SEMINAR COURSE REPORT

ON

AN ANALYSIS OF TRANSGENDER RIGHTS IN INDIA

SUBMITTED TO

SCHOOL OF LAW

Submitted by: Supervised by:

Mawuleabenam Aku Adjahoe Ms. Bhumika Sharma
BA LLB, Semester IV, Section A Assistant Professor
2020-2025 School of Law, Sharda University

CERTIFICATE
This is to certify that this work incorporated in this SEMINAR COURSE REPORT on the
topic “AN ANALYSIS OF TRANSGENDER RIGHTS IN INDIA.” submitted by Miss
MAWULEABENAM AKU ADJAHOE of class BA LLB (A) Batch 2020-2025 is a bonafide
work of her and was carried out sincerely and honestly under guidance & supervision.

Bhumika Sharma

Assistant Professor

School of Law

Sharda University

Greater Noida
 DECLARATION
I hereby declare that this Seminar Course Report titled “AN ANALYSIS OF TRANSGENDER
RIGHTS IN INDIA” submitted for the partial award of Degree of BA L.LB to Sharda
University, Greater Noida is an original research work done by me.

I also hereby declare that this Report or any part of it has not been submitted to any other
University for the award of any degree or diploma or fellowship.
Place: Greater Noida
Date : May 5, 2022

Name: MAWULEABENAM AKU ADJAHOE

 TABLE OF CONTENTS
S.NO. PARTICULARS PAGE NO.
Acknowledgements

1. Objective of the study Transgender Rights in India 1-

2. Introduction 2-3

3. Historical Framework 4-7

3.1 Mughal Period

3.2 British Period

3.3 Criminalization under the colonial rule

3.4 Criminalization and marginalization during post-

independence era

3.5 Contemporary period

4. Comparative or analytical study of Transgender Rights in India 8-12

at global level/ local level/ within India/ at international level

5. Protective, Preventive and remedial measures laid down under 13-22

various enactments relating to Transgender Rights in India
5.1 Prohibition against discrimination
5.2 Education
5.3 Employment
5.4 Health care
5.5 Welfare measures
5.6 Violation of rights
5.7 Directions to the central and state government
5.8 Right of transgender persons bill 2014

6. Case laws relating to Transgender Rights in India 23

7. Conclusions and Suggestions 24

Bibliography
 ACKNOWLEDGEMENTS

With profound sentiments of gratitude, I acknowledge the guidance, suggestion and

encouragement given by my guide Ms. Bhumika Sharma because of whom I was able to
complete the task of writing this Seminar course report work successfully.

I am also grateful to other faculty members for their timely guidance and relevant knowledge
regarding various aspects relating to this topic. Also, I will fail in my duty if I don’t thank the
Library staff of Sharda University, who have warmly facilitated the task by providing various
books & journals, leading to successful completion of the task.

MAWULEABENAM AKU ADJAHOE

Class: BALLB A

Batch: 2020-2025

SOL, Sharda University.

1. Objectives
The objective of the study will be as follows:

I. Study the overall transgender as a third gender encompassing socio-economic variables.

II. Examine various kinds of discrimination, human rights violation faced by them all in
aspects concerning their lives.
III. Analysis of the transgender right in India and globally
IV. Protective and preventive measures laid down by government
V. Specifying the welfare provisions as to bring about a socio-economic change in Indian
society.
VI. Providing opportunities with an effort of making the provisions compatible for the intersex
sector.
VII. Aims at eradicating the discrimination they face in the employment, healthcare, and the
education sector.
VIII. Ensure access to or enjoyment of goods, and public places.
IX. Right to movement.

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 2. Introduction

Transgenders are people whose identities are distinct from the stereotypical gender norms, which
recognize genders only as male or female.  Society has did not accept their personality due to
which they need suffered from discrimination, social oppression and physical violence. There are
certain socio-cultural groups of transgender folks that are identified as Hijras, jogappas, Sakhi,
Aradhis etc. and there are people who don't belong to any of the groups but are spoken as
transgender person individually. The article deals with the Transgender rights in India because
the transgender have the correct to be recognized as a 3rd gender and are entitled to legal
protection under the law. The rights are equally guaranteed under the Indian constitution to the
transgender person because the constitution guarantees justice and equality to every and each
Indian Citizen. the govt has enacted the Transgender Person (Protection of Right) Act, 2019 to
supply prohibition against discrimination within the matters of employment, education and
health Services to the transgender person and Welfare measures are adopted to safeguard the
rights of the transgender person.Transgender persons are people whose identities are different
from the stereotypical gender norms, which identify genders only as male or female.  Society has
didn't accept their identity because of which they need suffered from discrimination, social
oppression and physical violence. There are certain socio-cultural groups of transgender folks
that are identified as Hijras, jogappas, Sakhi, Aradhis etc. and there are those who don't belong to
any of the groups but are mentioned as transgender person individually. The article deals with
the Transgender rights in India because the transgender have the correct to be recognized as a 3rd
gender and are entitled to legal protection under the law. The rights are equally guaranteed under
the Indian constitution to the transgender person because the constitution guarantees justice and
equality to every and each Indian Citizen. the govt. has enacted the Transgender Person
(Protection of Right) Act, 2019 to produce prohibition against discrimination within the matters
of employment, education and health Services to the transgender person and Welfare measures
are adopted to shield the rights of the transgender person.. Transgender person are considered as
people whose individuality is different from the gender they were thought to be at birth.
Transgender person means “a person whose gender doesn't matches with the gender that was
assigned to them at their birth but they're the persons with intersex variation and genderqueer”.
they're the those that are born with male or female anatomies but they feel different from their
bodily structure as their gender expression, identity or behavior differs from their birth sex.

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Transgender people try to express their identity in some ways as some use their behavior, dress
or mannerism to live similar to the gender they feel is correct for them as they reject the
conventional understanding of gender that's just divided between male and female so as that they
identify themselves as transgender or genderqueer. Transgender isn't a term limited to persons
whose genitals are intermixed but it is a blanket term of people whose gender expression,
identity or behavior differs from the norms expected from their birth sex. Various transgender
identities constitute this category including transgender male, transgender female, male-to-
female (MTF) and female to male(FTM).It also entails cross-dressers (those who placed on
attires of the other), gender queer people (they feel they're members to either both genders or
neither gender) and transsexuals.In India, there are an outsized range of transgender related
identities which contains the Hijras, Aravanis, Kothis, Jogtas/ Jogappas, Shiv Sakthis. within the
past, they were treated with great respect. ‘Hijra’ is also a Persian word translated as eunuch
which is used in common parlance for transgender community in India. ‘Aravani’ may well be a
term used for male-to-female transgender who undergo genital modification through SRS (Sex
Reassignment Surgery) or perform Nirwaan which may well be a standard mode of castration.
Kothi is utilized for those who adopt a female role in same sex relationships, but don't sleep in
communes as Aravanis.

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 3. History

The people who changed their gender or better still Transgenders have been among the Indian
society for centuries.There was historical evidence of recognition of “third sex” or persons not
notify male or female gender in near the beginning writings of ancient India.The concept of
“tritiyaprakriti” or “napumsaka” is an essential part of the Hindu mythology, folklore, epic and
early Vedic and Puranic literatures. The term “napumsaka” had been accustomed denote the
absence of procreative ability, presented by signifying difference from masculine and female
markers. Thus, variety of the primary texts extensively restricted issues of sexuality and thus the
thought of third gender which was an established thought therein. In fact, the Jain text even
mentions the concept of “psychological sex”, which emphasized the psychological make-up of a
personal, distinct from their sexual characteristics. Lord Rama, in the epic Ramayana, was
leaving within the forest upon being cast out from the sovereign authority for 14 years, turns to
his followers and request all the ‘men and women’ to revert back to the city. In the midst of his
followers, the hijras alone did feel bound by this direction and judge to stay with him. Impressed
with their devotion, Rama authorized them the power to  confer blessings on people on
auspicious occasions like childbearing and marriage, and also at inaugural events which, it had
been speculated to set the stage for the custom of badhai during which hijras sing, dance and
speak blessings. Aravan, the son of Arjuna and Nagakanya in Mahabharata offer to be sacrificed
to Goddess Kali to create sure the victory of the Pandavas within the Kurukshetra war, the only
real condition that he made was to chum around the last night of his life in marriage. Since no
woman was eager to marry the person who was doomed to be killed, Krishna assumes the form
of a beautiful woman called Mohini and married him. The Hijras of state considered Aravan their
progenitor and call themselves Aravanis. Jogappas located in Maharashtra and Karnataka are
male to female transgender who commit themselves to the service of a particular god. Shiv
Shakthis found in province are males who are considered married to gods particularly Lord
Shiva. they generally work as spiritual healers or astrologers.

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3.1 Mughal Period

Hijras played a famous role within the royal courts of the Islamic world, particularly within the
Ottoman empires and therefore the Mughal rule the Medieval India. They flourished to well-
known positions as political advisors, administrators generals similarly as guardians of the
harems. Hijras were regarded as competent, honourable and fiercely loyal and had free access to
any or all spaces and sections of population, thereby playing an important role within the politics
of empire building in the Mughal era. The Hijras also occupied high positions in the Islamic
religious institutions, especially in guarding the consecrated places of Mecca and Medina the
person of trust, they were ready to influence state decisions and also received large amount of
cash to own been closest to kings and queens. Thus hijra consequently state the role of their
status in that period.

3.2 British Period

In the inception of the British period in Indian subcontinent hijra used to receive protections and
benefits by some Indian states via entry into the hijra community. Moreover, the benefits
assimilated the provision of land, rights of food and insignificant amount of money from
agricultural households in exact area which were eventually removed through British legislation
as because the land was not bequeathed through blood relations.

3.3 Criminalization under the colonial rule

Through the genesis of colonial rule from the 18th century onwards, the circumstances changed
drastically. Statement of early European travelers proved that they were repulsed by the sight of
Hijras and could not get to the bottom of why they were given so much respect in the royal
courts and other institutions. In the second period of the 19th century, the British colonial
administration strenuously sought to criminalize the hijra community and to reject them the civil
rights. Hijras were considered to be different caste or tribe in different parts of India by the
colonial administration. The Criminal Tribes Act, 1871, this comprised of all hijra who were
concerned in kidnapping and sterilizing children and dressed like women to dance in public

5
places. The punishment for such activities was up to two years imprisonment and a fine or both.
This segregation history influences the vulnerable situations of hijra in this contemporary world.

3.4 Criminalization and marginalization during post-independence era

However the Act was repealed in 1952 and its legacy continues and lots of local laws reflected
the prejudicial attitudes against certain tribes, including against Hijras. Recently, the Karnataka
Police Act was amended in 2012 to “provide for registration and surveillance of Hijras who
indulged in kidnapping of kids, unnatural offences and offences of this nature” (Section 36A),
during an indistinguishable vein to the Criminal Tribes Act,1871, in keeping with Section 36A,
Karnataka Police Act, 1964, Power to control eunuchs. 

1. preparation and preservation of a register of the names and places of residence of all eunuchs
residing within the area under his charge and who are reasonably suspected of kidnapping or
emasculating boys or of committing unnatural offences or the other offences or abetting the
commission of such offences.

2. Piling objections by aggrieved eunuchs to the inclusion of his name within the register and for
taking away his name from the register of reasons to be recorded in writing.

3.5 Contemporary period

The transgender in India is possibly the foremost well-known and popular third kind of sex
within the times. The Supreme Court declared for transgender as third gender. The androgynous
in India have emanated as a powerful faction n the LGBT rights. within the contemporary time
the Government of India introduced such a lot of welfare policy and schemes like, census,
documentation, issuing of the citizenship ID Cards, issuing passports, social-economical
development and constitutional safeguards for the transgender people. The Mahatma Gandhi
National Rural Employment Guarantee Act (MGNREGA) could be a major inventiveness of the
Five Year Plan period which brought employment opportunities for transgender people. The
Ministry of Housing and concrete Poverty Alleviation is that the National Urban Livelihood

6
Mission and Healthcare facilities. The social, economic, political transformation, Housing, legal
measures, Police Reforms, legal and constitutional safeguards to stop human rights violations of
the transgender community and institutional mechanisms to address specific concerns of
transgender people.

The transgender community was given high position in mughal period and facing many
situational obstacles in British colonial rules. But now to protect the transgender communities
there are diverse policy and schemes implemented by the government. Through this, social
economical status of the transgender community will be evolved. The government should
eradicated the stigma, discrimination and human rights violation for the improvement of
transgender community. If all this are brought in their day to day life, it would redefine the
growth of transgender community in India.

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4 Comparative or analytical study of Transgender Right in India and International

All across the world, anytime the demand for determining the gender of an individual based on
the legal framework of a nation arises, a kind of moral panic ensues. To ensure that the
Transgenders survive as a community, a condition precedent is to eliminate the social stigma that
still remains inherent in the regime of most countries. For letting transgender communities
survive, the govt should acknowledge their rights to freedom, dignity and most significantly right
to privacy. The human rights movements have up to now condemned many of the measures
taken by governments in terms of the transgender communities across the planet as most of them
were revealed to be discriminatory and humiliating. Transgender people are subject to outright
violence in various parts of the planet. The indignant attitude towards them is embedded deep
into the roots of most cultures. The Trans Murder Monitoring Project is a worldwide project
that's to blame for collecting and analysing reports of transgender homicides worldwide and also
the same has recorded 1,731 murders of transgender people globally between 2007 and 2014.
Some studies in Canada and Europe have anticipated a high rate of transgender suicides and
attempts to suicide. Some countries, like that of Kuwait, Malaysia and Nigeria, consider
“posing” as female to be against the law, henceforth eliminating the rights of Transgender people
in totality. 

In matters of maintaining dignity, the transgender community experiences a lot of humiliation as

the ways of gender recognition in many nations can be very dangerous to maintenance of
minimum self-dignity in case of the LGBT and transgender individuals. An instance is,
in Ukraine, whoever wishes to be lawfully recognized must undergo a mandatory in-patient
psychiatric evaluation that lasts up-to 45 days in order to confirm or reject a case of
“transsexualism” and for that matter, sterilization against will followed by a number of medical
tests that require excessive time, space and travel and are basically unassociated to the diagnosis
in the first instance, are conducted. After that an in-person diagnosis of “transsexualism” takes
place which is conducted by a government official. Even in Latin American countries and the
United States, which regard themselves progressive in nature when it comes to the rights of the
LGBT community, transgender people still go via humiliating procedures, such as sterilization,
so as to get legally recognized. 

8
India, the transgender community has faced a continuing discrimination supported socio-
economic, socio-cultural and political conditions. Social Exclusion Framework has been used
variety of times to analyse and highlight issues concerning disadvantaged and disenfranchised
groups of a society following the idea developed by Emile Durkheim. Adapting this framework,
one can understand what proportion the transgender communities—especially the transgender
women—have faced trouble in decision-making and political aspects of the country. although
our country is home to multiple religions and claims to respect all cultures and individuals no
matter caste, creed and gender we witness that the incongruence of personal identity and
expression with relevancy the biological sex of a private gets by unacknowledged. Transgender
persons, especially Hijras, comprise of a marginalized section of the society. They face
discrimination even on medical grounds, be it private or public, including access to treatment for
HIV aids, antiretroviral treatment and sexual health services. Families usually abandon them and
plenty of become victims of prostitution and begging. lots of challenges are faced by the
transgender community when it involves political representations, especially just in case of
contesting elections, as in many instances the victories of transgender persons in elections were
overturned alleging fraud because of the stereotypical discomfort of the few elite. they need been
repeatedly denied employment regardless of whether or not they were well equipped with
necessary skills or not. Their occupations within the country mainly constitute of collecting alms
from streets or temples or providing wishes to the new-borns. Social departments have always
come up with special schemes for ensuring the rights of disadvantaged sections of the society but
there hasn’t been any for Hijras apart from the very rare case of providing land to the Aravanis in
Madras. 

In the year 2012, Argentina came out with the law for gender recognition that seems to travel
with the ideals of most of the people belonging to the LGBTQ+ community. Anyone above the
age of 18 can legally recognize themselves as a component of the community without having to
travel through the humiliating process of prior medical or judicial approval. Children may also
do the identical under the supervision of their legal representatives or through summary
proceedings before a judge.  Three years later four more countries: Columbia, Denmark, Ireland
and Malta followed suit and came out with drastic shift towards an entire obstacle free method of
gender recognition where people belonging to the LGBTQ+ community can simply file

9
application forms so as to be recognized within the way they need to without being subjected to
coerced sterilization or psychiatric evaluation.

A 22-year long legal friction introduced by Lydia led to the passing of Ireland’s 2015 Gender
Recognition Bill. the govt. imposed an identity-based legal gender recognition system. the
primary document answerable for the codification of the international principles of sexual
orientation, personal identity and human rights was the Yogyakarta principles. Nepal’s Supreme
Court came out with the judgement within the year 2007 that specifically ordered the govt. to
legally recognize third gender supported “self-feeling”. Activists thereafter successfully
supported the govt agencies in including third gender category on voter rolls (2010), the federal
census (2011), citizenship documents (2013), and passports (2015). Recognition of third gender
materialized in Pakistan and Bangladesh when their Supreme Courts declared so to be brought
into action within the years 2009 and 2013 respectively. the selection of being listed as
“unspecified”, within the official documents, has been offered by New Zealand and Australia.
The Dutch government is questioning whether official identification documents concern the
gender of a personal in the slightest degree.  In 2014, within the judgment of NALSA v. UOI,
Supreme Court declared that each person should have the correct to acknowledge their gender
and third gender was recognized henceforth. together with other fundamental rights, including
right to education, life, movement etc., legal recognition of an individual’s gender was also
identified as pivotal. Delhi supreme court in its ruling within the year 2015 highlighted the
indispensable link between other legal rights and gender recognition. Justice Siddharth Mridul
remarked: “Gender identity and sexual orientation are fundamental to the proper of self-
determination, dignity and freedom. These freedoms lie at the guts of non-public autonomy and
freedom of people. A transgender person’s sense or experience of gender is integral to their core
personality and sense of being. Insofar as, I understand the law, everyone contains a fundamental
right to be recognized in their chosen gender.” In order to enforce the directions, put forth by the
judgement, Rajya Sabha began engaged on the bill that discusses the rights of the transgender
community in India. A transgender bill was thereby sent to Lok Sabha within the year 2016.
Since then, it's been stated the Parliamentary committee and at last approved in 2018 followed by
the approval by President in December 2019 irrespective of the protests by the activists and
therefore the transgender community alike. there have been variety of concerns that were raised
by the NGOs and jurists alike regarding the bill of 2018 and also the same amount of agitation

10
still remains after the introduction of the 2019 bill. a number of concerns regarding the older
version of the bill were: The definition of the term “transgender” wasn't in compliance with the
definition put forth by the Supreme Court. The bill didn't mention about trans-women or trans-
men and gave a awfully harmful interpretation through the mention of the term “intersex” during
a manner that's capable of invoking a stereotypical idea about transgenders having reproductive
organs of both sexes, as in being heterosexual. Yogyakarta Principles and NALSA judgement
specified the necessity for privacy when it involves “sexual orientation” but the bill never
explained the identical and was silent about the discrimination supported the matter of
orientation.  The bill provided for a technique of gender recognition where the transgender
person may make an application to the District Magistrate who, in turn, may make
recommendations to the District Screening Committee which might compose of a medical
practitioner and a psychiatrist. All these three major concerns still be causes of dissatisfaction.
Unlike in Argentina, Columbia, Denmark, Ireland and Malta, the difficulty of hunting
humiliating procedural requirements before being recognized as a transgender still haunt the
community as they claim the identical is violative of their right under Article 14 of the Indian
constitution.  Developing economies like India are encountering activation of ‘third sex’ and
‘sexual character’ as legislative issues further referring principal issues like citizenship, human
rights, social personality and convention. With financial globalization within the creating scene,
a Western domineering thought of lesbian, gay, swinger and transgender (LGBT) character has
been sent resolute conventional social orders along these lines obliterating indigenous sexual
cultures and diversities. Globalization is taken into account because the transfer of ideologies
across the economic borders and transnational interaction together with international exchange.
just in case of sexuality issues, globalization ends up in a form of oppressive attitude towards the
identical.  Globalization may need had effect on the terminology of “third gender” but the
particular acceptance of what contradicts the ideologies bound by the standard rules of nature
comes from the deep-rooted cultural framework of a rustic. no matter what efforts are taken by
the country, having a particularly positive outlook towards the social acceptance of what was
considered to be taboo seems grim. But government has to untie itself from the boundaries of
such notions and think from the angle of what our constitution beholds.

Transgender community, like any other community, deserves to be treated at an equal footing in
the political and economic scenario of the country as rights of an individual are granted by the

11
constitution and not the society and the wounded ideologies of the same should not come in
contradiction with the legal and political framework of the country. 

12
5 Protective, Preventive and remedial measures laid down under various enactments
relating to Transgender Rights in India

Transgender people are individuals who differ from the stereotypes and existence of only two
genders that is man and women; they have different appearance, personal characteristics and
behavior. Being different from the other gender, transgender people have been subject to social
oppression as society does accept their gender identity and they suffer from the physical violence
which is inflicted upon them. The main problems from which they suffer are lack of education,
unemployment, homelessness, lack of health care facilities, depression, alcohol abuse and
discrimination throughout their life. To protect their rights and to solve their problems, The
Constitution of Indian has provided them with their own rights and The Supreme Court has given
them the right to be recognized as “Third Gender” and provided them with some welfare
measures.

Transgender are the person who have suffered discrimination for ages as earlier their gender
identity was not recognized either in eyes of law or by the society and they were forced to write
male or female against their gender. The Supreme Court of India recognized transgender as the
third gender to eradicate the discrimination suffered by them and to safeguard their rights. The
court asked the center to treat the transgender as socially and economically backward classes and
to allow them to get admission in the educational institution and employment on the basis of
their third gender category. In the landmark Judgment of National Legal Service Authority v
Union of India the third gender gained legal recognition in the eyes of law as the Hon’ble
Supreme Court ruled that the fundamental rights should be available to the third gender in the
same way as they were provided to the male and females. The court provides the transgender
with equal rights and protection under the Article 14, 15, 16 and 21. The court stressed out on the
importance of right to dignity and gave due recognition to their gender identity which was based
upon reassigned sex after undergoing Sex Reassignment Surgery as the person has a
constitutional right to get recognized as a male or female. Thus the transgender where entitled to
legal protection of law in all the spheres of state activity including the education and
employment.

The rule of law is supreme and everyone is equal in the eyes of law in India. Yet, the transgender
community is in a constant battle as they have to fight oppression, abuse and discrimination from

13
every part of the society, whether it’s their own family and friends or society at large. The life of
transgender people is a daily battle as there is no acceptance anywhere and they are ostracized
from the society and also ridiculed.

However, the Supreme Court of India in its pioneering judgment by the division bench
of Justices K.S. Radhakrishnan and A.K. Sikri in National Legal Services Authority v. Union of
India & Ors. [Writ Petition (Civil) No.400 of 2012(NALSA)] recognized the third gender along
with the male and female. By recognizing diverse gender identities, the Court has busted the dual
gender structure of ‘man’ and ‘woman’ which is recognized by the society.

“Recognition of Transgenders as a third gender is not a social or medical issue but a human
rights issue,” Justice K.S. Radhakrishnan told the Supreme Court while handing down the ruling.

The right of equality before law and equal protection of law is guaranteed under Article 14 and
21 of the Constitution. The right to chose one’s gender identity is an essential part to lead a life
with dignity which again falls under the ambit of Article 21. Determining the right to personal
freedom and self determination, the Court observed that “the gender to which a person belongs is
to be determined by the person concerned.” The Court has given the people of India the right to
gender identity.

Further, they cannot be discriminated against on the ground of gender as it is violative of Articles

14, 15, 16 and 21.

The Court also protects one’s gender expression invoked by Article 19 (1) (a) and held 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”.

The Court recognized the right to as to how a person choose to behave in private, personhood
and the free thought process of the human being, which are necessary for the fullest development
of the personality of the individual. The Court further noted that a person will not realize his
dignity if he is forced to mature in a gender to which he does not belong to or he cannot relate to
which will again hinder in his development.

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The Supreme Court has given certain directions for the protection of the rights of the transgender
persons by including of a third category in documents like the election card, passport, driving
license and ration card, and for admission in educational institutions, hospitals, amongst others.

Human rights are basic rights and freedoms which are guaranteed to a human by virtue of him
being a human which can neither be created nor can be abrogated by any government. It includes
the right to life, liberty, equality, dignity and freedom of thought and expression.

The Supreme court in National Legal Service Authority v the Union of India was concerned with
the grievances and suffering of the Transgender Community as they seek a legal declaration of
their gender identity rather than the identity of male/ female that was assigned to them at the time
of their birth and their prayer was that non- recognition of their gender identity is violation of
Article 14 and 21 of the Indian constitution. 

The Hon’ble court interpreted the meaning of Article 14 and held that the article provides
protection to ‘any person,’ and “person” here includes the transgender person as well and hence,
they are all entitled to legal protection of law in all the spheres of state activity like any other
citizen of this country. The court also held that Article 15 and 16 is not just limited to biological
sex of male or female but it intended to include those people too who consider themselves to be
neither male nor female. Further the court referred to Article 19(1)(a) and 19(2) and concluded
that transgender personality can be expressed by transgender’ s behavior and presentation and it
cannot be restricted or prohibited. Lastly, the court referred to Article 21 and held that “Hijras/
Eunuchs have to be considered as third gender, over and above binary gender under our
constitution and the laws”. 

The Supreme Court in its final judgment declared that transgender apart from binary gender,
should be treated as “third gender” for the purpose of safeguarding their rights under Part III of
Constitution of India and the laws made by the parliament and State legislature. The Court
further directed the state government to grant legal recognition to their third gender identity. The
Hon’ble apex court further ordered the government to remove social stigma and to promote
specific heath programs and equal protection to the transgender person.

The preamble to the constitution mandates every citizen Justice: – social, economic, political
equality of status.

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The Indian state policy that earlier recognized only two sex i.e. only male and female has
deprived the third gender from their several rights as being an Indian citizens, which includes
right to vote, the right to own property, the right to marry, the right to claim a formal identity
through a passport etc. and more importantly their the right to education, employment, health so
on. The basic rights which they were deprived from are their fundamental rights under Article
14, 15, 16 and 21. The rights of transgender where for the first time considered under the 2014
NALSA Judgment where the supreme court laid emphasis on protecting and safeguarding the
rights of the transgender person under the principles of Indian Constitution laid down in Article
14, 15,16 and 21.

Article 14, 15 and 16 provides right to equality and Article 21 which provides right to freedom
for each and every Indian citizen but transgender person where deprived from their basic right to
freedom and equality. 

Article 14 deals with Equality before the law or equal protection before the law within the
territory of India. Article 14 clearly falls within the expression “person” which includes the male,
female and third gender within its ambit so the transgender are also entitled to legal protection
under Indian constitution in all the spheres of state activity. 

Article 14 deals with Equality before the law or equal protection before the law within the
territory of India. Article 14 clearly falls within the expression “person” which includes the male,
female and third gender within its ambit so the transgender are also entitled to legal protection
under Indian constitution in all the spheres of state activity. 

Article 15 which deals with the prohibition of discrimination on the ground of religion, race,
caste and sex includes the third gender under its ambit as being the citizens they have the right to
not to be discriminated  on the ground of their religion, caste race and sex. They have the right to
protect their gender expression which is majorly reflected through their dresses, action and
behavior.

Article 16 deals with equality of opportunity in the matters of public employment as this article
is used to broaden the concept of sex which includes “Psychological Sex” and gender identity
within its ambit. The transgender being the citizens of India has the right to employment and

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equal opportunity in the matters of employment and they should not be discriminated on the
basis of their sexual orientation.

Article 21 which deals with the protection of life and personal liberty states that no person shall
be deprived of his life and personal liberty except according to the procedure of law. For ages
transgender have been deprived of their life and personal liberty. The transgender being the
citizen of India should have full right to protect their right and personal liberty. The Supreme
Court has also recognized the right to dignity by recognizing gender identity within the ambit of
Article 21.

The case Navtej Singh Johar v. the Union of India deals with the Decriminalization of Section
377 of the Indian Penal Code as the central issue of the case was the constitutional validity of the
of Section 377 as it stated that “voluntarily carnal intercourse against the order of nature with any
man, woman or animal shall be with punished with imprisonment for life, or with imprisonment
which may extend to ten years with a fine.” The petition was filed stating that Section 377 of the
Indian penal code is in violation of right to privacy, equality, freedom of expression and
protection against discrimination.  The petitioner in the present case filed the writ petition to seek
the recognition of right to sexuality, right to sexual autonomy and right to choose a sexual
partner to be a part of right to which is guaranteed under Art 21 of the Constitution of India. The
petitioner in the present case argued that Section 377 was violative of Article 14 as it was vague
in the sense that is did not define “ carnal intercourse against the order of nature” and there was
no intelligible differentia between natural and unnatural consensual sex. Section 377 was further
violative of Article 15 as it discriminates on the basis of the sex of a person’s sexual partner and
it was further violative of Article 19 as it denied the right to express one’s sexual identity.

The Hon’ble Supreme court in the present case held that Section 377 should be decriminalized
and affirmed that homosexuality is not an aberration but a variation of sexuality. The Court
further held that discrimination on the basis of sexual orientation is violative of right to equality
and right to privacy as sexual orientation forms an inherent part of self identity and denying the
following rights is violative of right to life and fundamental right cannot be denied.

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5.1 Prohibition against discrimination

Transgender people have suffered from discrimination for ages in the matters of housing, health,
education and employment. The discrimination suffered by them emanates from the social
stigma and isolation that they suffer from lack of resource which were provided for Transgender
people. To safeguard the rights of transgender people and to protect them from the
discrimination, The Transgender Person (Protection of Rights) Act, 2019 includes the prohibition
against discrimination which most importantly includes important sectors like employment,
education and health care sectors.

5.2 Education

The education of transgender person is equally important like other male or female gender but
the social stigma that transgender person faces breaks their interest and focus towards their
learning and they develop a feeling of being avoided, ignored and disgraced and the transgender
students are often denied to be admitted in educational institution as the educational institution
does not recognize their gender identities. To protect their right, The Transgender Person
(Protection of Rights) Act, 2019 provides that the educational institution that are funded or
recognized by government shall provide education, recreational facilities and sports for
transgender person without discrimination.

5.3 Employment 

The transgender persons have suffered workplace discrimination and discrimination in the
matters of employment. They suffer discrimination mainly in the form of privacy violation,
refusal to hire and harassment which leads to unemployment and poverty. To prevent the
discrimination suffered by them the transgender person protection act states that no government
or even the private entities can discriminate against transgender person in the matters of
employment which includes recruitment and promotions and every establishment should
designate a person to be a complaint officer to deal with the complaints in relation to the act.

In the case of Nangai v the Superintendent of Police, the petitioner in the present case had
applied for the post of a woman police constable. The Tamil Nadu Uniformed Services
Recruitment Board, Chennai conducted the application tests. Petitioner’s application was

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successful and she received an order of appointment from the Superintendent of Police at Karur
district. During the course of her training at the Police Recruit School in Vellore, she underwent
a medical examination. The examination declared that she was “transgender” on the basis of
chromosomal pattern and genitalia. The result of the medical examination contradicted her birth
certificate, medical records, and educational certificates. Later on The Superintendent ordered
her termination from the post of woman constable. The Hon’ble High Court upheld that the
petitioner has liberty to chose a different gender identity as a third gender in future based on the
medical declaration and the impugned order of termination from service issued by the
Superintendent of Police, was set aside by the Hon’ble court to protect her right as a transgender
person.

5.4 `Health care

The health care services for the transgender person does only refers to the medical procedure
involved in transition but health refers to a overall state of complete physical, mental and social
wellbeing. Health care also refers to a range of primary and other health care services which
includes employment, housing and public acceptance of the transgender people. As the
transgender person have suffered from substantial health disparities and barrier to appropriate
health care services for ages had made them to suffer depression, attempted suicide, violence and
harassment and even the HIV. To provide them protection and help them to lead a happy life The
Transgender Person (Protection of Rights) Act, 2019 states that government should take proper
steps to provide health care facilities to transgender person and it should include separate HIV
surveillance centers and sex reassignment surgeries and Transgender persons should be provided
with a comprehensive medical insurance.

5.5 Welfare measures

Transgender persons have been discriminated and neglected by the society for a long time but to
bring them back to the mainstream of the society several welfare measures have been taken for
the transgender person as in Tamil Nadu there was an instance where land was provided for
Aravanis and in Andhra Pradesh, the State government had ordered the Minority Welfare
Department to consider “Hijras” as a minority group and to develop welfare schemes for
Transgender. The department of social welfare board in Tamil Nadu established

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Aravanigal/Transgender Women Welfare Board to address the social welfare issues of
Transgender person. The transgender person Protection Act, 2019 has provided that relevant
government should take measure and ensure full participation of transgender person in society
and to formulate certain welfare schemes and measures to protect the right of the transgender
person.

5.6 Violation of Human Rights

They are deprived of social and cultural participation and hence they have restricted access to
education, health care and public places which further deprives them of the Constitutional
guarantee of equality before law and equal protection of laws. It has also been noticed that the
community also faces discrimination as they are not given the right to contest election, right to
vote (Article 326), employment, to get licenses, etc. and in effect, they are treated as outcast and
untouchable.

The transgender community faces stigma and discrimination and therefore has fewer
opportunities as compared to others. They are hardly educated as they are nor accepted by the
society and therefore do not receive proper schooling. Even if they are enrolled in an educational
institute, they face harassment and are bullied every day and are asked to leave the school or they
drop out on their own. It is because of this that they take up begging and sex work.

Seldom does a skilled individual from this community get into formal employment due to the
policy of hiring only from either the male or female gender. Even if they do, they are ridiculed
and ostracized and hence forced to leave their jobs.

They are forced into sex work which puts them at the highest risk of contracting HIV as they
agree to unprotected sexual intercourse because they fear rejection or they want to affirm their
gender through sex. They are viewed as ‘vectors’ of HIV in the society. Other sexually
transmitted infections such as rectal gonorrhea, syphilis, rectal Chlamydia, etc., add to the risk of
HIV.

Immoral Traffic Prevention Act of 1956 which was amended in 1986 has become a gender
neutral legislation. The domain of the Act now applies to both male and female sex workers
along with those whose gender identity was indeterminate. With the amendment both the male

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and hijra sex workers became criminal subjects as this gives the police the legal basis for arrest
and intimidation of the transgender sex workers.

Section 377 of IPC criminalizes same sex relations among consenting adults. This is a colonial
era law which makes the Transgender community vulnerable to police harassment, extortion and
abuse. In Jayalakshmi v. State of Tamil Nadu, Pandian, a transgender, was arrested on charges of
theft by the police. He was sexually assaulted in the police station which ultimately led him to
immolate himself.

5.7 Directions to the central and state government

The court as issued certain directions to the central and state government which are:

 Hijras, eunuchs should be treated as third gender for the purpose of safeguarding their
fundamental rights,

 Recognize the persons’ need to identify his own gender,

 Providing reservations in public education and employment as socially and educationally

backward class of citizens,

 Making special provisions regarding HIV sero-survelliance for transgender persons and
provide appropriate health facilities,

 Tackle their problems such as fear, gender dysporia, shame, depression, suicidal tendencies,
etc.

 Measures should be taken to provide health care to transgender people in hospitals such as
making separate wards and also provide them separate public toilets,

 Frame social welfare schemes for their all round development

 To create public awareness so that the transgenders feels that they are part of the society and
are not to be treated as untouchables.

 The judgment has marked a break from otherwise paternalistic and charitable approach of
the state towards the transgender community by framing their concerns as a matter of rights.

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5.8 Right of Transgender Persons Bill, 2014

The Bill was introduced in Rajya Sabha on 12th December, 2014 which is passed on 24th April,
2015 unanimously, with cross-party support. This was a private member’s bill introduced by the
MP from Tamil Nadu, Tiruchi Siva. 24th April is celebrated as Transgender day following the
passage of the Bill in the Rajya Sabha.

The rights guaranteed under the Bill are mostly substantive rights such as the right to equality
and non-discrimination, life and personal liberty, free speech, to live in a community, integrity,
along with protection from torture or cruelty and abuse, violence and exploitation. There is a
separate clause for transgender children.

Education, employment and social security and health are also covered under the Bill. The
chapter on education makes it mandatory for the Government to provide inclusive education for
transgender students and provide adult education to them.

With the employment chapter, there are two separate clauses dealing with formulation of
schemes for vocational training and self-employment of transgender persons by the Government.
There’s a separate clause for non-discrimination against transgender persons in any
establishment – public or private.

In the social security and health chapter, the Government is asked to propagate social security
and health care facilities which are to be provided in the form of separate HIV clinics and free
SRS. They should be given the right to leisure, culture and recreation. Basic rights like access to
safe drinking water and sanitation must be provided by the government.

The Bill envisages setting up a number of authorities and forums – National and State
Commissions for Transgender Persons. The Commissions work will be mostly in the nature of
inquiry or recommendations in the inconsistencies in the application of the law or violations of
right of transgender persons. The Commissions can issue summons to witnesses, receive
evidence, etc. There is penalty by way of imprisonment for upto a year for hate speech against
transgender people.

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6 Landmark/ Relevant case studies/ case laws

Laxmi Narayan Tripathy, a Hijra, explained her trauma as growing up as a child, “I felt
different from the boys (as I was born as a boy) of my age and was feminine in my ways. On
account of her femininity, from an early age, I faced repeated sexual harassment, molestation and
sexual abuse, both within and outside the family. Due to my being different, I was isolated and
had no one to talk to or express my feelings while I was coming to terms with my identity. I was
constantly abused by everyone as a ‘chakka’ and ‘hijra’.”

Later, she joined the hijra community is Mumbai as she identified with other Hijras and for the
first time in her life, she felt at home.

Siddarth Narrain, an eunuch, has similar things to say. He expresses his feelings as when, “I
was in the 10th standard I realized that the only way for me to be comfortable was to join the
hijra community. It was then that my family found out that I frequently met hijras who lived in
the city. One day, when my father was away, my brother, encouraged by my mother, started
beating me with a cricket bat. I locked myself in a room to escape from the beatings. My mother
and brother then tried to break into the room to beat me up further. Some of my relatives
intervened and brought me out of the room.”

22 years old Madhu (name changed), a transgender woman from Madurai explains why she no
longer gets tested for the disease. She shares that “I no longer have the courage. What if they say
that I have HIV and AIDS? Where will I go? And how will I learn? I hope to die if I ever get
detected with HIV.”

Similar life experiences have been experienced by other members of the Transgender
Community. Their vulnerabilities force them to compromise on their health and safety.

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7 Conclusions and Suggestions

The transgender communities have suffered enough and now its time they get what a standard
individual get in a standard circumstances. it's the duty of the country to empower transgenders
and supply them with the amenities from which they need been deprived because of social
stigma. With time the society is changing by breaking the stereotypes and these communities
have started making their way and space within the society during which everyone resides
fundamentally.

Suggestions

 The emerging laws must be amended on completely empathize with the wants and desires of
those parts of society.

 Organisations must confine mind that transgender individuals are subject to years of
discrimination resulting in social, economic and skill deficits, and thus recruitment criteria
must be revised accordingly. Organisations must also endeavor to supply training
programmes to enhance skills

 Employees should have access to washrooms that are appropriate for his or her identity.
Trans women are often subject to humiliation and harassment as they're forced to use male
washrooms.

 Undergoing SRS transition isn't only a difficult process but also a awfully traumatic one
both physically and psychologically. Organizations must put in situ policies that provide
transition sustenance, not only in terms of leave with pay, but also sensitizing the rest of the
workforce regarding a worker’s transition, supporting them with rehabilitation and
counselling.

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 Bibliography
[1] Preeti Sharma, “Historical Background and Legal Status of Third Gender In Indian Society”,
IJRESS, Vol.ED – 2 (12), December. 2012.

[2] K.S. Radhakrishnan, J. In the supreme court of India Civil original jurisdiction Writ petition
(civil) No.400 of 2012 National legal services authority, j u d g m e n t 2013.

[3] Laxmi Narayan Tripathy, In the Supreme Court of India at New Delhi Civil Original
Jurisdiction i.a. No. of In writ petition (Civil) P-400, 2013

[4] Ibid.P-400 [5] TahminaHabib , “A Long Journey towards Social Inclusion: Initiatives of
Social Workers for Hijra Population in Bangladesh” University of Gothenburg International
Master’s Programme in Social Work and Human Rights, 2012.

[5] https://www.hindustantimes.com/chandigarh/struggling-for-survival-trans-community-dips-
into-savings-to-feed-others-too/story-E3JLvwyjz3MFhJAUbIn2hM.html 

[6] https://theprint.in/opinion/modi-govt-releasing-draft-rules-transgender-persons-act-
lockdown-a-blow/414331/

[7] Constitution of India 1949

[8] Transgender Persons (Protection of Rights) Act, 2019

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