Summary: The article analyses the case of Hari Devageeth v Union of India. It highlights the conflict faced by the court between two constitutional rights: a transgender man’s right to bodily autonomy, and his right to be recognised as a man. This piece argues that Section 20 of the Transgender Persons (Protection of Rights) Act, 2019, read as an affirmative enactment, resolves that conflict without compromising either.
On 11th February 2025, a transgender man moved the Kerala High Court for an order allowing him to use the Assisted Reproductive Technology Act (“ART Act”) to cryopreserve his eggs. The ART Act restricts its benefits to ‘women’ and ‘married couples’, but his documents stated ‘male’. The Central Government responded by arguing he fell outside the statute entirely, adding that Indian society was not ready for parentage to be granted in such a manner.
The Kerala High Court in this case (Hari Devageeth v. UOI) passed a judgment allowing the transgender man to avail the provisions of the ART Act. Here, the Court faced a conflict between two constitutional rights: a transgender man’s right to bodily autonomy, and his right to be recognised as a man. The Court decided that the right to reproduction trumps over the right to be recognised as one’s gender. This piece condemns this decision, and argues that Section 20 of the Transgender Persons (Protection of Rights) Act, 2019 (“Transgender Act”), read as an affirmative enactment, resolves that conflict. The rights can be harmoniously interpreted and practically applied at the same time, without compromising on either of them.
Two Constitutional Rights in Tension
To begin with the complexity surrounding harmonising existing statutes with the recognition of transgender people, one must consult the NALSA judgment. This was the first judicial recognition of rights done for transgender people as a whole. It interpreted the right to life and dignity being inherent to transgender people, and held that self-determination of one’s gender was a right. In the Supriyo judgment, it was again constitutionally held that transgender people were to be treated as their respective gender identity (transgender men were held to be treated as men in marriages, and same for transgender women).
For this particular matter, there also needs to be an analysis of judgments regarding reproductive rights. Suchita Srivastava v. Chandigarh Administration had held that reproductive rights, like the right to choose whether to have a baby or otherwise is inherently present for every woman. In the case of X v. Principal Secretary, Health and Family Welfare Department, NCT of Delhi, the Supreme Court relied on the Puttaswamy judgment to hold that the right to reproductive autonomy is closely linked with the right to bodily autonomy, and is protected under Article 21.
This means that the right to reproductive autonomy doesn’t find its origin in any inherent character of womanhood, but rather through the right to bodily autonomy. Going by these interpretations regarding bodily autonomy, and reproductive rights, the respective rights cannot be held to only be available to cisgender women, but also transgender men, as choosing to use their reproductive function can only be said to fall under the right to bodily autonomy. Stopping the same from occurring would not fall under the ambit of reasonable restrictions on this fundamental right, particularly through narrow justifications such as threat to social order, which was held as an invalid justification under the case of Navtej Singh Johar v. UOI.
The Trap of a Bioessentialist Interpretation
The right to bodily autonomy and the right to be recognised for one’s gender in this circumstance conflict as the statutory application of the ART Act requires the applicant to be either a ‘woman’ or a ‘married couple’. Plainly applying the NALSA judgment in this instance would result in the petitioner’s right to bodily autonomy being denied. However, this is not the only problem.
The Kerala High Court interpreted ‘women’ within the ART Act to refer to trans men purely on the basis of reproductive function. This interpretation affronts the NALSA and Supriyo judgments completely as it denies the legal recognition of trans persons as their respective gender. The right to self-perceived gender identity, protected under S. 4 of the Transgender Act is also offended.
The Kerala High Court held that a person’s right to reproductive autonomy trumps their right to gender recognition, and distinguished gender and sex in that context accordingly. Such a judgment negatively impacts the protections deliberated for transgender women. There have been several debates regarding whether transgender women can access legal protections afforded to cisgender women, with some judgments holding affirmatively (Vishwanathan Krishna Murthy v. The State of Andhra Pradesh held that laws relating to sexual violence apply towards transgender women, and Vithal Manik Khatri v. Sagar Sanjay Khamble saying that the Protection of Women against Domestic Violence Act also applies to transgender people) and some judgments holding negatively (Bhupesh Thakur v. State of Himachal Pradesh stating that S. 69 BNS does not apply to transgender women).
The Kerala High Court’s distinction between sex and gender, and willingness to read other gendered rights as clashing with gender identity, sets a dangerous precedent in the modern political landscape, as it allows for the stripping away of female gendered protections from transgender women. For instance, insensitive comments were made by Ministry of Social Justice and Empowerment Official, Yogita Swaroop, who said that a “woman and trans woman” must be treated differently in the light of rape law, protections, and punishment.
The Kerala High Court’s judgment gives way for this form of rhetoric to become legally codified. Instead of reading gender recognition, and reproductive autonomy in a harmonious manner, the Court chose to read them as separate constructs, leading to the legal inference that gender recognition, and the right to self-determination can be hindered when other rights are in conflict. This rhetoric also presupposed that the rights needed to clash in the first place, which is untrue as the NALSA judgment had upheld the Yogyakarta Principles to guide constitutional interpretation relating to trans people, and they had explicitly held for reproductive health to be of great concern. Even in regards to constitutional interpretation, the framework is present to not pit rights against each other, possibly having them serve as persuasive precedents for decisions prejudicing transgender rights.
Section 20 of the Transgender Persons (Protection of Rights) Act as the Solution
Section 20 of the Transgender Persons (Protection of Rights) Act, 2019, reads as follows:
“20. Act not in derogation of any other law.—The provisions of this Act shall be in addition to, and not in derogation of, any other law for the time being in force.”
This particular provision makes the entire Transgender Act an affirmative enactment i.e. an enactment which only adds rights to persons, and does not replace, or reduce, any. Affirmative enactments can only abrogate and subrogate other statutes where the previous statute/provision goes precisely against new rights and liabilities created by the affirmative enactment. Even in negation, the particular statute, as far as possible, needs to be interpreted harmoniously with the other statute on the same subject matter (para 19-20). The later statute/provision should be completely nugatory to the prior provision for an affirmative enactment to implicitly repeal/strike down a previous provision.
Before a transgender man transitions legally, the laws that are applicable to such persons are the laws that apply to women. The Supriyo judgement held that S. 20 of the Transgender Act was an affirmative enactment, and as such could only implicitly repeal other provisions under the most precise contraventions. Clubbing this with the right to self-determination of perceived gender identity under the statute, the Supreme Court held that S. 20 did not apply in the circumstance of marriage, as the application would hold a direct contravention. This is because the marriage rights afforded to men, and the ones afforded to women, are completely different in nature (para 275-277).
The Supreme Court’s citing of S. 20 in Supriyo to denote that trans people must be treated as their respective gender can only have a singular inference: one cannot have the legal rights and responsibilities afforded to both the male and female gender, especially in a gendered legislative landscape such as India. An example can be seen in how men and women can be said to have a different amount of share in the property in muslim personal law. Such rights cannot co-exist to a single person (one person cannot have 2/3rd share and 1/3rd share at the same time). Therefore, S. 20 cannot be applied in the instance of marriage because the legal characteristics for a man and woman have different specificities in the same matter, which cannot exist together.
Since there is no parallel law regarding reproductive rights for men, there would be no such contravention under the ART Act. There were pleadings in the Kerala High Court related to affirmative enactments (not relating to S. 20 of the Transgender (Protection of Rights) Act, but rather S. 45 of the ART Act, but the principle between them is the same). However, the Court did not address the same.
Therefore, there would be no issues in reading the Transgender Act, as an affirmative enactment in this particular instance. The rights of a transgender man would be privy to their legal characteristics as a man, and would not contravene the rights they would have otherwise been privy to in making reproductive decisions relating to their body.
This interpretation is not only beneficial, but is the only way that the right to reproductive autonomy, and the right to self-determination can be balanced in India. There is no juxtaposition of rights that a man has in relation to the ART Act. Therefore, the logic used in Supriyo to abrogate the marriage rights of the transgender persons assigned gender cannot be applied here. This interpretation would also treat the right to self-identification and gender recognition as absolute, which is necessary in such turbulent times of prejudice against transgender people.
Conclusion
This paper’s conclusion is that the Courts, to mobilise the right to bodily autonomy and the right to self-determination of perceived gender identity, needs to interpret the ART Act not through reproductive function, but rather, through reading the Transgender Act as an affirmative enactment. This interpretation would not only align with both the fundamental rights pertinent in the particular case, but would also not pose any threat to the gendered protections transgender women are privy to, and grant any and all such requisite rights (important for exercising bodily autonomy) to transgender men as well. Any further courts deciding up on the subject matter should clarify the same, and should overrule/differentiate them from the Kerala High Court’s decision.
(Note: The Transgender Persons (Protection of Rights) Amendment Act, 2026, passed during the finalisation of this piece. The Bill’s introduction of mandatory medical certification for gender recognition directly contravenes the self-determination rights affirmed in NALSA, Supriyo, and Puttaswamy, and cannot survive constitutional scrutiny, especially considering how the Supreme Court advisory committee also advised against the amendment Bill. Its full implications fall outside the scope of this piece)
Short Bio: Janvi P Antony is a student at National University of Advanced Legal Studies, Kochi.
Ed Note: This piece was edited by Aditi Bhojnagarwala and published by Tamanna Yadav from the Student Editorial Team
