This article explains the constitutional rights, legal protections, and landmark Supreme Court judgments shaping transgender persons rights in India, while examining persistent social discrimination, welfare measures, and ongoing challenges faced by the transgender community.
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NEW DELHI: In India, transgender persons have long occupied a complex social space, celebrated during weddings and childbirth rituals for their blessings, yet simultaneously excluded from mainstream society. Known variously as hijras, kinnars, aravanis, jogappas, etc, transgender communities have existed in Indian culture for centuries.
However, despite historical recognition, they continue to face discrimination, violence, and denial of basic human rights.
The recognition of transgender persons as a “third gender” by the Supreme Court of India marked a historic turning point in Indian constitutional law. Let’s explore the meaning of transgender identity, historical and mythological recognition, constitutional and legal rights, key judicial decisions, and the Transgender Persons (Protection of Rights) Act, 2019, while addressing ongoing social challenges through this article.
Who Are Transgender Persons?
A transgender person is an individual whose gender identity or expression differs from the sex assigned at birth. This includes:
- Transgender men and transgender women
- Intersex persons
- Genderqueer individuals
- Male-to-female (MTF) and female-to-male (FTM) persons
- Cross-dressers and transsexual persons
Transgender identity is not limited to anatomical differences. It encompasses psychological, emotional, and social aspects of gender identity. Many transgender individuals express their gender through clothing, behavior, or mannerisms that do not conform to traditional male-female binaries.
Transgender Communities in India
India has diverse transgender identities rooted in regional, cultural, and spiritual traditions:
- Hijras – A traditional community often associated with ritual blessings
- Aravanis – Male-to-female transgender persons in South India
- Kothis – Feminine-presenting men who may not identify as women
- Jogappas / Jogtas – Devotees of specific deities in Karnataka and Maharashtra
- Shiv Shaktis – Individuals spiritually married to Lord Shiva
Historically, these communities enjoyed respect and social recognition, especially during the Mughal period and in ancient Indian kingdoms.
Historical and Mythological Recognition of Transgender Persons
Indian mythology and ancient texts acknowledge gender diversity:
- Ramayana: Lord Ram blessed those who were neither men nor women for their devotion during his exile.
- Mahabharata: Shikhandi and Arjuna as Brihannala reflect gender fluidity.
- Jain scriptures recognize the concept of “psychological sex.”
- During the Mughal era, hijras held influential positions in royal courts.
These narratives affirm that transgender identities are not modern constructs but an integral part of Indian civilisation.
Social Discrimination and Human Rights Violations
Despite historical and cultural recognition, transgender persons in contemporary India continue to face widespread social discrimination and serious human rights violations.
From an early age, many transgender individuals are denied access to education due to bullying, harassment, and institutional exclusion, forcing them to drop out of schools and colleges. Discrimination persists in employment, where transgender persons are frequently denied job opportunities, subjected to workplace harassment, or terminated solely based on their gender identity.
Family rejection often leads to homelessness, pushing many into precarious living conditions. Access to healthcare remains limited, as transgender persons encounter stigma, inadequate medical facilities, and lack of trained professionals sensitive to their needs. As a result of systemic exclusion and economic marginalisation, many are compelled to engage in begging or sex work for survival, exposing them to heightened risks of violence and exploitation.
Additionally, transgender persons are frequently subjected to police harassment, arbitrary detention, and physical abuse, further aggravating their vulnerability. Ongoing social exclusion and lack of institutional support have led to disproportionately high rates of mental health disorders, substance abuse, and HIV/AIDS within the transgender community, underscoring the urgent need for inclusive policies and effective legal enforcement.
Recognition of Transgender Persons as the Third Gender
The landmark judgment in National Legal Services Authority v. Union of India (2014) revolutionised transgender rights in India.
Highlights of the NALSA Judgment:
- Transgender persons are legally recognised as a third gender
- Gender identity is based on self-determination, not medical procedures
- Fundamental rights under Articles 14, 15, 16, 19, and 21 apply equally
- Governments must treat transgender persons as socially and economically backward classes
- Directions issued for reservations in education and employment
Justice K.S. Radhakrishnan famously stated:
“Recognition of transgender persons as a third gender is not a social or medical issue but a human rights issue.”
Constitutional Rights of Transgender Persons in India
The Constitution of India guarantees several fundamental rights that equally apply to transgender persons.
Article 14 of the Constitution ensures equality before the law and equal protection of laws to all persons, and the term “any person” has been judicially interpreted to include transgender individuals within its scope.
Article 15 prohibits discrimination on grounds of religion, race, caste, sex, or place of birth, and the Supreme Court has clarified that discrimination based on sex includes discrimination arising from gender identity.
Article 16 further strengthens this protection by guaranteeing equality of opportunity in matters of public employment, thereby affirming that transgender persons cannot be denied employment or promotion solely based on their gender identity.
Article 19(1)(a) protects the freedom of speech and expression, which extends to a transgender person’s right to express their gender identity through dress, appearance, behavior, and mannerisms, subject only to reasonable restrictions under Article 19(2).
Most importantly, Article 21 guarantees the right to life and personal liberty, which the Supreme Court has interpreted to include the right to dignity, privacy, autonomy, and self-identification of gender, making the recognition of transgender identity an essential component of a dignified human existence.
Decriminalisation of Section 377: Navtej Singh Johar Case
In Navtej Singh Johar v. Union of India (2018), the Supreme Court decriminalised consensual same-sex relations by striking down Section 377 of the IPC.
The Court held that:
- Sexual orientation is an inherent part of identity
- Criminalisation violated Articles 14, 15, 19, and 21
- Discrimination based on sexual orientation is unconstitutional
This judgment crucially strengthened the human rights framework for LGBTQ+ and transgender persons in India.
Transgender Persons (Protection of Rights) Act, 2019
The Transgender Persons (Protection of Rights) Act, 2019, effective from January 10, 2020, aims to provide legal recognition, prohibit discrimination and promote the welfare of transgender individuals. Key provisions include:
- Section 2: Definitions (e.g., “transgender person” includes trans-men/women, intersex, gender
queer, hijra, etc., irrespective of surgery). - Section 3: Bans discrimination in education, employment, healthcare, public services,
residence, and movement. - Sections 4-7: Right to self-perceived identity; application for Certificate of Identity (via District
Magistrate); revised certificate post-surgery. - Section 8: Government obligations for welfare schemes, inclusion, rescue, and rehabilitation.
- Sections 9-12: Non-discrimination in employment; designation of complaint officers; right to
family residence. - Sections 13-15: Inclusive education; vocational training schemes; healthcare (e.g., sex
reassignment surgery, counselling, and insurance coverage). - Sections 16-18: National Council for Transgender Persons (advises on policies, monitors
implementation). - Sections 19-20: Offenses (discrimination punishable by up to 2 years imprisonment and fine);
compensation and inspection powers. - Sections 21-24: Rule-making powers; protection for good-faith actions.
While progressive, the Act has faced criticism for procedural hurdles and inadequate enforcement.
Under the Act 2019, specific safeguards are provided in the areas of education, employment, and healthcare to ensure equality and dignity for transgender persons. Educational institutions that are funded or recognised by the government are required to provide inclusive education to transgender students without discrimination, along with equal access to recreational and sports facilities.
In matters of employment, both public and private establishments are prohibited from discriminating against transgender persons in recruitment, promotion, or other service conditions, and are required to put in place grievance redressal mechanisms to address complaints.
With respect to healthcare, the Act obligates the government to ensure access to comprehensive and transgender-sensitive medical services, including gender-affirming care, mental health support, HIV surveillance centres, and coverage of medical expenses through appropriate insurance schemes, recognising healthcare as essential to the physical, mental, and social well-being of transgender persons.
Transgender Persons (Protection of Rights) Rules, 2020
The Transgender Persons (Protection of Rights) Rules, 2020, were introduced on September 25, 2020, to implement the provisions of the Act. Under Rule 11(5), every state is required to establish Transgender Protection Cells to monitor offences against transgender persons and ensure prompt registration, investigation, and prosecution of such cases.
Rule 10(1) mandates the formation of Transgender Welfare Boards (TWBs) to safeguard the rights and interests of transgender persons and to facilitate their access to welfare schemes and benefits.
Initiatives by the Government
The Government of India, through the Ministry of Social Justice and Empowerment, has introduced several initiatives to protect and empower transgender persons. The National Council for Transgender Persons, formed in 2020 and reconstituted in 2023, advises the government on policies, monitors welfare schemes, coordinates with departments and NGOs, and addresses grievances.
The National Portal for Transgender Persons allows online applications for identity certificates and benefits. The Department of Social Justice and Empowerment has also issued an Equal Opportunities Policy to ensure non-discrimination in employment.
A key welfare program is the Support for Marginalised Individuals for Livelihood and Enterprise (SMILE) Scheme (launched in 2022), which supports the rehabilitation and socio-economic integration of transgender persons. It offers vocational training, scholarships, healthcare coverage through Ayushman Bharat TG Plus, and shelter facilities through Garima Grehs. The scheme also establishes Transgender Protection Cells at the district level to monitor offences, ensure timely FIR registration, and conduct sensitisation programmes.
Conclusion
India has made important legal and policy progress in protecting the rights of transgender persons, particularly through the Transgender Persons (Protection of Rights) Act, 2019, and supportive schemes like SMILE and Garima Greh. These reforms have strengthened legal recognition, welfare measures, and social protection for the transgender community.
However, despite improved visibility and activism, full social acceptance is still lacking, and discrimination continues to affect daily life. Therefore, true progress requires not only legal safeguards but also a change in societal attitudes to ensure dignity, equality, and inclusion for transgender individuals. The government’s ongoing awareness campaigns and capacity-building efforts aim to promote understanding and integration, but continued commitment is needed to ensure that transgender persons can live with autonomy, respect, and equal opportunities.
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