Current Indian provisions on gender neutrality

As mentioned earlier, India does not have a designated or specific Gender

Neutrality Bill. However, despite that, most of the Indian legal provisions
apply to all genders, and there are many legal provisions and policies
advocating for gender equality as well as neutrality. Some of these provisions
include:

Constitution of India
The Constitution of India (1950), while not explicitly providing for gender
neutrality, covers many such provisions that promote equality while
attempting to eliminate any discrimination based on religion, race, caste,
place of birth, sex, or any of them. However, there are also provisions under
the Indian Constitution that allow gender-specific policies to be framed for
the uplifting of the marginalised genders.

Fundamental Rights
Article 14 of the Indian Constitution lays down the provision for equality
before the law, which is based on the doctrine of the Rule of Law. According
to this Article, every person is equal in the eyes of the law and shall have
equal protection under such law within the territory of India. This
fundamental right can be invoked by any person within Indian territory,
regardless of whether they are a citizen or not. However, reasonable
classification based on rational nexus and intelligible differentia is permitted.
In simpler terms, any differentiation based on fair and reasonable grounds
with a rational explanation behind such classifications shall be held legal and
constitutional.

Furthermore, since the Article talks about equality before the law and equal
protection under such laws, it can be interpreted to advocate for the right to
equal treatment in similar situations regardless of the gender or sexual
orientation of the individual. This shall be imposed for both the rights and
duties conferred.

In the landmark judgement of the NALSA case, the Supreme Court

recognized the adversities faced by the transgender community due to the
non-recognition of their gender. The Court highlighted how this
discrimination and prejudice based on gender is violative of Article 14 as well
as Article 21 since it directly affects their dignity and personal liberty.

The Court held that the exclusion of transgenders from Indian policies and
legal provisions denies them equality before the law and the equal protection
of the law as conferred on the other genders. Such exclusion results in
widespread discrimination against the transgender community, which could
only be resolved by proper accommodation in the law through gender-
inclusive language.

On the other hand, Article 15 of the Constitution prohibits discrimination in

any manner, let it be on the grounds of religion, race, caste, place of birth,
sex, or any of them. However, it also empowers the State under clause (3)
to make special policies and provisions for the upliftment of the vulnerable
sections of society, including women.

One may wonder if it is equality when the State is empowered to frame

specifically favourable laws for some sections of society. Many arguments
were also raised, questioning whether Article 15(3) is against equality before
the law.

This question was answered through many judicial precedents, the most
recent of which is Paramjit Singh v. State of Punjab (2009), in which it was
held that the policies for the upliftment and protection of a certain gender or
oppressed section of society are not discriminatory against the rest of
society. They simply protect the interests of those who have been
discriminated against and oppressed for far too long.

However, as held by the Supreme Court in the case of M.R. Balaji v. State of
Mysore (1963), the interests of the weaker and marginalised sections of
society should also be adjusted alongside the rest of society. Protective
discrimination should not extend to preferential treatment.

Article 16 of the Indian Constitution deals with the fundamental right to

equality in the context of employment. This provision specifically deals with
public employment, mandating the State to provide equal opportunity to
every citizen for the appointment or employment of any office under it with
no discrimination except the required qualifications for the office or post. The
selection can be done based on merit and qualifications but not on the
grounds of religion, race, caste, sex, descent, place of birth, etc.

While not directly dealing with gender neutrality, Article 16 still ensures that
there is no discrimination regarding employment in the public sector only due
to one’s gender identity or sexual orientation. This makes the provision
gender inclusive in nature.

Directive Principles of State Policy

Meanwhile, Article 39(a) of the Constitution states that every citizen of India,
regardless of their gender or sex, has the right to adequate means of
livelihood. Every individual has the right to get equal pay for the same or
similar work done. Based on this Article, many legislations have been
enacted to ensure gender equality as well as protection, especially in the
context of livelihood and employment. Some of these provisions include:

 The Minimum Wages Act of 1948;

 The Equal Remuneration Act of 1976;
 The Code on Wages of 2020, etc.
Lastly, Article 42 of the Constitution empowers the State to make legal
provisions for securing a proper working environment and conditions for
women during maternity. Based on this Directive Principle, the Maternity
Benefit Act of 1961 was enacted.

Beyond this, any situations or circumstances that are not covered by the
above-mentioned Articles will be examined in light of Article 14.