“Determination of gender to which a person belongs is to be decided by the person concerned,” the court said. “Self-determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed under Article 21 of the Constitution of India.”
It also located self-identification within the right to freedom of expression under Article 19(1)(a) of the Constitution. “Gender identity… lies at the core of one’s personal identity, gender expression and presentation,” it said. “State cannot prohibit, restrict or interfere with a transgender’s expression of such personality, which reflects that inherent personality.”
The court emphasised that “gender identity refers to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth”. It said that it “prefer[red] to follow the psyche of the person in determining sex and gender … instead of ‘Biological Test’.”
In 2018, the Supreme Court in Navtej Singh Johar v. Union of India decriminalised consensual same-sex relations, ruling that sexual orientation and gender identity are innate because “[a]t the core of the concept of identity lies self-determination, realization of one’s own abilities visualizing the opportunities and rejection of external views with a clear conscience that is in accord with constitutional norms and values…”
Members of Humsafar trust for the LGBTQIA+ community celebrate in Mumbai after the historic verdict on Section 377 on September 6, 2018. Photo: Nirmal Harindran
High Courts have ever since consistently applied this principle to prevent state and institutional interference in an individual’s self-identified gender. In 2020, the Madras High Court held that “[i]t is entirely for the transgender person to self-identify her gender and… this self determination cannot be questioned by others” while confirming that sexual harassment laws apply to transwomen.
Reiterating this, the Kerala High Court held in 2023 that “[t]he right to choose gender is vested with the individual concerned and no one else, not even the court” – using this rationale, the court prohibited the parents of a new-born intersex child from performing genital reconstructive surgery on the child in order to raise them as a girl.
On the issue of official documentation, High Courts have consistently directed state authorities and educational boards to update names and genders on educational certificates based on self-identification, without demanding medical proof. In one such case in 2020, the Bombay High Court said that “an institute [cannot] be permitted to force upon [a transgender person] a name, identity or a gender that the [person] has chosen to reject in preference to some other” while directing the Tata Institute of Social Sciences to update a student’s changed name and gender.
In the realm of employment, the Madras High Court in 2014 struck down the termination of a woman police constable who was dismissed after a forced medical examination declared her “transsexual”. The court ruled that compelling a person to undergo a medical examination to prove their gender violates their right to privacy and dignity. Similarly, the Kerala High Court in 2020 allowed a transwoman to enter the National Cadet Corps Girls Division, overriding gender-binary recruitment rules.
When it comes to contesting elections, the Patna and Bombay High Courts have, in separate rulings, allowed transwomen the right to contest local elections for seats reserved for women. The Bombay High Court’s verdict led to the petitioner Anjali Guru Sanjana Jaan, then a 42-year old Muslim transwoman, claiming a historic victory in the Bhadli Budruk gram panchayat election in 2021.
Courts have also protected the right to family and relationships. In 2019, the Madras High Court upheld a marriage between a man and a transwoman under the Hindu Marriage Act, ruling that the term “bride” includes transgender women. This was the first judicial ruling sanctioning a marriage between a cisgender and a transgender person. The court’s order said: “A person who is in the Third Category is entitled to remain beyond the duality of male/female or opt to identify oneself as male or female. It is entirely the choice of the individual concerned.”
In the Supriyo v. Union of India marriage equality case in 2023, the Supreme Court affirmed that transgender persons in heterosexual relationships have the right to marry under existing laws.
In 2020, the Orissa High Court in 2020 granted police protection to a transman and his female partner, upholding their right to a live-in relationship.
The 2026 Amendment Act goes against this by removing the definition of a transgender person based on self-perceived identity. Instead, it mandates that a certificate of transgender identity will only be issued by a district magistrate after examining the recommendation of a designated medical board, headed by a chief medical officer. It deletes categories like “trans-man”. “trans-woman,” and “genderqueer” from the definition of “transgender person” in the Transgender Persons (Protection of Rights) Act, 2019, and explicitly mandates surgery to obtain a revised certificate for a change in gender.
Legislative reluctance and ‘omissive discrimination’
The judiciary’s expansion of rights stood in contrast to the back-and-forth in Parliament to pass the 2019 Act. Following the NALSA verdict, a Private Member’s Bill drafted by DMK MP Tiruchi Siva was passed in Rajya Sabha in 2015. However, the government subsequently drafted its own versions — first in 2016 and then, after reference to a Parliamentary standing committee, in 2018. Both drafts faced backlash from the transgender community over provisions such as the criminalisation of begging — a traditional source of livelihood for many in the community — and the introduction of district screening committees to certify gender.
While the eventual Transgender Persons (Protection of Rights) Act, 2019, did away with the screening committees, it still required proof of surgery to change one’s gender to male or female. This, and other provisions of the Act, were challenged before the Supreme Court in 2020 by several transgender activists — the matter remains pending.
Even after the 2019 Act was passed, its implementation faced challenges, prompting courts to intervene several times — but most decisively in the Supreme Court’s judgement in Jane Kaushik v. Union of India in October 2025.
The case involved a transgender woman who was harassed and forced to resign from private schools due to her gender identity. The Supreme Court criticised the Union and state governments for their “administrative lethargy” and what it termed “omissive discrimination” — discrimination caused by the State’s failure to act.
The Supreme Court observed: “Unfortunately, it appears that the 2019 Act and the 2020 Rules respectively have been brutishly reduced to dead letters. The Union of India and the States have exhibited a grossly apathetic attitude towards the transgender community, by defacing the lived realities of this community with their inaction.”
The court ordered the Centre to form an advisory committee and implement the law in letter and spirit. However, the Parliament’s introduction of the 2026 Amendment Act, reintroducing medical boards for gender certification and removing self-identification, was done without consulting the committee.
This legislative shift was addressed by the Rajasthan High Court in an order on Monday granting additional 3% weightage in the marks prescribed for selection to public educational institutions and public sector enterprises for transgender persons. Taking judicial notice of the newly passed 2026 Amendment Act, Justice Arun Monga, in an epilogue to the judgment, highlighted the implications of the new law.
“The subsequent amendment to the Transgender Persons (Protection of Rights) Act, 2019 … marks a departure from [the] constitutional baseline,” Justice Monga wrote. “It is now proposed that legal recognition of gender identity shall be conditioned upon certification, scrutiny, or other forms of administrative endorsement. What was recognized by the Supreme Court as an inviolable aspect of personhood now risks being reduced to a contingent, State-mediated entitlement.”
He urged that the “State must be mindful that statutory developments cannot be implemented in a manner that dilutes constitutional guarantees”.
During a protest against the Transgender Persons Amendment Bill at Azad Maidan, Mumbai, on March 25, 2026. Photo: Akash Patil 
Members of Humsafar trust for the LGBTQIA+ community celebrate in Mumbai after the historic verdict on Section 377 on September 6, 2018. Photo: Nirmal Harindran
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