Kerala HC allows two transgender persons to continue hormone therapy amid petitions against new law

The Kerala High Court on Friday allowed two transgender persons to continue hormone replacement therapy after they alleged that hospitals had halted their treatment after the 2026 Transgender Persons Protection of Rights Amendment Bill was passed, Bar and Bench reported.

The bill was cleared by Parliament on March 25 after a motion to refer the proposed legislation to a select parliamentary committee was rejected. The legislation amends the 2019 Transgender Persons Protection of Rights Act by redefining who qualifies as a transgender person.

It removes transgender persons’ right to a self-perceived gender identity and limits the scope of the law to those with certain biological or physiological characteristics, intersex variations, or specific socio-cultural identities such as kinner, hijra, aravani and jogta.

In the High Court on Friday, Justice Bechu Kurian Thomas was hearing two petitions against the amended Act. After hearing the submissions, he issued notice on the petitions, Live Law reported.

Challenging several provisions of the legislation, the two petitions argued that it contradicts the principles laid down by the Supreme Court in the 2014 National Legal Services Authority v Union of India case, or the NALSA case, by removing self-identification and adding mandatory medical certification.

This judgement had formally created the “third gender” category for transgender persons that recognised them as a socially and economically backward class.

Both petitioners also noted that the private hospitals where they had been receiving hormone replacement therapy stopped treating them after the amendment was notified, Bar and Bench reported.

During the proceedings on Friday, the judge said that if such treatment is brought to an abrupt stop for a person, there could be very “absurd results” for them. He added that this “should have been taken care of by the statute”.

Additional Solicitor General P Sreekumar, representing the Union government, also claimed that the subject of self-identification was a “huge issue” in several countries. He alleged that in the United States, many had declared themselves to be contrary to their biological sex.

In reply, Thomas added: “The intention of the legislature might be (to prevent aping) western countries where kids might say they are a cat and no one can question it. That might be the intention of the legislature – to prevent it.”

At the previous hearing, the court had asked Sreekumar to get instructions about whether hormone replacement therapy and other gender affirming medical care would be halted due to the enactment of the amendment.

On Friday, the additional solicitor general said that such grievances related to medical urgencies would not arise.

Advocate Arundhati Katju, for the petitioners, also noted that the NALSA case and the previous legislation recognised the right to self-identification of one’s perceived gender identity, Bar and Bench reported.

She also said that there was a requirement for medical institutions to report on medical interventions for gender transitions. “There is a chilling effect on the doctors who were giving non-surgical interventions,” Live Law quoted Katju as saying.

Sreekumar told the court that the amendment only excludes the self declaration.

The court said the statute was not being stayed but proceeded to grant interim relief to the petitioners, Bar and Bench reported.

Provisions of the amendment

The new legislation passed on March 25 will make medical evaluation and certification mandatory for legal gender recognition. It underlines that the authority to permit such transitions is vested in medical professionals operating under a medical board.

The bill also introduces graded punishments based on the severity of offences, increasing the maximum penalty to up to 14 years from what was two years under the 2019 law.

It further specifies that those who have been “compelled” to assume, adopt or outwardly present a transgender identity under “undue influence” will not be covered under the law.

It emphasises that the law is intended to protect a defined class of persons facing “extreme and oppressive” discrimination and not all “persons with various gender identities, self-perceived sex/gender identities or gender fluidities”.

Also read:

• Why right to self-determination is essential to improving employment and education among transpeople

• Changes to trans rights act will worsen access to healthcare for vulnerable individuals