Supreme Court tells Centre: New law cannot take away existing transgender rights
The Supreme Court on Monday orally told the Union government that a new law, seen as diluting the transgender community's right to self-identification, cannot retrospectively invalidate transgender identity cards issued under the previous legislation.
A three-judge Bench, headed by Chief Justice of India Surya Kant, was hearing a petition filed by transgender activists and community members challenging the 2026 Amendment Act to the Transgender Persons (Protection of Rights) Act, 2019. The petitioners argued that the 2026 Act removes the right to self-perceived gender identity and gives the state unfettered authority to determine gender identity.
During the hearing, a lawyer who identified as a transgender woman told the Bench that the identity card is central to her basic identity. "Every day I struggle. It is a struggle to even get a house to live in," she said. Justice Joymalya Bagchi, also on the Bench, assured her: "We assure you, we are concerned about your rights."
The petitioners submitted that the 2026 Act contradicts the Supreme Court's 2014 NALSA judgment, which upheld the right of transgender persons to self-determine their gender identity and protected them from discrimination and social stigma. That judgment led to the enactment of the 2019 Act, which largely embodied the self-identification principle. They argued that Section 3 of the 2026 Act has omitted this right "by the stroke of a legislative pen".
Justice Bagchi told Solicitor General Tushar Mehta, representing the Centre, that "even if there is a change in legislation, the rights conferred or accrued must remain the same." He also pointed out that if the legislative intent had been to do away with transgender cards, there would have been a clarificatory amendment, which is absent in the 2026 statute.
Mr. Mehta sought more time to respond to the petition, raising concerns that a lack of clarity about gender may lead to problems in succession and inheritance. He questioned the petitioners' insistence on an interim direction to retain the validity of the transgender card, remarking: "This is not like a ration card, where you do not get food."
The petition, filed by activists including Laxminarayan Tripathi, who was the first transgender person from the Asia-Pacific region to address the United Nations General Assembly, asks whether the state, through legislation, may define who a person is and substitute its own biological or sociomedical classification for the lived, autonomous and self-perceived identity of a human being.
The Supreme Court's oral observation, while not a final judgment, signals that rights already granted cannot be silently erased by a new law. The court is expected to hear the matter further after the government files its response.
