New Delhi, May 4 Raising concern over the possibility of persons masquerading as transgender to avail government schemes, the Supreme Court on Monday sought responses from the Centre and others on the pleas challenging the validity of the Transgender Persons (Protection of Rights) Amendment Act, 2026.
A bench of Chief Justice Surya Kant and Justice Joymalya Bagchi flagged the issue about allowing self-identification, and observed that people could misuse it for availing the welfare measures earmarked for the transgenders.
"Does it not pose a danger that in a country of over 140 crore population, there may be some persons who can masquerade as transgenders for getting some reservation or privileges which are actually meant for them," the bench observed, while hearing a batch of petitions.
The amended law does away with the self-identification of gender by those who claimed to be transgenders and it provides that a certificate of identity has to be issued by the district magistrate after examining the recommendation of a medical board.
Senior advocate Abhishek Singhvi, appearing for some of the petitioners, said no reservation was provided for transgender persons.
He said the 2026 Act takes away the right to dignity and bodily autonomy guaranteed under Article 21 of the Constitution.
Article 21 of the Constitution deals with protection of life and personal liberty.
During the hearing, Solicitor General Tushar Mehta said if one forces somebody to undergo sex change, it is criminalised.
He said the intent of the Act was to ensure that transgender persons get the benefits meant for them.
"If one forces somebody to undergo (sex change) surgery, the Act criminalises it. There are instances of forced castration," Mehta argued.
The bench agreed to hear the pleas and issued notice to the Centre, all states and Union Territories seeking their responses.
It said the matter would be placed before a three-judge bench, which would be constituted by the CJI.
"There is no question of granting any interim order," the bench said, while posting the matter for hearing after four weeks.
During the hearing, one of the caveators told the bench that the Act has not come into force and hence, the petitions were premature.
On March 25, Parliament passed a bill to amend the law on the protection and rights of transgender persons, which excludes social orientations from the ambit of the statute. It received the President's assent on March 30.
The Act provides for graded punishment based on the gravity of harm inflicted on such people.
The petitioners have referred to the apex court's 2014 judgement which had upheld the transgender persons' right to decide their self-identified gender.
The verdict had directed the Centre and the states to grant legal recognition of their gender identity such as male, female or as third gender.
One of the pleas filed in the apex court has sought a declaration that the right to self-identification of gender, as recognised by the top court in the 2014 verdict, is a fundamental right under Article 21 that "no legislation may make conditional upon bureaucratic certification, medical procedure, surgical intervention, or any clinical gateway of the State's choosing".
It has also sought a direction that all certificates of identity lawfully obtained by transgender persons under the Transgender Persons (Protection of Rights) Act, 2019, prior to the commencement of the amendment Act, shall remain valid and shall not be invalidated, revoked, or rendered ineffective.
The plea said that rights and entitlements flowing from those certificates should continue in full force.
