Transgender Legal Rights in India

In India, there are different socio-cultural groups of trans people identified by different names such as Aradhis, Jogappas, Hijras, and Sakhi. There are also those that don’t necessarily belong to any of these classifications but are individually known as transgender.

Transgender people in India are now within their rights to be recognized as the third gender. They also have the right to get legal protection under the law. The constitution of India guarantees equality to all Indian Citizens irrespective of their sex or gender. The Transgender Person Act (Protection of Right), 2019, enacted by the Government gives provisions against discrimination of transgender persons in the attainment of health services, education, and employment.  

Note: This Act has many flaws, which have been brought to the Central Governments notice, which also directly affects the Privacy of Transgender folks. We hope for early reformations in the Act.

As a result of these efforts, there are different measures put in place to ensure the rights of transgender people are protected. After efforts to bring to light the discrimination suffered by transgender, the Supreme Court of India made a ruling to recognize transgender as the third gender in order to uproot the suffering and discrimination endured by trans people to safeguard their rights. 

The Court decreed that transgender people should be treated as economically and backward classes and that they should get access to employment and education institution due to their third gender category. The third gender attained legal recognition in the landmark Judgement of National Legal Service Authority vs Union of India. The Court ruled that the third gender should have access to the same fundamental rights as the female and male gender. 

Equal rights and protection for the transgender in India are provided under Article 14,15,16, and 21. The Court was particular about how vital dignity is and acknowledged gender identity based on sex reassignment surgery. The Court as a result recognized the diverse gender identities and busted the social structure of only “woman” and “man” generally accepted by society. According to Justice K.S. Radhakrishnan while handing down the ruling, ““Recognition of Transgenders as a third gender is not a social or medical issue but a human rights issue”. 

Article 14 and 21 of the constitution guarantees equal protection of the law and right of equality before law. Article 21 also covers the right to live a life of dignity which also includes the right to choose your gender identity. 

The Court further established that the person concerned has the right to choose the gender to which they belong. Consequently, the people of India have a right to gender identity and therefore, since it is violative, transgender people cannot, and should not be discriminated against under Articles 14,15,16, and 21.

According to Article 19 (1) (a) one’s gender expression is protected. It holds that:

“no restriction can be placed on one’s personal appearance or choice of dressing subject to the restrictions contained in article 19(2) of the Constitution”.

Anyone can choose how they would like to behave while in private, think freely as any human being would in order to fully develop their personality. The court acknowledged that it wasn’t possible for anyone to fully mature into a gender if forced into it.