The Transgender Amendment 2026 and the Question of Vested Rights

Source: The Hindu 

Introduction 

The Supreme Court has taken up a batch of petitions challenging the 2026 amendment to the Transgender Persons (Protection of Rights) Act, which alters the process for obtaining transgender identity cards and removes the earlier framework of self-assessment. A bench comprising Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice V Mohana orally indicated that rights already conferred on transgender persons under the unamended law cannot be disturbed by a prospective amendment, even as it declined to pass a formal interim order at this stage. 

What did the Supreme Court Observe? 

• The bench orally noted that the 2026 amendment operates prospectively and does not repeal or annul rights that had already accrued to transgender persons under the earlier regime.  
• Justice Bagchi observed that if the legislature intended the amendment to override previously conferred rights, it would have given the amendment retrospective or repealing effect, which it did not do.  
• He added that even where a transgender card is found to be fraudulently obtained, cancellation would require prior notice to the person concerned rather than automatic withdrawal. 

Why was the Amendment Challenged? 

• Senior Advocate Jayna Kothari, appearing for one of the petitioners, sought an order of status quo for persons who already hold transgender cards, pointing out that the national portal for fresh applications was currently non-functional. 
• Senior Advocate Arundhati Katju argued that the amendment creates uncertainty for individuals who have already updated identity documents such as passports and Aadhaar cards on the basis of their earlier-recognised status, potentially leaving them in limbo while travelling internationally.  
• Petitioners also submitted that doctors have grown hesitant to continue hormone replacement therapy for patients since the amendment came into force, and that several High Courts have already granted interim protection in individual cases. 

What did the Government Argue? 

• Solicitor General Tushar Mehta defended the amendment's removal of the self-assessment mechanism, citing practical difficulties such as disputes over succession law where a person's legal gender is unsettled.  
• He resisted the urgency of the plea, contending that the matter did not involve an immediate necessity comparable to essential entitlements, and urged the Court not to issue any order based solely on oral submissions without first examining the issues in detail. 

What did the Court Direct? 

• The bench declined to pass a general or blanket order at this stage, stating that individual instances of hardship could instead be brought before it through specific applications, and that relief would be granted on a fact-based, case-by-case basis.  
• The Solicitor General was granted time to respond on behalf of the Union.  
• The matter has been listed for further hearing on August 17, 2026.  
• The Court had earlier issued notice to the Union in May 2026 and, upon the Centre's request to transfer related petitions pending before various High Courts to itself, had also stayed the High Court proceedings. 

Conclusion 

The Supreme Court's oral observations signal that any curtailment of rights already vested under the Transgender Persons (Protection of Rights) Act would require prospective, notice-based action rather than automatic withdrawal through the 2026 amendment. While the Court has avoided a sweeping interim order, its remarks on the prospective nature of the amendment set the tone for the substantive hearing scheduled for August 17, where the Union's formal response on the validity and effect of the amendment is awaited.