“To deny a trans woman the status of a ‘woman’ for the purpose of legal protection … is to perpetuate discrimination and to violate … the Constitution.” On 16 June, the Andhra Pradesh High Court (HC) in Viswanathan Krishna Murthy v Andhra Pradesh affirmed that trans women are women. The progressive decision bucks a trend of backsliding on queer rights, but it still leaves the requirement of surgery unclear for the scope of self-determination of gender.

The case concerned a criminal complaint filed by a trans woman against her husband and parents-in-law for cruelty and dowry demands. In an application to quash the complaint at the HC, the accused argued that since these offences only protect a victim who is a ‘woman’ or a ‘bride’, a trans woman cannot file a complaint under them. They relied on the 2023 Supreme Court decision in Supriyo v Union of India that refused legal recognition of same-sex marriages to argue that a (trans) woman who cannot bear children is not a ‘woman’ in family law. The HC emphatically rejected the argument.

Situating Viswanathan within Trans Legal Developments

In Supriyo, the majority opinion found that recognising same-sex marriage was the legislature’s domain, not the court’s. While that rationale has been criticised, Supriyo supported the right to self-determination. The judges unanimously confirmed that trans men and women should be treated as their acquired gender for the purpose of marriage. So, trans women and men in heterosexual marriages have no obstacles to the law recognising their gender.

The HC decision comes as a relief to LGBT activists and lawyers who were apprehensive Supriyo marked the beginning of a conservative judicial approach to queer rights. Rather than relitigate the right to self-determination, the HC affirms that legislation can and should be read as trans-inclusive.

It adds to the increasing precedent on this point. In NALSA v Union of India (2014), the Supreme Court held the Constitution guaranteed the right to self-determine one’s gender in law.  That ruling has since been applied to various contexts of gendered legislation to affirm that trans women are women:  for electoral positions reserved for women (2021), for gender-segregated cadet corps (2024), for a rape complaint (2019), for domestic violence (2023) and for heterosexual marriages (2019).

The judgment received widespread media coverage beyond India, compared to some of the above decisions. It came as good news amidst several blows against the global trans community, including the UK Supreme Court’s judgment that trans women are not women under the Equality Act 2010. The UK decision held that even if a trans woman has a certificate under the Gender Recognition Act 2004 recognising her as a woman, other statutes can implicitly override that certificate. Indian jurisprudence avoids that approach to statutory interpretation because these rights are protected at a constitutional level (an approach the UKSC could take).

Unresolved Questions

Since 2019, there is a two-step process for changing one’s legal gender under the Transgender Persons Act 2019. You can receive a Transgender ID Card as ‘transgender’ by self-determination, but to receive a Card bearing ‘male’ or ‘female’, they would require proof of ‘surgery’ (or ‘medical intervention’).

While Indian courts affirm trans women are women, the 2019 Act raises new issues about the extent of self-determination. Is a Transgender ID Card necessary to prove one’s legal gender? In Viswanathan (the present case), the claimant did not have a Card but the Court was satisfied with a certificate from a surgeon identifying the complainant as ‘transgender’. In Hina Haneefa (2024), which involved a trans woman seeking entry into the female cadet corps, the Kerala HC allowed the appeal, placing strong emphasis on the applicant’s Transgender ID Card bearing ‘female’ as a reason.

While the Courts continue to affirm that trans women are women, the specific framing of their reasoning continues to remain relevant in this context. Will judges and officials insist on going through an often delayed process of getting a Transgender ID Card that requires surgery? Will they insist on surgery even if they do not get a Card? Will any court embrace full constitutional self-determination and not insist on surgery? Will the Court affirm one’s gender as a ‘woman’/‘man’ or as ‘transgender’ (a third gender)? These questions remain open for future decisions.