Rights of Transgender in India

The transgenders in India haven’t just had a legal fight to fight but a social fight as well. With society not accepting transgenders and discriminating against them, it hasn’t been an easy journey for them to deal with all the social oppression, mental pressure, physical violence, and more.

As per the Indian Constitution, there are equal rights granted to every citizen of the country and transgender people are entitled to legal protection under the Indian Law. The huge issue that lacks here is the right recognition. Back in the year 2019, the Transgender Person (Protection of Rights) Act, 2019 was enacted that would provide protection and prohibition discrimination in matters of employment, education, and health services for the transgender person along with providing welfare measures that have been adopted to protect the rights of the transgender person. Let’s take a look at the rights of transgenders in India.

Recognition of transgender people as a "third gender"

Transgenders have faced discrimination against their identity and societal acceptance issues in India, leading to the recognition of the "third gender." In the landmark National Legal Service Authority v. Union of India case, the Supreme Court granted them fundamental rights under Articles 14, 15, and 21, affirming their equality and protection. This decision challenged the binary gender concept, upholding their right to self-determined gender identification. The Court's rulings on Article 19(1)(a) and 19(2) protected their gender expression, and Article 21 recognized their freedom to develop their personality without constraints. Mandating a third gender category in official documents and institutions, the Court aimed to counter stigma and ensure equal rights. Ultimately, the Supreme Court's recognition of the "third gender" upheld constitutional rights, urging government recognition and protection for transgender individuals.

Right to self-identification

As per the National Legal Services Authority vs. Union of India, the Supreme Court has held that the self-determination of one’s gender is part of the fundamental right to dignity, freedom, and personal autonomy guaranteed under Article 21 of the Constitution. Further, the Court upheld the right of transgender persons to determine their self-identified gender as a man, woman, or third gender. This would protect their right to live with dignity and respect. 

Right to Equality 

The Transgender Persons (Protection of Rights) Act, Section 18, protects all transgender people from all forms of abuse, including physical, verbal, emotional, sexual, mental, and economic abuse. Violators are subject to fines and imprisonment for terms ranging from six months to two years. 

Right to Education 

Transgender students are frequently refused admission to educational institutions because those institutions do not recognize their gender identities. After the implementation of the Transgender Person (Protection of Rights) Act of 2019, it now mandates that educational institutions that receive government funding or recognition must offer transgender students access to sports, recreation, and education without discrimination. The education of transgender people is just as important as that of people of other genders, whether they are male or female, but the social stigma that transgender people experience reduces their interest in and focus on their studies. 

Right to Employment

Just like in education, even in employment, transgender people have had to face discrimination, leading them to suffer from unemployment and poverty, primarily in the form of harassment, refusal to hire, and invasion of privacy. The implementation of the Transgender Person Protection Act has resulted in the prohibition of government or private organizations from discriminating against transgender people in matters of employment, including recruitment and promotions. It also mandates that each establishment appoint a person to serve as a complaint officer to handle complaints related to the Act. 

It was in the case of Nangai v. the Superintendent of Police that discrimination against transgenders in employment was dealt with. The Hon'ble High Court upheld the petitioner's freedom to select a different gender identity as a third gender in the future based on the medical declaration, and the Hon'ble Court overturned the Superintendent of Police's contested order terminating the petitioner's employment to uphold her legal rights as a transgender person.

Right to Public Facilities

According to the Transgender Persons (Protection of Rights) Act, it is unlawful to refuse transgenders the utilization of public facilities, and on the refusal of public facilities, the penalty of the act can range between two months to six months in prison, along with a fine to be issued.

Right to Residence

According to the Transgender Persons (Protection of Rights) Act, it is unlawful for any family to treat a child differently or to urge them to leave the home. All transgender individuals are entitled to reside in their family's houses and utilize all of the amenities in their family's home without restriction. The competent court must order that a transgender person be placed in a rehabilitation facility if any parent or member of the immediate family is unable to care for them. (Act's Section 12(3))

Right to access healthcare (including hormone therapy and gender reassignment surgery)

Health care for anyone, in general, encompasses a person's full condition of complete physical, mental, and social welfare rather than only the medical treatment involved in the transition, and talking about transgendered people plays a bigger role since they deal with both mental and physical violence by society. 

To protect them and enable them to have happy lives, according to the Transgender Person (Protection of Rights) Act of 2019, the government must make the necessary efforts to provide transgender people with healthcare facilities, which should include separate HIV surveillance centers, sex reassignment surgeries, and full medical insurance. Under this Act, governments are required to make it easier for transgender people to access hospitals and other healthcare facilities, as well as to provide for the coverage of medical costs through a comprehensive insurance program for gender-affirming procedures like hormone therapy, laser therapy, or any other health issues that transgender people may experience. The Act further requires the governments to operate medical care facilities, including for the provision of gender-affirmative surgery and hormonal therapy, counseling before and after gender-affirmative surgery and hormone therapy, and to publish a health manual related to gender-affirmative surgery by the World Professional Association for Transgender People's Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People.

Right to Marry

Since the Hindu Marriage Act, the Special Marriage Act, and the Mohammedan Law, a marriage is legitimate if the partners are of opposite sexes, but the Madras High Court upheld the ground-breaking decision that altered the privileges of transgender marriage under the Hindu Marriage Act. In the case of Arunkumar and another v. the Inspector General of Registration and Ors., the term "bride" might refer to anyone who identifies as a woman or who believes she is a woman, but it still doesn’t include people who don't identify the gender within the gender, and hence, transgender marriage has not been legalized yet.

Right to Adopt Children

Regarding the adoption of children, as of now, third-gender adoptions are not permitted since the Hindu Adoption and Maintenance Act (HAMA) only recognizes adoptions made by men or women as being legal. Adoptions in Hijras based on the custom of reet have also been delegitimized by Sections 4 and 5 of the same Act, which grant overriding powers to the provisions of the Act over customs. Section 41(6) of the Juvenile Justice Act, which states that everyone has the right to adopt and does not expressly refer to simply male or female persons, states that people of the third gender will be able to adopt if they are officially recognized as a pair. If a person satisfies the requirements established by the central adoption resource agency, they may adopt by filing an affidavit in the High Court.

About The Author:

Adv. Edwin Kedasi studied at Osmania University, where he completed a BA LLB and an LLM in Corporate Law. He has obtained an ADR certificate from NALSAR and also work's with qualified advocates. Edwin has been practicing law in Hyderabad since 2006, with the enrollment number TS/1706/06. His practice areas include family cases, matrimonial disputes, police cases in matrimonial disputes, counseling, negotiations, mediation, criminal cases (including bails, writs, and police cases), all kinds of civil cases, matters under Section 138 of the NI Act, NDPS cases, NCLT matters, POSCO cases, accident cases, and providing legal advice and consultation.Adv