WDI Petition Questions Gender Certificate Provisions and Seeks Review of NALSA Judgment

A petition filed in the Supreme Court has challenged provisions of the Transgender Persons (Protection of Rights) Act, 2019, arguing that the legal recognition of a gender different from the one assigned at birth could affect protections and benefits specifically intended for women.

The petition has been filed by the India chapter of Women’s Declaration International (WDI), a UK-based organisation advocating for the protection of sex-based rights of women and girls. It challenges Section 7 of the 2019 Act and Rule 7 of the Transgender Persons Rules, which deal with the issuance of revised gender identity certificates.

The petition has also sought consideration of the Supreme Court’s landmark 2014 judgment in NALSA v. Union of India, which recognised the right of transgender persons to determine their own gender identity.

In the NALSA judgment, the Supreme Court distinguished biological sex from gender identity, recognising that gender involves an individual's psychological, emotional and personal understanding of their identity. The court held that gender identity could not be determined solely through biological characteristics and placed the right within the constitutional guarantees of dignity and personal liberty under Article 21.

The judgment also clarified that transgender persons could not be forced to undergo sex reassignment surgery, sterilisation or hormonal treatment for legal recognition of their gender identity.

NALSA Judgment, Constitutional Rights and Concerns Raised by Legal Experts

The petition has triggered a debate over the relationship between gender identity, biological sex and legal protections available to women. It has also raised questions about the applicability of gender-based benefits in areas such as sports, prisons, hostels and other public institutions.

Senior Advocate Jayna Kothari criticised the petition, arguing that it seeks to reopen an issue already addressed by the Supreme Court in the NALSA judgment. She maintained that gender identity is distinct from biological sex and that transgender women should not be excluded from legal protections merely because they have not undergone medical procedures.

Kothari also highlighted the discrimination transgender persons continue to face in accessing education, employment and public services.

Swarupa Deb, faculty member at the National Law School of India University, Bengaluru, expressed concern that arguments portraying transgender persons as a potential risk could undermine their equal rights and social acceptance.

She warned that the controversy could influence public attitudes even before the court reaches a decision, particularly affecting transgender persons from economically weaker and marginalised communities.

The case raises important constitutional questions concerning equality, dignity, personal liberty and the scope of legal recognition of gender identity in India.