How India's Higher Judiciary is Steadily Advancing Transgender Rights Amid Global Anti-trans Backlash

This story by Kanav Narayan Sahgal originally appeared on Global Voices on November 2, 2025.

Today, supposed good-faith debates around gender theory are too often recast as a moral panic around gender, specifically, around what many on the right wing pejoratively call “gender ideology”. To be clear, from the very outset, the non-duality of gender is not an ideology; it is both theory and fact.

For instance, one of US President Donald Trump’s first actions after taking office for his second presidential term was to eliminate the word “transgender” from the official lexicon of the United States federal government. This came amidst his administration’s broader efforts to scrap federal DEI (Diversity, Equity, and Inclusion) policies and dismantle USAID projects around the world, which have had disastrous repercussions globally. That same year, the United Kingdom Supreme Court handed down a disappointing ruling that held that under the UK’s Equality Act (2010) — the primary anti-discrimination legislation in the UK — transgender women could be excluded from single-sex spaces and services. Across Europe and Central Asia, too, transgender people are witnessing a sharp erosion of their rights and protections under the guise of “protecting traditional values”.

See Also: SC Panel Pushes for Equal Opportunity Policy for Transgender Persons; Relief Granted to Transwoman Teacher

Thus, at a time when global backlash against transgender rights is surging, the Supreme Court of India is charting a totally different path, moving towards the  “full realisation” of equality for transgender people under the law.

A breath of fresh air

The Supreme Court of India’s recent jurisprudence on transgender rights is a breath of fresh air in an otherwise polluted, anti-transgender global climate.

More than 10 years ago, the Supreme Court of India, in NALSA v. Union of India (commonly known as the NALSA judgment), recognised the “third gender” as not only a legally distinct gender category under the law, but also endowed them with the same fundamental rights as everyone else. Then in 2019, the Indian government passed the much-contested Transgender Persons (Protection of Rights) Act, 2019 and the accompanying Rules, 2020, to codify the principles laid down in the NALSA judgment.

Over the years, however, the on-the-ground impact of these progressive developments has remained limited, and transgender people continue to face multiple barriers in exercising their rights — including, and especially, in obtaining their official gender identification documents. Yet, amidst this administrative ambiguity at home and rising anti-transgender sentiment globally, India’s constitutional courts have continued to (somewhat surprisingly) stand by the transgender community through progressive and expansive interpretations of the law.

Recent progressive developments

Most recently, on October 20, 2025, in Jane Kaushik v. Union of India, the Supreme Court of India handed down an important judgment that directed the formation of a high-level advisory committee tasked with drafting a practical policy framework to strengthen transgender rights and ensure the effective implementation of the beneficial provisions of the Transgender Persons (Protection of Rights) Act, 2019.

Earlier this year, in June 2025, the Andhra Pradesh High Court issued a landmark judgment clarifying that transgender women were to be legally recognised as women under Indian law. This ruling further affirmed that transgender women in heterosexual marriages were entitled to the same legal protections as cisgender women under Section 498A of the Indian Penal Code (which criminalises cruelty, harassment, and domestic abuse by a husband or his relatives).

It is worth noting that, unlike other jurisdictions that do not explicitly recognise the third gender as a distinct gender category, India’s constitutional position also means that transgender women are legally recognised in their own right, thereby ensuring that the advancement of their interests cannot be seen as an encroachment on or undermining of the rights of their female cisgender counterparts.

A case in point is Shanavi Ponnusamy v. Ministry of Civil Aviation (2022), where a transgender woman seeking employment as a cabin crew member at Air India was forced to apply under the “female” category because no separate option existed for transgender applicants. Despite clearing all medical tests, she was ultimately denied employment. When she challenged the decision before the Supreme Court, the Court ruled in her favour. This was therefore not a case of a transgender woman attempting to unfairly “encroach upon women’s spaces”, as some right-wing activists might suggest, but rather an instance where the airline simply failed to provide a legally required, designated category or space for a transgender individual.

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Several other cases also echo this progressive judicial trend, including the widely reported 2023 same-sex marriage case. While the Supreme Court declined to grant legal recognition to same-sex marriages,  it nevertheless made an exception for transgender people in heterosexual marriages and extended legal recognition to them. This marked a significant expansion from an earlier, narrower interpretation of the law, which recognised only a limited subset of such relationships under Hindu personal law alone.

What next?

While these cases collectively signal the higher judiciary’s proactive approach toward expanding the scope of transgender rights in India, there is still room for improvement. For instance, transgender persons in non-heterosexual relationships cannot yet have their marriages legally recognised. Similarly, various petitions challenging certain provisions of the Transgender Persons (Protection of Rights) Act, 2019, were filed before the Supreme Court years ago but are still awaiting adjudication.

That being said, these judicial developments represent a promising trajectory, particularly when viewed in the troubling and volatile global context in which they are embedded. Therefore, there is reason to remain hopeful about India’s higher judiciary and its inclination to expand, rather than restrict, the scope of transgender rights under the law. This is a trend that activists can only hope continues in the years, if not decades, to come.

[VP]

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