Author : Nilakshi Suryawanshi, a student at Dr. Babasaheb Ambedkar Memorial College of Law, Dhule
Abstract
The advancement of transgender rights in India has been significantly shaped by legal developments over the years. Despite social stigma and discrimination, the Indian legal framework has progressively recognized and upheld the rights of transgender individuals. This article delves into the constitutional provisions, landmark judgments, and recent legislative measures that have contributed to the legal protection and empowerment of transgender persons in India.
Constitutional Provisions
The Indian Constitution provides a robust foundation for the protection of transgender rights. Several articles within the Constitution ensure equality, non-discrimination, and dignity for all citizens, including transgender persons:
Article 14: Ensures equality before the law and equal protection of the laws across India. This provision mandates that transgender individuals must receive equal treatment under the law, without discrimination.
Articles 15 and 16: These articles prohibit discrimination on various grounds, including sex. The judiciary has interpreted “sex” to include “psychological sex” and gender identity, thereby extending these protections to transgender persons. Consequently, transgender individuals have the right to employment and equal opportunities without discrimination based on their gender identity.
Article 19(1)(a): Protects the freedom of speech and expression, which includes the right to personal appearance and choice of dressing. This right is subject to reasonable restrictions under Article 19(2), but it ensures that transgender individuals can express their gender identity freely.
Article 21: The right to life and personal liberty has been expansively interpreted to include the right to dignity, which encompasses the recognition of gender identity.
Article 41: Mandates the state to make provisions for securing the right to work, education, and public assistance, particularly for vulnerable sections of society, including transgender persons.
Landmark Judgments on Transgender Rights
The Indian judiciary has played a pivotal role in advancing transgender rights, with several landmark judgments that have significantly shaped the legal landscape:
Naz Foundation v. Government of NCT of Delhi (2009): This case was a landmark in LGBTQ rights, where the Delhi High Court read down Section 377 of the IPC, decriminalizing consensual homosexual acts. Although this judgment was later overturned by the Supreme Court in the Suresh Kaushal judgment (2013), it laid the groundwork for future rulings on LGBTQ rights.
National Legal Services Authority v. Union of India (2014): In this watershed judgment, the Supreme Court recognized transgender persons as a third gender and affirmed their right to self-identify their gender. This case marked a significant step towards legal recognition and protection of transgender rights.
Justice K.S. Puttaswamy v. Union of India (2017): The Supreme Court recognized the right to privacy as a fundamental right under Article 21. This judgment has significant implications for the LGBTQIA+ community, as it reinforces the right to autonomy and protection from state interference in matters of personal identity, including gender identity.
Navtej Singh Johar v. Union of India (2018): The Supreme Court revisited the Naz Foundation judgment and struck down Section 377 of the IPC, decriminalizing consensual same-sex relations. The court emphasized that discrimination based on sexual orientation is violative of the right to equality, privacy, and life.
Arun Kumar v. Inspector General of Registration (2019): The Madras High Court expanded the definition of “bride” under the Hindu Marriage Act, 1955, to include transgender women, thereby recognizing the right of transgender persons to marry under Hindu law.
Anjali Guru Sanjana Jaan v. State of Maharashtra (2021): The Bombay High Court upheld the right of a transgender person to self-identify her gender for the purpose of contesting local elections, reinforcing the right to gender identity.
The Transgender Persons (Protection of Rights) Act, 2019
The enactment of the Transgender Persons (Protection of Rights) Act, 2019, marks a significant legislative step towards the protection and empowerment of transgender persons in India. Key provisions of the Act include:
Definition of Transgender Person: The Act defines a transgender person as someone whose gender does not align with the sex assigned at birth, including trans-men, trans-women, gender-queer individuals, and persons with socio-cultural identities like Hijra.
Certificate of Identity: Transgender persons can apply to the District Magistrate for a certificate of identity, which is issued based on an affidavit and a psychologist’s report without any medical examination.
Prohibition Against Discrimination: The Act prohibits discrimination against transgender persons in areas such as employment, education, healthcare, and access to public services.
Right of Residence: Transgender children cannot be separated from their parents or immediate family on the ground of being transgender, except by a court order.
Employment: The Act mandates non-discrimination in employment and requires establishments to provide facilities for transgender persons and designate a complaint officer for grievance redressal.
Healthcare: The Act mandates the establishment of healthcare facilities for transgender persons, including coverage for sex reassignment surgeries and hormone therapies through comprehensive insurance schemes.
Welfare Measures: The Act obliges the government to take steps to ensure the full and effective participation of transgender persons in society.
National Council for Transgender Persons (NCTP): The NCTP is established to advise the government on policies and programs for transgender persons, ensuring their welfare and inclusion.
Important Schemes
Several government schemes have been introduced to support the transgender community:
SMILE Scheme: A national-level umbrella scheme for the welfare of marginalized individuals, including transgender persons, providing comprehensive rehabilitation and livelihood support.
National Portal for Transgender Persons: A digital platform for transgender persons to apply for identity certificates and access various services without physical interaction.
Garima Greh: Shelters providing basic amenities and skill development support for transgender persons.
PM-DAKSH Scheme: A skill development initiative targeting marginalized communities, including transgender persons.
Sweekruti Scheme: A scheme by the Government of Odisha promoting transgender equality and justice.
Conclusion
Legal advancements in India, including constitutional protections, landmark judgments, and the Transgender Persons (Protection of Rights) Act, 2019, have strengthened transgender rights. While progress has been made, continued efforts are necessary to ensure these legal rights lead to real equality and social acceptance.
Frequently Asked Questions (FAQ)
Q1: What is the legal status of transgender persons in India?
A1: Transgender persons in India are legally recognized as a third gender, with the right to self-identify their gender. They are protected from discrimination under various constitutional provisions and the Transgender Persons (Protection of Rights) Act, 2019.
Q2: What rights do transgender persons have under Indian law?
A2: Transgender persons have the right to equality, non-discrimination, freedom of expression, privacy, and dignity. They are also entitled to legal protection in employment, education, healthcare, and other areas.
Q3: How can a transgender person obtain a certificate of identity in India?
A3: A transgender person can apply to the District Magistrate for a certificate of identity by submitting an affidavit and a psychologist’s report. The certificate is issued without any medical examination.
Q4: What is the role of the National Council for Transgender Persons?
A4: The National Council for Transgender Persons advises the government on policies and programs for the welfare and inclusion of transgender persons. It includes representatives from the government, NGOs, and the transgender community.
