Are Enacting Transgender Laws Enough to Ensure Their “DIGNITY”?


Author: Snehal Rajaram Shinde, Gopaldas Jhamatmal Advani Law College
Linkedin Profile: https://www.linkedin.com/in/snehalshinde1121


To the Point


This article mentions about the definition for transgenders given by the Transgender Persons (Protection of Rights) Act 2019 and also the mention of transgenders in the ancient texts like the Hindu Mythology and Jain Texts. It also mentions about the constitutional provisions of transgenders, their issues like the issue of dignity, prostitution, begging on streets and railway stations or public places and also judicial decisions given in various cases, one of them is the landmark case of the National Legal Service Authority vs Union of India AIR 2014 SC 1863 and the Navtej Singh Johar vs The Union of India AIR 2018 SC 4321. This article also mentions about various schemes made by the government for the transgender persons like the Garima Grih scheme, Sweekruti scheme, the National Council for Transgender Persons. This article questions whether enacting law for transgenders ensure their dignity in the society.


Abstract


This article critically examines whether legal enactments alone are sufficient to ensure the dignity of transgender individuals in India. It explores constitutional provisions, landmark judgments, and legislative measures like the Transgender Persons (Protection of Rights) Act, 2019, highlighting India’s progressive legal recognition of gender identity. However, despite these advancements, societal stigma, exclusion, and lack of real inclusion in education, employment, and healthcare persist. The article underscores the gap between legal rights and lived realities, advocating for mindset shifts, active inclusion, and institutional support to truly uphold the dignity of transgender persons.


Introduction


According to The Transgender Persons (Protection of Rights) Act 2019, Section 2 (k), defined transgender persons as, a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman irrespective of whether or not the person has undergone sex reassignment surgery or hormone therapy or laser therapy or other such therapy. The ancient texts in Hindu mythology, the concept of “tritiyaprakriti” or “napumsaka”, meaning absence of procreation ability. The Jain text also mention about “psycological sex”. Although there are various laws for transgenders, the question whether they live with dignity or not is a issue.


Constitutional Aspect


Dignity is defined by the Supreme Court in its landmark judgement of Meneka Gandhi vs Union of India AIR 1978 SCR (2) 621. It means that every person has right to live with dignified life without discrimination. K.M. Munshi, a member of the Constituent Assembly’s Drafting Committee, explained that the phrase “dignity of an individual” reflects the Constitution’s aim to uplift every person’s quality of life and uphold democratic values. Article 15(prohibition on the basis of caste, race, sex, place of birth) and Article 16 (Equal opportunities in public employment) of the Constitution, also includes “Psychological Sex”. Also, after the K.S. Puttaswamy Judgement vs Union of India (2017) 10 SCC 1, the court gave wide scope to right to dignity. Article 41 of the Directive Principles enjoins the state to make effective provisions for securing the right to work, to education and public assistance.


Judicial Aspect


There are various cases in which the court recognized the rights of transgenders.
The case of Navtej Singh Johar vs The Union of India AIR 2018 SC 4321 decriminalized Section 377 of IPC which criminalized “unnatural offenses”, specifically “carnal intercourse against the order of nature” with any man, women, or animal. The ruled that Section 377 of IPC is violative of Article 14, which states equality before law and equal protection of law. Article 21 includes right to life and personal liberty, which includes right to live with dignity. Therefore, transgenders also have right to live with dignity in the society. Justice Malhotra emphasized that sexual orientation is a form of sexual expression.


National Legal Service Authority vs Union of India AIR 2014 SC 1863-
The bench consisted of Justice K.S. Radhakrishnan and Justice A.K. Sikri. The issues included, whether the transgender persons should be legally recognized, whether the denial of their recognition is violation of there fundamental rights and whether the state is obligated to provide social welfare schemes and legal framework for the transgenders.


The Supreme court gave the verdict that, the transgenders should be recognized as “third gender”. Also not recognizing transgenders is violative of their fundamental rights, Article 12, 14, 15 and 21 of the Constitution. The court recognized the concept of “self-determination” which is included in Article 19 (1) (a), which means every person has right to express himself by the way of gender. Gender-Identity as a part of personal anatomy was established. The court directed the government to treat transgender persons as EWS (Socially and economically weaker sections), also provide reservation for them in education and services of government. They were also directed to provide proper health care facilities for the transgenders, which also includes separate HIV surveillance measures for the transgenders. After this judgement, the Transgender Persons (Protection of Rights) Act 2019 was enacted.


Legislative Provisions


There are various legislative provisions in India relating to safeguarding the rights of transgenders. The “Transgender Persons (Protection of Rights) Act 2019”, mentions about certificate of identity for the transgenders, it also prohibits discrimination against them, it mentions about “right to residence, employment, education and health”. The National Council for Transgender Persons (NCTP) has 5 members from transgender community and 5 experts from non-governmental organizations. Various policies such as “Garima Greh”, which provides shelter homes for transgenders along with food, care and recreational facilities. This scheme also provides capacity-building or skill development programs for transgenders. Currently, there are 12 Garima Greha’s in India. The most inspiring example is set by the government of Odisha, by introducing SWEEKRUTI Scheme, which provides for transgender equality and justice. As of December 2023, Maharashtra has highest number of Transgender Certificates issued, according to data of Ministry of Social Justice and Empowerment. The SMILE scheme is a national level umbrella scheme which includes two sub-sections- Comprehensive Rehabilitation for Welfare of Transgender persons, and Comprehensive Rehabilitation of persons engaged in the act of begging.


Although, there are various schemes and acts provided by the government, yet the transgenders are not respected and treated with dignity by various people. Transgender individuals often face societal prejudice, leading to social exclusion and discrimination in various aspects of life, including employment, healthcare and education. Still a major portion of transgender community is seen begging on the streets. Around 80% of transgenders are either engaged in begging or sex work. There is requirement for inclusion of transgenders in all forms of employment. This can be done by the government, for example, almost 15 years back, there were very few female ticket collectors in government buses. But now, due to involvement of government there are major number of female ticket collectors and we feel normal interacting with them. Similarly, inclusion of transgenders in various public services will normalize this societal stigma.


Conclusion


Recently, the statement by the Donald Trump lead Government in USA, regarding recognition of only two genders, male and female is very disappointing. It violates a person right to choice, right to life and personal liberty. Being, the “so called” largest economy in the world, the USA should set an example for Individual Rights. In this regard, our country is way ahead, by recognizing transgenders rights under Article 21 of the Constitution. This US statement creates a vacuum and an opportunity for India to protect the transgender rights. India sets a great example, by inclusion of transgenders in various fields, like the first transgender judge Hoyita Mondal, first transgender police K. Prithika Yashini, first transgender IAS Officer Aishwarya Rutuparna Pradhan.
Ardhanarishvara is considered a powerful and unique form of Shiva, representing the synthesis of half masculine and half male energies, and equality of male and women. This shows that Hindu mythology holds transgender individuals in a status equal to other genders. Inspite, of the rich heritage of India, the transgenders face exclusion form the society. We have a long way to go. Every individual has right to live with dignity. By changing our mindset and morals, we can really make the “real life” of transgenders as colourful as their flag.


FAQS


1. What does the Transgender Persons (Protection of Rights) Act, 2019 define as a transgender person?
According to Section 2(k) of the Act, a transgender person is someone whose gender does not match the one assigned at birth, including trans-men and trans-women, regardless of whether they have undergone medical procedures like surgery or hormone therapy.


2. What are the key constitutional provisions that protect transgender rights in India?
Articles 14, 15, 16, 19(1)(a), and 21 of the Indian Constitution collectively ensure equality before law, non-discrimination, freedom of expression, and the right to life and dignity. Article 41 also encourages the state to provide for employment, education, and welfare.


3. What were the major outcomes of the NALSA vs Union of India (2014) case?
The Supreme Court recognized transgender persons as the “third gender,” affirmed their right to self-identify their gender, and held that denying them recognition violates fundamental rights. The Court also directed the government to provide reservations, healthcare, and social welfare measures for the community.


4. Despite legal protections, what are the ongoing challenges faced by the transgender community?
Many transgender individuals still face societal stigma, discrimination in employment, healthcare, and education. A large proportion—around 80%—resort to begging or sex work due to lack of inclusion and economic opportunities.


5. What steps has the Indian government taken for transgender welfare?
The government has implemented schemes like Garima Greh (shelter homes with skill development), Sweekruti (transgender equality in Odisha), and SMILE (rehabilitation for trans persons and those involved in begging). The National Council for Transgender Persons (NCTP) also ensures community representation and advocacy.

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