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Supreme Court refuses interim stay on Transgender Act amendment, asks if self-identification can’t be misused
Senior advocate A M Singhvi said the amendment contradicts a 2014 judgment of the Supreme Court that recognised the right to self-identification of gender as an aspect of dignity.
The Supreme Court issued notices to the Centre and states on a plea challenging the constitutional validity of the 2026 amendment. (File Photo)
The Supreme Court on Monday refused to order an interim stay on the recent amendment to the Transgender Persons (Protection of Rights) Act, which did away with self-identification of gender.
Issuing notices to the Centre and states on a plea challenging the constitutional validity of the 2026 amendment, a bench of Chief Justice of India Surya Kant and Justice Joymalya Bagchi said it would place the matter before a three-judge bench.
The bench said there is “no question of grant of any interim order..no question of interim stay”.
The amendment does away with self-identification of gender and
mandates that a certificate of transgender identity will be issued by a district magistrate only after examining the recommendation of a designated medical board, headed by a chief medical officer.
Opposing this, senior advocate A M Singhvi said the amendment was contrary to the Supreme Court’s 2014 judgment in National Legal Services Authority (NALSA) vs Union of India, which recognised the right to self-identification of gender as an aspect of dignity.
“This Amendment prohibits this category of self-recognition. So, if I go to a hospital and say I recognise myself as and carry this operation (gender affirming surgery)…. the hospital (may say) no…this Act prohibits it,” he submitted.
Justice Bagchi questioned the submission. “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.”
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The CJI also wondered if self-identification would not be misused to avail of welfare measures. “In this country of 140 crore people, some can masquerade this facility for the grant of reservations also, isn’t it?” CJI Kant asked.
Ruling out any such possibility, Singhvi said there is no reservation for transgender persons. He added that the possibility of a minuscule fraction misusing a law can’t be a reason for suspending the rights of the majority.
Responding to arguments that the new law criminalises therapy, Solicitor-General Tushar Mehta said it attracts penal consequences only if someone is forced to undergo a sex change. He said there are instances of forced castration.
An intervenor informed the bench that the amended Act has not been notified and that the petitions challenging it are therefore premature.
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