Introduction
Transgenders in India have long been subjected to systemic discrimination, violence, and social exclusion. Despite the historical and cultural presence of the transgender community—known as Hijras, Aravanis, Jogappas, and by other regional names—the legal and societal frameworks failed to protect their dignity, rights, and identity for decades. The journey from marginalisation to limited legal recognition has been arduous, marked by social movements, judicial pronouncements, and legislative developments. This article examines the victimisation faced by transgenders in India, the evolution of protective laws, key judicial decisions, and the continuing challenges they face in accessing justice and equality
Meaning of ‘Transgender’
Transgenders are individuals whose gender identity does not conform to the sex assigned at birth. This broad term includes people who identify as trans-men, trans-women, genderqueer, non-binary, intersex, or those who fall outside the traditional male-female binary. The Transgender Persons (Protection of Rights) Act, 2019 defines a transgender person as someone whose gender does not match the gender assigned at birth and includes intersex variations, genderqueer individuals, and persons with socio-cultural identities such as Hijra and Kinnar.
Nature and Forms of Victimisation
Despite legal recognition, the transgender community continues to suffer multilayered victimisation in various spheres:
- Social Ostracisation – Many transgender individuals are abandoned by their families or forced to leave their homes, depriving them of basic rights to shelter, education, and emotional support.
- Economic Discrimination – Transgender persons face discrimination in employment, lack of skill development opportunities, and exclusion from the formal workforce. Many are forced into begging or sex work.
- Violence and Abuse – They are frequent targets of physical assault, sexual abuse, and harassment by both private individuals and state actors like police.
- Healthcare Neglect – Discrimination in hospitals, absence of gender-affirming services, and lack of psychological support contributes to poor health outcomes.
- Educational Marginalisation – Transgender students often face bullying, lack of sensitisation in educational institutions, and dropout due to non-inclusive environments.
Historical Context and Cultural Recognition
Indian culture historically acknowledged the presence of third genders. Ancient texts like the Kama Sutra, Mughal literature, and temple sculptures depict the presence of people beyond the male-female binary. During the Mughal era, Hijras were respected as royal eunuchs. However, colonial laws like the Criminal Tribes Act, 1871 labelled them as “criminals by birth,” institutionalising discrimination which continues to impact societal attitudes even today.
Key Legal Provisions and Developments
1. The Transgender Persons (Protection of Rights) Act, 2019
This is the primary legislation protecting transgender rights in India. Key features includes:
- Right to self-perceived gender identity
- Prohibition of discrimination in education, employment, healthcare, public services, etc.
- Certificate of Identity to be issued by a District Magistrate (although subject to medical examination for gender change, which has been criticised)
- Welfare measures including provisions for housing, healthcare, and skill development
- Offences and Penalties for discrimination, abuse, and sexual violence against transgender persons
Criticism: The Act has been heavily criticised for being regressive in certain aspects. The requirement of a certificate undermines the right to self-identification, and the punishments prescribed for crimes against transgenders are often less stringent than those for similar crimes against cisgender individuals.
2. Indian Penal Code (IPC) and Criminal Law Reforms
The IPC does not specifically recognise transgenders, but recent interpretations have attempted to make it more inclusive:
- Section 354A to 376D deal with offences like sexual harassment, assault, and rape. However, the current legal interpretation of rape under Section 375 IPC still excludes transgender victims, as it is gender-specific to women.
- Criminal Law (Amendment) Act, 2013 post the Nirbhaya case did not account for sexual violence against transgender persons.
- There is a demand for gender-neutral laws, especially in the context of sexual violence.
Key Judicial Decisions
1. NALSA v. Union of India, (2014) 5 SCC 438
This landmark judgment by the Supreme Court of India was a turning point in recognising transgender rights.
- Legal recognition of the third gender was upheld as a constitutional right.
- Declared the right to self-identify as male, female, or third gender.
- Directed governments to treat transgenders as Socially and Educationally Backward Classes (SEBCs) for affirmative action.
- Recognised the right to dignity, privacy, and freedom of expression under Articles 14, 15, 16, 19, and 21 of the Constitution.
This judgment laid the foundation for further legal reforms and became a cornerstone of transgender jurisprudence.
2. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1
This historic decision decriminalised consensual same-sex relations by reading down Section 377 IPC.
- It reaffirmed the rights of LGBT+ persons to dignity, equality, and privacy under Article 21.
- Although not exclusively about transgenders, it reinforced constitutional protections for them and rejected moral policing.
3. National Legal Services Authority v. Union of India, Compliance Orders
Post-NALSA, various High Courts have issued orders for compliance. For example:
- Madras High Court directed sensitisation of police and judiciary on transgender rights.
- In Arun Kumar v. Inspector General of Registration, 2019, the Madras High Court held that a marriage between a man and a transwoman is legally valid under the Hindu Marriage Act, 1955.
Constitutional Safeguards
Transgender individuals are entitled to the same fundamental rights as other citizens:
- Article 14: Equality before the law and equal protection of the laws.
- Article 15 & 16: Prohibition of discrimination on the grounds of sex (interpreted to include gender identity).
- Article 19(1)(a): Freedom of expression, including gender expression.
- Article 21: Right to life and personal liberty includes the right to dignity, privacy, and health.
International Developments and India’s Obligations
India is a signatory to several international human rights instruments that emphasise non-discrimination:
- Universal Declaration of Human Rights (UDHR)
- International Covenant on Civil and Political Rights (ICCPR)
- Yogyakarta Principles: Although non-binding, these principles affirm legal standards for the protection of LGBT+ rights.
Challenges and Gaps in Implementation
Despite legal recognition, the ground reality reflects persistent issues:
- Lack of awareness among law enforcement and judiciary leads to continued abuse.
- Inadequate implementation of welfare schemes meant for transgender persons.
- Social stigma still leads to denial of housing, education, and employment.
- No gender-neutral rape laws – Transgender persons often find it difficult to register FIRs for sexual violence.
- Healthcare neglect – Hormone therapy, gender affirmation surgeries, and mental health support remain expensive and inaccessible.
Recent Positive Developments
- The National Council for Transgender Persons (NCTP) was established in 2020 to advise the government and monitor implementation.
- Several state governments (Kerala, Tamil Nadu, Karnataka) have launched transgender welfare policies, including pensions, identity cards, skill development, and separate clinics.
- Inclusion in Civil Services and Jobs: The UPSC and other public bodies have begun allowing transgender applicants under a third gender category.
Suggestions for Reform
- Gender-neutral laws for sexual assault and domestic violence.
- Reservations in education and employment as directed in NALSA.
- Simplified procedure for gender recognition without medical certification.
- Sensitisation training for police, judiciary, and public servants.
- Legal aid services tailored for transgender persons.
- Robust anti-discrimination law encompassing gender identity.
- Recognition of marriages, adoptions, and inheritance rights for transgender persons.
Conclusion
The victimisation of transgenders in India is a grim reality rooted in colonial history, societal prejudice, and systemic neglect. However, the legal landscape is slowly evolving, driven by a proactive judiciary and incremental legislative steps. The journey toward equality and dignity for transgender individuals is far from over, but the legal recognition of their rights is a critical milestone.
The fight now must focus on translating legal rights into social realities—through awareness, empathy, affirmative policies, and inclusive governance. A just society must ensure that every individual, irrespective of their gender identity, lives free from fear, discrimination, and indignity. It is not just a legal necessity but a moral imperative enshrined in the Constitution of India.
Contributed by: Urvashi Bansal (Intern)