1. Abstract
In recent times, Transgender rights and recognition have received global interest, including India. Although there has been legal and constitutional progress, hurdles remain owing to cultural preconceptions, societal shame, and a lack of understanding in Indian society. This study investigates the legal and constitutional consequences of transgender recognition in India in order to assist policymakers, legal practitioners, and activists with insights. In this, the Supreme Court of India’s 2014 decision to recognize transgender people as a “third gender” was a significant step forward. The Transgender Persons (Protection of Rights) Act of 2019 sought to address concerns of discrimination, healthcare, education, and employment. Nevertheless, cultural attitudes and institutional barriers make successful implementation difficult. This study emphasizes the importance of strengthening legal safeguards, addressing discrepancies in criminal laws, and enforcing current legislation in order to secure transgender rights and recognition. Policy evaluation is essential for identifying opportunities for improvement. Additionally, healthcare reforms, including fair access to gender-affirming healthcare and mental health aid, are crucial. By implementing these recommendations and cultivating an inclusive culture, India can contribute to the worldwide movement for transgender rights. To achieve equality and justice for everyone, we must work together to recognize and appreciate the multiplicity of gender identities.
Keywords (5 to 6)
Transgender, Transgender Rights, Recognition, Third-gender, Laws
2. Introduction
Transgender rights and recognition have developed as a major social and legal problem throughout the world in recent years. While numerous nations have made progress in recognizing and protecting the rights of transgender people, obstacles remain, particularly in communities where gender stereotypes are strongly established. In this backdrop, India, with its rich cultural and constitutional fabric, has seen a paradigm change in its approach to transgender identification and resolving the challenges that accompany it. The purpose of this research study is to investigate the legal and constitutional issues of transgender recognition, as well as the problems that transgender people confront in India.
In a major decision in 2014, the Indian Supreme Court recognized transgender people as a “third gender” and upheld their constitutional rights. This decision recognized transgender people’s rights to self-identify as gender and to equal legal protection. Following that, in 2019, the Transgender Persons (Protection of Rights) Act was passed to protect transgender people’s rights and address concerns such as discrimination, healthcare, education, and employment.
However, the execution and efficacy of these legislative provisions have been hampered. Cultural biases, societal stigma, and a lack of awareness of transgender issues have hampered India’s full realization of transgender rights. Transgender people continue to encounter challenges to healthcare, education, job prospects, and basic social services. Furthermore, violence, harassment, and a lack of societal acceptability are ongoing challenges for the transgender population.
This research study aims to contribute to the existing debate on transgender rights in India by throwing light on the legal and constitutional perspectives of transgender recognition and addressing related concerns. It intends to give useful insights for policymakers, legal practitioners, and activists working to promote inclusion, equality, and justice for transgender people in Indian society. It is expected that the findings of this study will pave the way for a more holistic and revolutionary approach to transgender rights, resulting in a society that is truly inclusive and accepting of various gender identities.
3. Research Methodology
This study is descriptive in nature, and the research is dependent on secondary sources for a thorough examination of the recognition of Transgender identity and community in India. For the study, secondary sources such as newspapers, journals, and websites are employed.
4. Review of Literature
India, being an extremely diverse country, has always welcomed gender fluidity, as evidenced by numerous cultural and religious traditions that have acknowledged and honored transgender individuals. However, in modern day society, transgender rights have received scant legal recognition and protection, leaving transgender people exposed to discrimination, marginalization, and social isolation. The Indian legal system was reluctant to embark on a revolutionary journey to meet the special needs and concerns of transgender populations until recently.
5. Method
a. The State of Acceptance of Transgender Community
The founding fathers of India envisioned India as a society that would accept diversity, expose inequality, and transcend the limits that divide individuals such as religion, color, sex, geography, and so on. Fundamentally, the Constitution’s notion was to foster values that would result in an egalitarian society free of inequities based on religion, caste, gender, sex, geography, and so on. In this regard, the Constitution guarantees equal rights and opportunities to all citizens, and the country has come a long way in upholding such ideals, with the exception of the transgender population. Ironically, transgender persons are and have always been a part of Indian history. This can be seen throughout Indian Mythology; through the story of Shakuni in the Mahabharata or the tale of Arjuna when he temporarily loses his masculinity due to a curse; additionally, there are mentions of Transgender in Medieval history, around the Mughal Empire; where it is said that Transgender people served the Begums of the Mughal emperors.[1]
b. Lack of Reservation for Transgender community
In the past, the Transgender community has dealt with the lack of reservation for their people by petitioning, marching, and raising their voices to spread awareness about the issue. Just recently, on March 27, 2023, the Supreme Court refused to hear an application seeking clarification on providing transgender persons with reservations. In this application, the Supreme Court was asked to clarify that whether the reservation meant for transgender persons under the 2014 NALSA decision is horizontal reservation or vertical reservation.[2]
The Supreme Court issued a landmark decision in National Legal Services Authority v. Union of India, declaring that under the provisions of Part III of the Constitution, Hijras and Eunuchs, in addition to binary gender, belong to the ‘third gender’; that Transgender people have been guaranteed the right to decide their gender identity, and the State has to protect their legal recognition as a ‘third gender”; it directed the government to develop mechanisms to protect the rights and ensure the welfare of transgender persons.[3]
The applicant stated in the recently rejected Supreme Court application that the Supreme Court did not specify how the reservation should be implemented in the NALSA judgement and only directed the Union and the States to treat transgender people as a socially and educationally backward class and to provide them with special treatment in education and public employment; thus, many states have yet to implement such reservations.[4] Furthermore, the petitioner said that the ruling implies that transsexual individuals must be recognized as OBCs, allowing them vertical reservation, which can be quite troublesome.
Furthermore, according to the applicant, vertical reservation raises multiple issues, including: first, transgender people will be forced to choose between SC/ST and OBC quotas, and if they choose the former, they will be forced to forfeit the benefit of transgender quota and compete with SC/ST category members, or if they already belong to the latter category, they will not be eligible for such benefits; secondly, as in the case of women and people with disabilities, the reservations for transgender and intersex people is not made on the basis of gender and disability.[5]
c. Horizontal reservation in the state of Karnataka
On a positive note, recently, Karnataka state government submitted a report to the High Court notifying them of the amending of the Karnataka Civil Service (General Recruitment) Rule, 1977, making Karnataka the first state in the country to provide 1% reservation for the ‘transgender’ community in all the government services as well as reserve categories for the third gender. In that, job notifications for government positions must include ‘others’ category along with female and male gender columns.[6]
With this amendment, Karnataka has not only become the first state to provide for reservations in the public sector, but it also provides for horizontal reservations rather than vertical reserves. Therefore, reservations will be guaranteed across caste categories, and no one group will be able to dominate reservations for transgender persons. Unfortunately, unlike other protected categories, the aforementioned change still does not allow for age, cost, cut-off marks, or other conditions to be relaxed.[7]
d. Horizontal Reservation
Vertical reservation refers to reservations for marginalized caste identities, whereas horizontal reservation is an intersectional strategy that is available within each vertical reservation category. A Dalit woman, for example, can use vertical reservation under the SC category, but she will also be able to obtain reserves exclusively for women through horizontal reservation. The problem of the vertical strategy is that it forces people to choose between their caste and their gender identity in order to obtain quota reservation.[8]As a result, horizontal reservation would provide trans individuals with possibilities without surrendering their other caste-based privileges. Several petitions have been filed in various high courts in this regard, requesting horizontal reservation for trans individuals in government jobs and education.
e. States with special policies for the transgender community
More recently, some claim that progress can be seen through the generating and formulating of special policies for the transgender community in different states. This supposed progress can be seen through the recent actions of the Bombay, Madras and Patna High Courts.
In the case of Vinayak Kashid vs MSETCL & Ors, the Bombay High Court directed the Maharashtra government to formulate a policy for the transgender community in government-backed educational institutions and for government jobs until June 7, 2023; additionally, the Court questioned the Advocate General for Maharashtra as to why such a policy had not been implemented in the state.[9] Similarly, the Madras High Court in October 2022, had ruled that transgender persons are entitled to admission to educational institutes under the third gender category.[10] Following that, the Bihar Government told the Patna High Court in a broad notification dated 14th January 2021 that it has made a decision to provide reservation for transgender individuals in appointment to the position of Constables/Sub-Inspectors.[11]
f. Discriminatory policies prohibiting blood donation
The Union government defended its discriminatory, irrational, and prejudiced regulations barring transgender people from donating blood in March 2023 under the guise of public health. Transgender persons, female sex workers, and homosexual men are prohibited from giving blood under the idea that people in these areas have a greater frequency of HIV (human immunodeficiency virus) and other transfusion-transmitted diseases (TTIs).[12] According to Santa Khurai, a transgender community petitioner, the exclusion and permanent restriction of people from giving blood solely on the basis of their gender identity and sexual orientation was harsh, discriminatory, irrational, and biased, as well as unscientific.[13] Santa Khurai contended in this case that the exclusion was based on negative stereotypes and violated Articles 14 and 15 of the Constitution.[14]
g. Lack of protection under criminal laws
Transgender persons face a lack of protection under the country’s criminal laws, among other issues. Transgender identities are not recognised as valid genders or on the same level as cis-gendered people under gender-based criminal legislation. For instance, the Indian Penal Code laws governing rape cases indicate this. In these cases, rape is considered an unlawful act committed by a male against a woman; it does not protect Transgender community victims and fails to adequately assist Transgender victims of sexual assault. Second, Section 377 of the Indian Penal Code does not protect victims of unnatural crimes in the Transgender community; while the law penalises unnatural crimes and protects men, women, and animals, it still excludes the Transgender community for illogical reasons.[15]
Furthermore, the Transgender Persons Protection of Rights Act 2019 has punishments and clauses that create disparities in legal protection for transgender women and cis-gender women for the same offences, which may be regarded as discriminatory and unfair. Section 18 of the 2019 Act states that anyone who physically, mentally, or emotionally harms, injures, or endangers the life, safety, health, or well-being of a transgender person will face a minimum of six months to two years in prison and a fine, though this is less severe than the punishment awarded in 498A of the IPC for crimes against cis-gender women.[16] As a result, any heinous act performed against a transgender woman would have less weight in the eyes of the law than any crime committed against cis women. Furthermore, transgender women face two layers of bias in society based on their gender identity, one as a woman and another as a transgender woman, and as a result, victims face a number of difficulties to getting basic justice and protection.[17]
h. Problem with Recognition of the Third Gender
Today, legal gender recognition is a basic human right, alongside the right to privacy, expression, and justice. In this regard, while India’s recent recognition of the third gender should be recognized and supported, the stipulations of such legislation pose some major challenges.
The Transgender Persons (Protection of Rights) Bill, 2019, creates a two-step procedure in India for recognizing third-gender status. To begin, a person must get a “transgender certificate” from the appropriate District Magistrate. Following the issuance of a certificate, one can apply for a “change in gender certificate,” which is where the problem arises; this second step requires people to provide proof of surgery, issued by a hospital official, to the District Magistrate for a second evaluation, and the official must be “satisfied with the correctness of such certificate.” This creates an arbitrary amount of power in the hands of a single government post to decide whether trans people ‘qualify’ to be recognized as who they are. [18] Additionally, the need to provide proof of surgery coerces people into performing medical procedures against their will, ignorant to the fact that surgery or physical transformation is not necessary to be a ‘valid’ or ‘real’ member of the Transgender community.[19]
i. Suggestions
Despite advances in recognizing transgender rights in India, challenges such as cultural preconceptions, societal stigma, and a lack of understanding remain. In a 2014 Supreme Court decision, transgender people were recognized as a “third gender” with constitutional rights. The Transgender Persons (Protection of Rights) Act of 2019 was passed to reduce discrimination and provide safeguards. However, enforcement of these legislation has been impeded, and transgender persons continue to face challenges in healthcare, education, employment, and cultural acceptance. To address this issue, the government and judiciary must collaborate to identify hurdles and reflect socio-cultural changes in the society to provide real inclusiveness for the transgender population. On the front lines, the government and courts must first improve legal safeguards, conduct ongoing research and reviews, and address healthcare changes.
For starters, the government and judicial authorities must address the absence of legal protection for transgender women and fix the disparity in consequences for crimes perpetrated against cis-gender women. Additionally, efforts should be made to strengthen the implementation and enforcement of existing transgender rights legislation, such as the Transgender Persons (Protection of Rights) Act. Furthermore, steps should be taken to assure the sufficiency of government institutions, law enforcement, and judicial authorities in handling issues involving transgender individuals, as well as the imposition of appropriate punishments for violations of their rights.
Second, given recent transgender advances, it is evident that greater research on transgender issues and culture is required to allow for better educated and less ignorant judgements. Policymakers and governing authorities must create means for continual research and evaluation of transgender rights and recognition policies and programs in this respect. This is essential for assessing their effectiveness and finding areas for improvement. Authorities must gather data on transgender people’s experiences, examine the impact of legislative measures, and investigate best practices from other countries to inform policy modifications.
Lastly, it is critical to recognize that healthcare improvements for transgender persons have been mainly overlooked and unaddressed. Recognizing transgender identities requires addressing the lack of healthcare changes in the areas of treatment equality and access to gender-affirming healthcare, mental health assistance, and hormonal therapy. Better study in this area is needed in order to develop better educated policy about the health and welfare of the transgender population.
6. Conclusion
Ultimately, the matter of transgender rights and recognition has received significant focus globally, including in India. Despite advances in recognizing transgender people’s rights through legal and constitutional measures, there are still significant challenges to overcome. Cultural biases, societal stigma, and a lack of understanding continue to obstruct full acceptance of transgender rights in India.
The Indian Supreme Court’s landmark 2014 decision recognizing transgender people as a “third gender” and preserving their constitutional rights was a significant step forward. Following that, the Transgender Persons (Protection of Rights) Act of 2019 was passed to provide legal protection and address a number of concerns such as discrimination, healthcare, education, and employment. However, societal attitudes and structural hurdles have impeded the execution and efficacy of these statutory measures.
The legal and constitutional ramifications of transgender recognition in India are highlighted and examined in this research work. By analyzing existing regulations and issues, this research aims to contribute to the ongoing debate and provide insights for policymakers, legal practitioners, and activists. The study’s findings should pave the way for a more comprehensive and innovative approach to transgender rights in India, fostering a society that celebrates and accepts different gender identities.
To ensure that transgender people’s rights are recognised and protected, the government and legal systems must adopt proactive and remedial actions. Legal protections must be enhanced, discrepancies in criminal laws must be rectified, and existing legislation must be more effectively implemented. Transgender rights and recognition policies necessitate continuing research and evaluation to identify areas for improvement and to promote informed decision-making practices. Furthermore, healthcare improvements, such as equal access to gender-affirming healthcare and mental health services, are crucial to satisfying transgender people’s specific needs.
On a more positive note, by implementing these recommendations and working towards a more inclusive society, India can overcome the obstacles and contribute to the global stand for transgender rights.
7. Author Details
Name: Vedanti Amit Sankpal
College: MIT-WPU School of Law
Date: 13/06/2023
Assignment #1 – Research Paper
Second Year BBA LLB (Honors)
Intern at the Amikus Qriae
Team Sanskriti & Rukshat
[1] Ajay Amitabh Suman, Transphobia: Acceptance Of Third Gender In Indian Society, Times of India Blog (2021), https://timesofindia.indiatimes.com/readersblog/ajayamitabhsumanspeaks/transphobia-acceptance-of-third-gender-in-indian-society-30696/.
[2] Tanya Arora, Reflecting on Transgender Rights in 2023: Have Legal Recognition and Advocacy Efforts Broken the Cycle of Discrimination and Ostracism?, CJP (2023), https://cjp.org.in/reflecting-on-transgender-rights-in-2023-have-legal-recognition-and-advocacy-efforts-broken-the-cycle-of-discrimination-and-ostracism/ (last visited Jun 12, 2023).
[3] Sneha Mahawar, The conflict between the Transgender Persons Act, 2019 and the NALSA v. Union of India verdict of 2014, iPleaders (2021), https://blog.ipleaders.in/conflict-between-transgender-persons-act-2019-nalsa-uoi-verdict-2014/ (last visited Jun 12, 2023).
[4] Tanya Arora, Reflecting on Transgender Rights in 2023: Have Legal Recognition and Advocacy Efforts Broken the Cycle of Discrimination and Ostracism?, CJP (2023), https://cjp.org.in/reflecting-on-transgender-rights-in-2023-have-legal-recognition-and-advocacy-efforts-broken-the-cycle-of-discrimination-and-ostracism/ (last visited Jun 12, 2023).
[5] Ibid n4
[6] IANS, Karnataka Becomes First State to Provide 1% Reservation for Transgenders, News18 (2021), https://www.news18.com/news/india/karnataka-becomes-first-state-to-provide-1-reservation-for-transgenders-3988571.html (last visited Jun 12, 2023).
[7] Tanya Arora, Reflecting on Transgender Rights in 2023: Have Legal Recognition and Advocacy Efforts Broken the Cycle of Discrimination and Ostracism?, CJP (2023), https://cjp.org.in/reflecting-on-transgender-rights-in-2023-have-legal-recognition-and-advocacy-efforts-broken-the-cycle-of-discrimination-and-ostracism/ (last visited Jun 12, 2023).
[8] Aishwarya Singh, Horizontal Reservation for India’s Transgender Community: Can the Supreme Court Deliver? | OHRH, Oxford Human Rights Hub (2023), https://ohrh.law.ox.ac.uk/horizontal-reservation-for-indias-transgender-community-can-the-supreme-court-deliver/ (last visited Jun 12, 2023).
[9] Tanya Arora, Reflecting on Transgender Rights in 2023: Have Legal Recognition and Advocacy Efforts Broken the Cycle of Discrimination and Ostracism?, CJP (2023), https://cjp.org.in/reflecting-on-transgender-rights-in-2023-have-legal-recognition-and-advocacy-efforts-broken-the-cycle-of-discrimination-and-ostracism/ (last visited Jun 12, 2023).
[10] Ibid.
[11] Ibid.
[12] Ibid.
[13] Ibid.
[14] Ibid.
[15] Fizahbaba, Discriminatory Penal Laws For Transgender Community, legalserviceindia.com (2023), https://www.legalserviceindia.com/legal/article-788-discriminatory-penal-laws-for-transgender-community.html (last visited Jun 12, 2023).
[16] Tanya Arora, Reflecting on Transgender Rights in 2023: Have Legal Recognition and Advocacy Efforts Broken the Cycle of Discrimination and Ostracism?, CJP (2023), https://cjp.org.in/reflecting-on-transgender-rights-in-2023-have-legal-recognition-and-advocacy-efforts-broken-the-cycle-of-discrimination-and-ostracism/ (last visited Jun 12, 2023).
[17] Ibid.
[18] Kyle Knight, India’s Transgender Rights Law Isn’t Worth Celebrating, Human Rights Watch (2019), https://www.hrw.org/news/2019/12/05/indias-transgender-rights-law-isnt-worth-celebrating.
[19] Ibid.
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