that its retrospective effect could jeopardise identities already legally recognised.
The plea further challenges provisions requiring certification by a District Magistrate based on recommendations of a medical board, arguing that this reintroduces “medical gatekeeping” rejected by the Supreme Court in the NALSA judgement as violative of dignity and privacy.
It also raises objections to provisions mandating individuals undergoing gender-affirming surgery to apply for a revised certificate, and requiring medical institutions to report such procedures to authorities. According to the petition, this creates a “medical surveillance regime” that infringes on the right to privacy and confidentiality.
The petition additionally questions newly introduced penal provisions, arguing that they risk stigmatising transgender identity and create a disproportionate framework where offences such as sexual abuse continue to attract relatively lower penalties.
The petitioners contend that the Amendment Act is “manifestly arbitrary”, violates the doctrine of non-retrogression of fundamental rights, and fails the proportionality test. They seek a declaration that the amendments are unconstitutional and liable to be struck down.
The 2026 Amendment Act, which received Presidential assent in late March, has drawn criticism from LGBTQIA+ groups, legal experts, and opposition parties. Critics argue that it reverses the self-identification principle recognised in the 2014 NALSA judgement, replacing it with a system of medical and bureaucratic certification.
Under the earlier 2019 law, transgender persons could self-identify their gender through a self-affidavit. The amended law introduces a multi-layered certification process involving medical boards and district authorities, while also narrowing the scope of who qualifies as transgender.
Community members and advocates have warned that the changes could exclude trans men, non-binary persons, and others outside the specified socio-cultural categories, and place transgender persons under increased state scrutiny.
