Quick answer
Under the Constitution, no. In National Legal Services Authority (NALSA) v. Union of India (15 April 2014), the Supreme Court upheld the right of transgender persons to decide their self-identified gender and held that "any insistence for SRS (sex reassignment surgery) for declaring one's gender is immoral and illegal". Parliament has since changed the statutory scheme: the Transgender Persons (Protection of Rights) Amendment Act, 2026 omits the statutory right to self-perceived gender identity and requires the District Magistrate to examine a medical board's recommendation before issuing a certificate of identity. It takes effect from the date the Central Government notifies.
The case
National Legal Services Authority v. Union of India, Writ Petition (Civil) No. 400 of 2012 with Writ Petition (Civil) No. 604 of 2013, Supreme Court of India, 15 April 2014. Bench: K.S. Radhakrishnan and A.K. Sikri, JJ. The Court declared that hijras and eunuchs be treated as "third gender", upheld the right of transgender persons to decide their self-identified gender, and directed the Centre and States to grant legal recognition of gender identity as male, female or third gender.
What NALSA protects
- Equality and non-discrimination: Article 14 protects transgender persons as "persons", and "sex" in Articles 15 and 16 includes gender identity, so discrimination on that ground is prohibited.
- Expression: under Article 19(1)(a), self-identified gender can be expressed through dress, words, action or behaviour, subject to Article 19(2).
- Dignity and autonomy: Article 21 protects the personal choice of gender identity as part of a life with dignity.
- No surgery requirement: legal recognition of gender cannot depend on sex reassignment surgery.
- Welfare: governments were directed to provide medical care, separate public toilets, social welfare schemes and public awareness measures.
The 2014 judgment and the 2026 amendment compared
| Point | NALSA (2014) | 2019 Act as amended in 2026 |
|---|---|---|
| Basis of identity | Self-identified gender | Section 4(2), the statutory right to self-perceived gender identity, is omitted |
| Who is a "transgender person" | Self-identification, with hijras and eunuchs as third gender | Narrower Section 2(k): socio-cultural identities such as kinner, hijra, aravani and jogta, eunuchs, persons with specified intersex or congenital variations, and persons forced to assume a transgender identity; the proviso excludes persons with different sexual orientations and self-perceived sexual identities |
| Certificate of identity | Sex reassignment surgery cannot be insisted upon | District Magistrate issues it after examining the recommendation of a medical board headed by a Chief or Deputy Chief Medical Officer |
The Amendment Act (No. 3 of 2026) received the President's assent on 30 March 2026. Under Section 1(2) it comes into force on the date the Central Government notifies.
Example
Renu is a transgender woman studying at a government college. A college official refuses to accept her identity unless she produces proof of surgery. Under NALSA, the State cannot make surgery a condition for respecting her gender identity, and she keeps her rights to equality and dignity. If Renu applies for a certificate of identity under the 2019 Act after the amendment is brought into force, however, she must follow the amended statutory procedure, which involves the medical board's recommendation. Students should keep the constitutional principle and the statutory certificate process separate.
Current-law note
NALSA has not been overruled; it remains the leading constitutional decision on gender identity. The 2026 amendment changes the statutory scheme, and how far it can be reconciled with NALSA is a question for the courts. For more on the case, see NALSA v. Union of India.
Exam point
NALSA (2014): self-identified gender is constitutionally protected, and insisting on SRS for legal recognition is "immoral and illegal". The 2026 amendment omitted Section 4(2) of the 2019 Act and added medical board review for certificates.
