Quick answer
No. In National Legal Services Authority (NALSA) v. Union of India (15 April 2014), the Supreme Court held that hijras and eunuchs must be treated as a "third gender". It also held that transgender persons have the right to decide their self-identified gender, and that governments must legally recognise that identity as male, female or third gender. The Court based these rights on Articles 14, 15, 16, 19(1)(a) and 21. It said that insisting on sex reassignment surgery (SRS) before recognising a person's gender is "immoral and illegal".
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. (two judges). NALSA filed the petition under Article 32 because the law recognised only "male" and "female", which left transgender persons without legal recognition.
Constitutional basis
- Article 14: equality before the law protects every "person", including transgender persons.
- Articles 15 and 16: "sex" includes gender identity, so discrimination on the ground of gender identity is prohibited.
- Article 19(1)(a): expressing one's gender identity through dress, words and behaviour is part of freedom of expression.
- Article 21: legal recognition of gender identity is part of dignity, personal autonomy and self-determination.
Key declarations and directions
- Hijras and eunuchs are to be treated as "third gender" for the purpose of rights under Part III and laws made by Parliament and State Legislatures.
- Transgender persons may decide their self-identified gender, and the Centre and States must grant legal recognition as male, female or third gender.
- They are to be treated as socially and educationally backward classes for reservation in educational admissions and public appointments.
- Separate HIV sero-surveillance centres, proper medical care, separate public toilets, social welfare schemes and public awareness measures are to be provided.
The Court noted that "transgender" is sometimes used as an umbrella term covering gay, lesbian and bisexual persons. It said that wider meaning was not before it.
Gender identity and sexual orientation
The judgment treats these as different concepts. Gender identity refers to how a person experiences their own gender. Sexual orientation refers to whom a person is attracted to.
| Point | Gender identity | Sexual orientation |
|---|---|---|
| Question it answers | Who am I? | Whom am I attracted to? |
| Issue in NALSA | Yes, the central issue | No, expressly left out |
Example
Renu, a hijra, applies for a government job. The form offers only "male" and "female", and the office refuses to accept "third gender". Under NALSA, the refusal violates Articles 14, 16 and 21. Renu is entitled to recognition of her self-identified gender, and no one may insist on surgery as a condition for that recognition.
Current law: the 2019 Act and the 2026 amendment
Parliament later enacted the Transgender Persons (Protection of Rights) Act, 2019. As originally enacted, Section 4(1) gave a transgender person the right to be recognised as such. Section 4(2) gave a right to "self-perceived gender identity".
The Transgender Persons (Protection of Rights) Amendment Act, 2026 (No. 3 of 2026, assented to on 30 March 2026) changed this. It omits Section 4(2) and substitutes a narrower definition of "transgender person" in Section 2(k). The new definition covers socio-cultural identities such as kinner, hijra, aravani and jogta, eunuchs, persons with specified intersex or congenital variations, and persons compelled to assume a transgender identity. Its proviso excludes persons with different sexual orientations and "self-perceived sexual identities". The District Magistrate now issues the certificate of identity under Section 6 after examining the recommendation of an "authority", a medical board headed by a Chief Medical Officer or Deputy Chief Medical Officer. Under Section 1(2), the amending Act comes into force on the date the Central Government notifies in the Official Gazette. The statutory test is now narrower than the self-identification principle that NALSA drew from the Constitution. For the wider topic, see Gender and Law: Complete Notes.
Exam point
NALSA (2014): third gender recognised; gender identity protected under Articles 14, 15, 16, 19(1)(a) and 21; SRS cannot be a condition for legal recognition. The 2026 amendment omitted the statutory right to self-perceived gender identity in Section 4(2) of the 2019 Act.
Sources and further reading
- National Legal Services Authority v. Union of India (15 April 2014), judgment text, Indian Kanoon
- The Transgender Persons (Protection of Rights) Amendment Act, 2026 (No. 3 of 2026), Gazette of India
- Hina Haneefa v. State of Kerala (Kerala High Court, 15 March 2021), discussing Section 4 of the 2019 Act, Indian Kanoon
