The Indian judiciary took a huge step to ameliorate their plight when it declared the transgender people to be a ‘third gender’ and affirmed that the fundamental rights granted under the Constitution of India are equally applicable to them. This ground-breaking judgment was rendered by a Division Bench composed of Justice K.S. Radhakrishnan and Justice Arjan Kumar Sikri in National Legal Services Authority vs Union of India, (also known as the Nalsa Judgment), wherein ‘gender identity’ was discussed at length. It also declared that hijras and eunuchs can legally identify as “third gender”.
“Transgenders are also citizens of India” and they must be “provided equal opportunity to grow. The spirit of the Constitution is to provide equal opportunity to every citizen to grow and attain their potential, irrespective of caste, religion or gender”, the court said.
The court upheld the right of all persons to self-identify their gender under Article 21 of the Constitution as being part of their right to live a dignified life. Further, it stated that Articles 14 and 19 are gender neutral and therefore, are applicable to transgender people as well. Thus, their right to equality and freedom to express themselves through words, dresses, etc. was upheld. It was also observed that Articles 15 and 16 expressly prohibit discrimination on the basis of sex, where ‘sex’ does not only mean biological attributes but it also includes one’s own perception about their gender identity.
The Court further held that no third gender person should be subjected to any medical examination or biological test which would invade their right to privacy.
Further directions were given out by the court to the Government to tackle stigma against the transgender community. The directions given include recognising them as ‘socially and economically backward’ to enable them to get reservations in jobs and education; providing access to medical care and separate public toilets for them; making provision for legal recognition of transgender in all documents and framing various social welfare schemes to uplift them and make them feel that they also are an equal part and parcel of the society.
This is a welcome move as this class of people has been discriminated against for centuries and does need a helping hand to rise to the same socio-economic status as the other genders.
Needless to say, this judgment brought in a huge wave of joy and hope within the transgender community who have long been waiting to be given legal sanctity. “Today, for the first time I feel very proud to be an Indian,” said prominent transgender activist Laxmi Narayan Tripathi.
In the wake of the Nalsa Judgment, the Indian parliament recently enacted the Transgender Persons (Protection of Rights) Act, 2019 which has been labelled by the activists as a ‘murder of gender justice’. This Act was passed despite criticism and wide-spread protests across the country by the transgender rights activists and the trans community. Many letters were also addressed to call upon the lawmakers to respect and uphold the spirit of the Nalsa Judgment in making these provisions. The main areas of the statute that led to its condemnation by the community are discussed below.
The Act requires a transgender person to submit an application to District Magistrate for a legal recognition of one’s transgender identity and it makes getting an ID as male or female dependent on first, registering as transgender and then, supplying proof of sex reassignment surgery. A sex reassignment surgery is not something all transgender people want and is a very expensive procedure, which many aren’t able to afford. It is also a violation of privacy. This contradicts the 2014 Nalsa Judgement by the Supreme Court, which gave transgender people the right to self-identify, and did not mandate surgery.
The Act makes sexual abuse against a transgender person a punishable offence. However, it fails to clearly define what constitutes sexual abuse. In the case of a cisgender woman, her rapist – once convicted – will be sentenced to a minimum of seven years of jail term, which can extend to a life sentence. However, when it comes to a transgender person, the minimum sentence is six months and can extend to a maximum of just two years. This differentiation not only shows unequal treatment towards the trans community but also indicates that the government does not think the impact of sexual abuse on a transperson is as impactful as on a cis gender woman.
The Act does not have any provisions to apprehend those who discriminate against, bully, or harass transgender people at educational institutes, workplaces or anywhere else.
It does not provide any reservations to transgender people, as directed by the Supreme Court, who often come from disadvantaged backgrounds and find it hard to get mainstream jobs or quality education, nor does it have any provisions relating to marriage rights, adoption rights, property rights, social security, or pension. This deprives the transgender community of some of the most fundamental rights.
The day of the passing of the Act has been rightly called as ‘black day’ and ‘gender justice murder day’ as it violates various human rights, the most important being the right to self-determination of the transgender people. It denies the trans community the freedom to express themselves in a way that they want to. It condones violence against them and places them in a very vulnerable position. This Act doesn’t take into account the needs of the transgender community and furthers the perspective of cisgender people of what transgender law should be like.
The law is supposed to protect the rights of all the citizens of the country equally. As a responsible citizen, it is my duty to amplify the muffled voices of my fellow citizens. For them to be heard as equals, the law should uphold their right to self-determination without any conditions and their right to State-support towards health, education and livelihood. Further, the punishment for sexual crimes against the trans persons must be at par with those laid out for crimes against women and strong anti-discrimination provisions and protection against hate crimes should be stipulated. All of these vital amendments must be worked out in consultation with transgender groups and activists who have been at the frontline, suffering through all the hate and prejudice unyieldingly.
I, you and them, are born of the same soil, the soil of India.
 AIR 2014 SC 186.
 “India court recognises transgender people as third gender” available at https://www.bbc.com/news/world-asia-india-27031180 (last visited on May 31, 2020).
 Supra note 2.
 Chapter III of the Transgender Persons (Protection of Rights) Act, 2019.
 “Trans Bill 2019: Why India’s transgender community is opposing a Bill which is supposed to protect their rights” available at https://yourstory.com/socialstory/2019/11/stoptransbill2019-india-transgender-community-rights?utm_pageloadtype=scroll (last visited on May 31, 2020).
 Chapter VIII of the Transgender Persons (Protection of Rights) Act, 2019.
 Supra note 5.