New Delhi: Nearly a decade after the Supreme Court’s landmark NALSA judgment and five years after Parliament enacted the Transgender Persons (Protection of Rights) Act, 2019, transgenders in India are still forced to knock on court doors for rights as basic as identification documents, access to welfare schemes, and protection from police abuse.
The National Legal Services Authority (NALSA) judgment affirmed the right of transgender persons to self-identify as male, female or third gender in 2014. Parliament enacted the Transgender Persons (Protection of Rights) Act, 2019 to operationalise this recognition through welfare measures, reservations, protection against discrimination and simplified identity documentation processes.
From Andhra Pradesh to Tamil Nadu, Kerala to Uttar Pradesh, the judiciary has repeatedly stepped in—often in individual petitions—to compel state authorities to carry out their fundamental duties, which are already mandated by the existing law.
These interventions, spread across high courts and the Supreme Court in recent months, underscore a widening gap: While courts are frequently accused of encroaching into legislative or executive domains, the reality reveals the opposite.
An eye on the recent trends show that courts are filling administrative vacuums because governments have failed to implement their own policies on transgender rights.
Implementation at the grassroots remains the State’s constitutional obligation, and courts are stepping in only when this obligation is ignored.
In view of the situation, the Supreme Court, in its Jane Kaushik verdict in October, constituted an expert committee under former Justice Asha Menon to draft a model Equal Opportunity Policy, identify gaps in the Act and propose measures for inclusive healthcare, protection and access to rights. Under Article 142, the court directed every state and UT to establish Transgender Welfare Boards and Protection Cells within three months.
Noting failures across states to even appoint nodal officers for issuing transgender identity cards, the court held that transgender persons were being “forced to litigate for basic entitlements” because governments had “repeatedly failed to operationalise statutory rights.”
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Petition by trans teacher exposes policy lapses
Responding to a teacher’s petition last week—where the petitioner pointed out that despite notifying 16,000 posts in the Mega DSC 2025 recruitment, not a single post was reserved for transgender persons, in violation of the NALSA judgment—the Andhra Pradesh High Court expressed concern that many states have still not implemented reservations in jobs or education.
Citing NALSA and the Transgender Persons (Protection of Rights) Act, 2019, the Andhra Pradesh High Court recalled that high courts in Telangana, Tamil Nadu, Karnataka and Kerala had already directed their respective governments to provide reservations, and those directions had been implemented.
“Transgender persons are not only socially and economically backward, but also a community completely neglected by society. States have a constitutional and ethical obligation to adopt special measures for their welfare,” the court observed.
It stressed that “as the origin of the problems of transgender persons in India lies in stigma and discrimination they face in family and society, resulting in their exclusion from the socio-economic cultural-political spectrum, there is a dire need to mainstream them and (for) the adoption of an inclusive approach in all spheres of life including affirmative action by the State in public employment.”
The court held that affirmative action was essential and that the government must initiate reservations in public employment without delay. It further remarked that the “State cannot cite administrative delay as justification for denying a marginalised community the rights guaranteed under the Constitution,” directing immediate notification of the State Welfare Board for Transgender Persons and time-bound implementation of welfare measures.
The bench noted that the burden had “unnecessarily shifted to the court” because the government was “failing to act on statutory mandates emanating from the Transgender Persons Act.”
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A landmark decision in Shabana’s case
In another case from July, the same High Court made history when it upheld the right of a trans woman, Shabana, to seek protection under Section 498A of the IPC. After she filed a police complaint alleging abuse and threats from her husband and in-laws, her husband challenged the FIR arguing that Shabana was “not legally a woman” because she could not conceive children.
Justice Pratapa rejected this argument unequivocally, calling the definition of womanhood based solely on biological reproduction “legally unsustainable” and contrary to constitutional guarantees. Citing NALSA, the court reaffirmed that “a trans woman, born male and later transitioning to female, is legally entitled to recognition as a woman,” adding that “denying such protection by questioning their womanhood amounts to discrimination.”
Madras HC: Why Are trans persons excluded from adoption?
Earlier this month, the Madras High Court directed the Union Government to explain why transgender persons were excluded from eligibility for adoption under the Central Adoption Resource Authority (CARA) Guidelines framed pursuant to the Juvenile Justice (Care and Protection of Children) Act, 2015—especially given the enactment of the Transgender Persons (Protection of Rights) Act, 2019.
A Bench of Chief Justice Manindra Mohan Shrivastava and Justice G. Arul Murugan was hearing a writ petition challenging provisions of the Hindu Adoption and Maintenance Act, 1956, and the CARA Guidelines as discriminatory and contrary to the spirit of the 2019 Act. The court demanded clarity on why inclusion mandated in law had not been reflected in practice.
Kerala HC: Access to NCC, hostels & identity documents
The Kerala High Court delivered a series of important directions over the past year, including two in the past month.
Earlier this month, while dismissing the plea of a 22-year-old transgender petitioner seeking enrolment in the National Cadet Corps (NCC), the court held that transgender persons cannot be enrolled under the current legal framework. Justice N. Nagaresh stated, “The National Cadet Corps Act, 1948 as it stands now, does not contemplate an NCC Division for Transgenders.” Yet, the court added: “Ideally, students belonging to transgender should also get equal opportunity to get NCC training,” signalling the need for legislative updates.
In July, the court directed a university to admit a transgender woman who had been denied hostel accommodation despite fulfilling all requirements. “Hostel access is not a matter of charity,” the court held, describing it as essential for an inclusive educational environment and emphasising that dignity must guide administrative decisions.
In a separate case, the Kerala High Court intervened after the Kozhikode Municipal Corporation refused to update gender identity on official records, citing rigid adherence to gendered columns under the Kerala Registration of Births and Deaths Rules, 1999. Employing “social justice adjudication”, the court held that outdated rules could not override constitutional rights, including the right to self-perceived gender identity affirmed in NALSA. The court’s message was clear: Bureaucratic rigidity cannot be used to deny fundamental rights.
Allahabad HC: Correcting identity in education records
In the first week of November, the Allahabad High Court criticised the Uttar Pradesh government for failing to amend the educational records of a transgender man seeking correction of his name and gender. Despite repeated applications, authorities refused citing “lack of clarity” in rules.
The court directed the education department to amend the records and issue fresh marksheets and certificates. Justice Shamshery held that the authorities committed a “legal error” by ignoring the Transgender Persons Act and its Rules, clarifying that this Act overrides ordinary administrative procedures. Recognising gender identity in official documents, the court reaffirmed, is a statutory and constitutional right, not a concession.
Supreme Court: ‘Transgender Act reduced to dead letters’
The Supreme Court has also stepped in decisively. In the landmark case of Jane Kaushik v. Union of India, a trained trans woman teacher who faced discrimination and termination at two private schools finally secured justice. On 17 October, the top court sharply criticised the Centre and states for “brutishly” reducing the Transgender Persons (Protection of Rights) Act, 2019 and its Rules to “dead letters” and exhibiting “a grossly apathetic attitude towards the transgender community”.
The court said the absence of grievance redressal mechanisms, welfare boards and complaint officers had rendered legal protections “largely symbolic”. Awarding Jane Kaushik compensation of Rs 2 lakh—Rs 50,000 each from the Centre, Uttar Pradesh, Gujarat and the Gujarat private school—the court held both government and private actors accountable.
A pattern of executive inertia
What emerges from these judicial interventions is a clear pattern: Despite progressive statutory and constitutional protections, enforcement remains patchy and inconsistent. Welfare boards are missing; medical guidelines are ignored; police continue to harass; documentation remains a puzzling process.
Instead of comprehensive administrative reform, governments often act only when directed by courts—typically after petitions filed by individuals who cannot wait indefinitely for basic recognition.
While debates about judicial overreach continue, these developments present the reverse image: Courts are enforcing rights, not creating them; they are stepping in only when the State has failed to step in.
Nine years after NALSA and five years after the Trans Act, welfare schemes and identity rights hinge on judicial intervention and for transgender Indians, the courtroom remains the only path to dignity, identity and equality before the law.
Supreme Court advocate Raghavi Shukla says this has always been a pattern.
“In case of the Trans Act 2019, we saw how it came after the NALSA judgment and realised how law watered down a bundle of rights. Expansive rights that were given by the judgment, the Act, sort of restricted the judgment.”
Shukla, a transgender lawyer herself, noted how the implementation of the existing laws has never happened in true letter and spirit to the law itself. “We see anti-discrimination and equal opportunity to be at the core of the Act but despite that we did not see it happening.”
Shukla also pointed out that the Trans Act was not sought to be aligned with the other existing Acts which talk about the needs and issues that concern trans people. For example, the Medical Termination of Pregnancy Act, in particular, the language in that Act itself is restricted to cis-women, she says, and the government never made an effort to define it further or put out a circular clarifying it included anyone who has the possibility of bearing a child.
So, the Court had to interpret it in a manner to include anyone who could bear a child (transman, intersex person).
“The alignment has always been missing”, she says, something she attributes to trans-queer people never being a part of the consultation. Nor was an attempt ever made to factor in all the possibilities, which is also why, she says, the Courts through judgments are now ensuring that trans people get the rights available to everyone else.
“This clearly shows that the laws that have come in lack intent, willingness and the heart to address these issues; which is why so many conflicts take place.” She attributes the lack of will to the fact that transgender people are not a large votebank. “Sometimes, the laws are mere tokenism, to silence a certain group of people.”
About the possibility of judicial overreach into the domain of the executive, she sees this as courts filling the gap left by the State, and making sure the objective of the law is fulfilled.
The gap between the judgement/law and the ground level implementation, she says, is common to most laws in India, mainly because people are not at the centre of the law-making exercise. “People are missing.” About NALSA in particular, it was never an endeavour to incorporate trans people into the system or have them lead the change, she said.
“First you get a law then you’re always rushing to court to get it interpreted. There’s never an end to the suffering and the whole bureaucratic approach to things.”
One way to change this, she added, was to have queer-trans people at every level and also have accountability dropped at someone’s doorstep. “Which is also why courts need to intervene again and demand answers from the executive 10 years after the judgment and 6 years after the Act. Otherwise, this whole thing will continue with impunity.”
(Edited by Viny Mishra)