Introduction
‘All human beings are born free and equal in dignity and right’ . Including transgender people who face numerous difficulties like social exclusion discrimination , violence , health care problems and denial of fundamental freedoms despite the presence of various laws made to work in their welfare . Therefore recognizing and protecting transgender rights as human rights remains essential for achieving equality , dignity and justice .
Apprehending Transgender Identity
Gender is the social expectations regarding behaviour considered as appropriate for the members of each sex . However transgender people are characterized by gender dysphoria i.e; they are unable to relate themselves to the gender assigned at birth often feeling trapped between differing biological and psychological sexes. People may identify as male, female, both, neither or elsewhere on the gender spectrum .They often option for transition termed as M2F or F2M i.e; Male to Female or Female to Male due to painful experience of being in a transitory position. However adopting this method does not guarentee societal acceptance. Indian society has long recognized communities such as Hijras, Kinnars , Aravanis, Jogappae.
Transgender Rights as Human Rights
Transgender Rights stem from Human Rights i.e; those fundamental rights belonging to every person. The idea for protecting the rights of the transgender persons is not only by guaranteeing civil rights but also protecting them against the barbaric and inhumane elements in the society that threatens their exsistence and shuns them into a life full of dullness. Person with transgender identities also deserve to live and flourish in their communities with freedom to learn , work , love , play and build lives crowded with others at home , in the work place and in public setting without fear for their safety and survival .Human Rights principles requires states to treat all individuals equally and with dignity. Therefore, government must protect transgender persons rights . Consequently protecting transgender rights strengthens the broader framework of human rights.
Constitutional and Legal Framework
Providing a robust doctrinal foundation for transgender rights under the Indian constitutional framework is thus a necessary, and perhaps urgent measure.
We have education in our data, we were all fed on Article 14 which prohibits arbitrariness from state action. It is well-established that arbitrariness contravenes equality under the Constitution, according to rulings by the Supreme Court. The exclusion of transgender persons from legal recognition and social welfare schemes therefore violates Article 14.
Discrimination on the basis of sex is prevented by Article 15. In NALSA, the Court expanded the definition of “sex” to incorporate gender identity and psychological sex. This understanding broadens constitutional protections beyond biological determinism.
Freedom of expression is protected under Article 19(1)(a). It has also acknowledged that expression includes the expression of gender identity by means of dress, behaviour and personal presentation.
Article 21 is the most solid legal pillar. Article 21, as laid down by the Supreme Court has interpreted to include dignity, privacy, autonomy over one own body and identity. In the case of Justice K.S. Puttaswamy v Union of India, 1 the Court held privacy to be a fundamental right flowing from autonomy and dignity. This rationale is one that directly supports the protection of gender identity
Landmark Judgments
Judicial decisions have played a decisive role in shaping transgender rights.
In National Legal Services Authority (NALSA) v. Union of India, the Supreme Court of India recognised transgender persons as a third gender and affirmed their right to self-identify their gender. The Court held that gender identity is an essential part of dignity, autonomy, and personal freedom under Article 21, and that discrimination on this basis amounts to discrimination on the ground of “sex” under Article 15. This judgment is significant for transgender rights as it constitutionally protects self-determined gender identity and laid the foundation for legal recognition and equality of transgender persons in India.
In Justice K.S. Puttaswamy (Retd.) v. Union of India, the Supreme Court held that the right to privacy is a fundamental right under Articles 14, 19, and 21 of the Constitution. It recognised privacy as an essential part of dignity and personal autonomy, protecting an individual’s freedom to make intimate and personal choices, including those relating to identity and sexual orientation. The judgment is significant for firmly establishing privacy as a fundamental right and strengthening constitutional protection of autonomy, dignity, and individual identity.
The case of Navtej Singh Johar v. Union of India involved a challenge to the constitutional validity of Section 377 of the Indian Penal Code, which makes it a crime for persons of the same sex to engage in consensual sexual activity that is regarded as being “against the order of nature,” i.e., sodomy. In reaching its conclusion that Section 377 violates Articles 14, 19 and 21 because it discriminated against same sex relationships by treating them in an arbitrary manner, section 377 failed to differentiate between consensual and non-consensual acts and perpetuated the stereotype that LGBTQI people are not entitled to dignity and equality, the Supreme Court of India held that sexual orientation is an essential element of an individual’s identity. Furthermore, the Supreme Court of India recognized that a person has the right to privacy, dignity, and autonomy to determine their partner. As a result, the Supreme Court unanimously struck down section 377 and decriminalized the consensual sexual relations of adults of the same sex and, therefore, protected the rights of LGBTQI persons to equality, liberty and protection under the Constitution.
Together, these judgments establish a consistent constitutional trajectory toward recognition and protection of transgender identity
Legislative Developments
There is still no complete legislative framework for India, even though there is some judicial recognition.
The only legal framework available currently is the Transgender Persons (Protection of Rights) Act, 2019. The Act includes prohibitions against discrimination in education, employment, health care and access to public services. However, in order to establish legal recognition of gender, an individual must present a certificate of identity issued by a District Magistrate. This requirement has been heavily criticized for being contradictory to NALSA, which recognized the principle of “self-identification” as the basis for a person’s gender identity. The Act also has very poor enforcement mechanisms and ambiguity regarding reservation policies for transgender persons despite an order from the Supreme Court of India stating that there must be reservations for them.
The rules issued for implementing the Act will help implement its provisions; however the implementation of the Act is hampered by administrative and procedural delays.
Although there has been some progress through judicial decisions, legislative developments lag behind significantly and are not always aligned with the way the Constitution has been interpreted by Indian Courts
Challenges in Implementation
Transgender individuals in India continue to grapple with large issues even with legal protection against discrimination from the Indian Constitution– especially related to their ability to earn a living through work
The vast majority of Indians do not want to employ a transgender individual, and therefore transgender individuals can often find it difficult to obtain an income. Moreover, most transgender individuals can neither obtain affordable and appropriate medical care through the public healthcare system nor will they even visit a hospital or doctor because they fear being treated poorly.
The behaviours and attitudes that transgender individuals continue to experience illustrate an enormous disparity between constitutional rights and the day-to-day experiences of transgender individuals in India.
Criticisms and Legal Loopholes: Analysis and Evaluation
Opponents of transgender rights in India argue that implementing transgender rights will be difficult. Proponents of this view believe that many people will claim to be transgender when they are not and that this can create difficulties defining people as either male or female.
While the Indian courts acknowledge the difficulty in implementing transgender rights, their view is that this is not sufficient justification for infringing on transgender rights. The Supreme Court has consistently ruled that the need to be treated with dignity, and the ability to make choices and decisions for oneself, outweighs the need for strict adherence to legal requirements. The Supreme Court also places significant value in the protection of transgender rights.
The argument that some individuals will attempt to pose as transgender is not supported by empirical evidence. Furthermore, the argument does not consider that in many circumstances the law provides for individuals to make representations about their identity and their transgender status based on personal knowledge. The law provides trust in individuals representing their identity whether they are a transgender individual or not.
Some people are also worried about what happens when transgender rights conflict with peoples rights in places like prisons, workplaces and sports teams. The law in India deals with these conflicts by finding a balance between rights than saying that one group of people like transgender people cannot have any rights at all. The law in India wants to make sure that everyones rights are respected, including transgender rights.
There is a problem with the Transgender Persons Act, which says that transgender people need to get a certificate to prove who they are than just being able to say who they are and that they are transgender. This goes against what the courts have said is right for transgender people. It makes it harder for India to follow its constitution and support transgender rights.
The real problem is not with what the constitution says about transgender rights. The real problem is, with how the government puts these rules into practice and makes sure they are followed to support transgender rights. Transgender rights are the issue. The law needs to support transgender rights and make sure that transgender people are treated with dignity and respect.
Suggestions
India must align its laws with the principles laid down in the NALSA judgement.
First the Transgender Persons Act should allow people to decide their legal gender without needing certificates from authorities.
The State should also make sure that transgender people get a chance in education and jobs as directed by NALSA.
Third India needs to strengthen its laws, against discrimination and set up courts or complaint systems to help transgender people.
Fourth the government should make sure that transgender people can get the healthcare they need within the health system.
Training programmes should be introduced for police, judges and government officials so they. Respect the rights of transgender people.
These changes will help make sure that the rights of transgender people are fully protected.
Conclusion
Transgender rights in India are based on the countrys laws Articles 14 ,15, 19 and 21. The Supreme Court has stated that Transgender peoples gender identity is a part of being treated with dignity and respect and having the rights as everyone else.
The courts have made it clear that Transgender rights are important. However the government has not done a job of putting these ideas into action. There is still a difference between what the law says and what actually happens in the case of Transgender rights.
The Indian constitution already says that Transgender rights are rights that everyone should have. Now the focus should be on making sure these Transgender rights are actually respected. The way Transgender people are treated shows how well the country is doing at living up to its values and treating everyone fairly. This is especially important, for Transgender rights. The country needs to do when it comes to Transgender rights.
Author: Omja Jaiswal
1st Year Undergraduate Law Student
University of Allahabad, Prayagraj
