INTRODUCTION

Transgender individuals can be people of all ages or sex whose appearance, attributes, or
practices vary from generalizations about how people are 'assumed' to be. Each culture, race, and
class marked the existence of the Transgender individuals since the first account of human life.
The term 'transgender' emerged in the mid-1990s from the elementary network of the sexual
orientation of diverse individuals. As per the dictionary meaning of the word ‘Transgender’, it
means a person who does not identify with conventional gender roles or identities. American
Psychological Association defines, “Transgender is an umbrella term for persons whose gender
identity, expression or behavior does not conform to that typically associated with the sex to
which they were assigned at birth.”
UNAIDS published a report in 2014 on transgender people, mentions that persons of transgender
community have gone through abuses in which 65-85% of people through verbal abuse, 25-45%
have faced physical and almost 20% were abused sexually1. According to The Los Angeles
Transgender Health Study, overall 80% transgender person suffered verbal abuse and about 50%
of them subjected to physical abuse2. Many of them, as compared to the general population,
experienced abuses from cradle to grave in a higher percentage3. It clearly questions their
recognition as a third gender. Further analysis is done in this paper on the proper gender
recognition and self-determination of transgenders.

In 2014, a landmark decision of Supreme court which marked a significant victory for
transgender's community, National Legal Services Authority v. Union of India and Others4,in
this recognizing transgenders as ‘third gender’, ruled that transgender individual has a right of

1
U.N.A.I.D.S., The Gap Rep. 2014, U.N.A.I.D.S/J.C.2656,
http://files.unaids.org/en/media/unaids/contentassets/documents/unaidspublication/2014/UNAIDS_Ga
p_report_en.pdf.
2
Reback C.J., Simon P.A., Bemis C.C. &GatsonB.,. 2001.The Los Angeles Transgender Health Study: Community
Report,https://static1.squarespace.com/static/5a1dda626957daf4c4f9a3bb/t/5acfa341562fa7b5ec5db914/152355723
6754/Reback_LA+Transgender+Health+Study_2001.pdf.

3
M. Michelraj,Historical evolution of transgender community in India,4 A.R.S.S. 17, (2015).
4
(2014) 5 S.C.C.438.
self-determination of gender (male or female or third gender) and are empowered to
constitutional protection of right to equality, right against discrimination, speech and expression,
dignity as enumerated in chapter III. Judicial activism paved the way for the transgender
community, in the current milieu, as the Supreme Court, decriminalized homosexuality in Navtej
Singh Johar v. Union of India5 and struck down the provision of section 377 of the Indian penal
code. The Supreme Court has taken a progressive step and cherished the status of transgenders.
In Navtej Singh Johar, the Supreme court while inlaying the curves of privacy and criminalizing
homosexuality, considered the footprints of Puttaswamy dictum6, and observed: “self-
determination includes sexual orientation and declaration of sexual identity”. The substance of
individual autonomy has been appropriately established and contemplated in the opinions of the
regarded Judges.

This paper seeks to critically examine two things firstly, judicial process of the NALSA judgment
which deliberated on the rights of transgenders and directed the government to comply with the
given direction and secondly, a Bill named as Transgender Person (Protection of Rights) Bill
2018, was passed by Loksabha.

History of transgenders in India

Transgender community includes persons with different social identity known as Hijras,
Eunuchs, Kothis, Aravanis, Jogappas, Shiv-Shakti etc, who have been a part of Indian society
for centuries. The Vedic and Puranic literature mention “Tritiya-Prakriti” meaning the third
gender and “napunsaka” meaning someone with the loss of procreative ability. The word “hijra”
used in the Indian language appears to be derived from the Persian word hiz, i.e., someone who
is effeminate and/or ineffective or incompetent7. The very idea of Hijras and different
Transgenders in India is definitely not a new term; they have been perceived in our history also.

5
(2018) 10 S.C.C. 1.
6
(2017) 10 S.C.C. 1.
7
Mark S. Friedman, Michael P. Marshal, Thimas E. Guadamuz, Chongyi Wei, Carolyn F. Wong, Elizabeth M.
Saewyc& Ron Stall, A meta-analysis of disparities in childhood sexual abuse, parental physical abuse, and peer
victimization among sexual minority and sexual nonminority individuals, 101 Am. J. Public Health 1481, (2011).
The transgender community has marked their significance since ancient era. In the epic
“Ramayan” it is mentioned that Lord “Ram” while leaving for exile after being banished from
“Ayodhya” for a long time, Among his devotees, the “hijras” alone chose to remain with him.
Amazed by their devotees, “Ram” sanctioned them the ability to give a benediction on
individuals on occasions of childbirth and weddings. furthermore, in the custom of “Badhai”
hijras sing, dance and confers blessings. Trans individuals also played a significant role in the
courts of the Islamic rulers, specifically during the Mughal period in Medival India. However,
with the advent of British rule, The presence of Transgenders in the public sphere was
considered as deviance in the ‘colonial space’. In the late 19th century, the Indian penal code was
enacted which criminalized all non-penile-vaginal sexual act through section 377. Under British
administration enacted statute branded transgenders as ‘habitual criminals’ and ‘sexual
deviants.’8We have historical sources of colonial period as a record, one such case of federal
court where a eunuch was accused of singing in public and dressed like a woman. The police
subjected the accused to a medical examination and booked him for unnatural intercourse.9

After independence in 1952, the criminal tribes act 1871 was called off by stating ‘a blot on free
India’. But the social status of transgenders was still on the same line. A transgender lives a life
which is socially, culturally, economically and politically secluded. According to the census of
2011, half of a million individuals identified as transgenders and literacy rate of their community
was only 46% whereas, 74% of people are literate in the general population.10 PUCL in its report
of 2001, presented several instances of police atrocities, social ostracism, sexual assault and
discrimination against the marginalized section of society and sexual minorities in India11

8
Criminal Tribes Act, No. xxvi of 1971, INDIA CODE (1871).
9
Queen Empress v. Khairati, I.L.R. 6 A.L.L. 204.
10
Provisional Population Tables: India: Census 2011, Office of the Registrar General & Census Commissioner,
India, http://censusindia.gov.in/2011-prov-results/prov_rep_tables.html.
11
P.U.C.L.-K., Bangalore, Human Rights Violations Against Sexual Minorities in India, (2001),
https://archive.nyu.edu/bitstream/2451/33911/2/sexual%20minorities.pdf.
The NALSA judgment

The NALSA judgment gained rapid media coverage and consciousness of activists included
directives for the legal recognition of transgender individual identities and the provision of
reservations in matters relating to employment jobs and education.12 National Legal Service
Authority of India, constituted by the “Legal Service Authority act,1997” authorized to provide
free legal service to weaker and marginalized section of society, filed a writ petition for
transgenders right.
In 2014 a two-judge bench of Supreme Court of India passed a milestone judgment, maintaining
the privileges of the transgender community. In this judgement for the first time, formal effort
made by apex court in a long over-due acknowledgement recognizing transgenders as a ‘third
gender’ and affirmed that the transgender individuals have the right to self-determination of
their gender (whether male or female or third gender) and declared further, they are entitled to all
constitutional protection of rights i.e. right to equality, right against discrimination, freedom of
expression, right to live with dignity and all rights available to an individual enumerated in part
III of constitution.

In this case, there was nine directives given by the apex court for the protection of the
transgender community. Thereby, Central and state government directed to make provision for
legal recognition of transgender as male, female or ‘third gender’ and to provide recognition of
self-identified gender.
Further, directed to make provision for reservation as of backward class in matters relating to
education and for public employment and also directed to come with social welfare scheme to
provide separate medical facilities in hospitals and HIV Sero-surveillance centers as they are
prone to sex-related issues. In addition to it, directives include separate public toilets and to
encourage public awareness for social equality and to respect the dignity of the transgender
community in the fabric of society, which was deprived and neglected for centuries.

The supreme court adopted a liberal judicial interpretation process through which it has come to
explain the development to an extent to substantive freedom enjoyed by citizens.

12
National Legal Services Authority v. Union of India, (2014) 5 S.C.C.438.
Moreover, the court has conceptualized the importance of the transgender rights while
adjudicating upon other matter pertaining to lives of transgenders, justice K.S. Radhakrishnan
and Justice A.K. Sikri written text which runs long in one hundred and thirty pages gave their
respective opinion which can be divided into different heads.

Recognition of the third Gender under the Law

The social importance of the term ‘gender’ become apparent just a couple of years back when
‘sex’ started being perceived as the natural constituent of sex character and ‘gender’ was
recognized as a socially developed concept.13
The crest of NALSA decision is the recognition of transgenders as ‘third gender.’ The Court
defines the word ‘transgender’ as an ‘umbrella term’ which includes having variant into the
category of ‘third gender’. The question, who is a transgender? a wide connotation is given in
Justice Radhakrishnan’s text in judgment, “Transgender is generally described as an umbrella
term for persons whose identity, gender expression or behavior does not conform with their
biological sex”, this does not exactly specify the term ‘transgender’ but it may include hijras
(who is neither male or female), pre-operative or post-operative transsexual people who undergo
‘sex reassignment surgery’ “to align their biological sex with their gender identity in order to
become male or female and transvestites who like dress in clothing of opposite gender.”14
Court further stated that, “kothis”, “aravanis”, “jogtas”, “shiv shakti” are also come within the
term ‘transgender.’ In justice Sikri’s opinion a narrower meaning given to the term ‘transgender’
particularly for hijras,15 the narrower approach adopted by Madras High court, where police
department denied employment to a ‘female-to-male transgender’ for the post of women
constable, in jackuline Mary v. supertendent of Police16,held that‘Female to male’ does not
comes within the ambit of ‘transgender’, it only applies to ‘male to female,’ it excludes a large
number of person of their community despite a wide interpretation of NALSA case.

‘Principal Self-Determination’ & ‘gender identity’ & ‘sexual orientation’

13
Judith Butler, Sex and Gender in Simone De Beauvoir's Second Sex, 72 Yale F.S. 35, (1986).
14id at 12. ,
15
id.
16
Wp No. 587 of 2014, ORINAM, (madras high court)
The supreme court placed reliance on ‘Yogyakarta principal’ and made a clear line of distinction
between ‘sexual orientation’ and ‘gender identity’. The observation made by justice
Radhakrishnan under a title named “Gender Identity and Sexual Orientation”, tried to
characterize and noted that
“Gender identity is one of the most fundamental aspect of the life, it refers to each person’s
deeply internal and individual experience of gender, which may or may not correspond with sex
assigned at birth, including personal sense of body which may involve a freely chosen,
modification of bodily appearance or function by medical, surgical or other means and another
expression of gender. sexual orientation refers to an individual’s enduring physical, romantic or
emotional attraction to another person”
Further, the court expended the horizons of Fundamental rights by upholding the right to self-
determination of gender and enumerated as directives in the judgment17. Right to self-
determination infers that the individual has a right to determine his identity of gender
irrespective of “assigned sex” and “physical form of transition.” J. Radhakrishnan observed that
“each person has self-defined sexual orientation and gender identity which is an integral part to
their personality and is one of the most basic aspect of self-determination, dignity and
freedom”18However, the principle of self-determination, recognized in judgment suffers from
inconsistent construction and limitation, in several ways. several scholars have pointed out the
opinion given by judges in the case is that “hijras to be treated as third gender” for purpose of
protection of their rights and on the other hand it also affirms the principle of ‘self-determination
of gender’ which reflects free will to choose one’s gender. Furthermore, apart from ‘third gender
recognition’, ‘self-determination principal’ have another lacuna in judgment that is, through
reference external test and verification of gender identity by state agencies. the judgment is
ambiguous over the manner of external certification and legal recognition of gender. 19 Although
the judgment gravitates towards bolstering ‘self-determination principal’ but directing state
agencies to figure out gender identity, somewhere deters its veracity.

Providing reservation to the transgenders

17
id at 12.
18
id.
19
Aniruddha Dutta, Contradictory Tendencies: The Supreme Court NALSA Judgement on Transgender Recognition
and Rights, 5 J.I.L.S. 225, (2014).
In 2013, Expert committee on issues relating to transgenders reflected the necessity of
educational opportunities in its report and it emphasized upon bolstering and sensitizing the
educational system on the issues relating to discrimination and stigmatization of transgenders20.
Reservation can be considered as a progressive step to eradicate the existing discrimination faced
by the people of the community of transgenders and liberate them from the stigma of social and
cultural stereotyped society.

In light of the judgment, the court extended the protection of constitutional provision under
articles 15 and 16 to persons of the transgender community for prohibition of discrimination on
grounds of sex. Transgenders granted the same status as ‘backward class’ for the purpose of
reservations. State and central government directed to treat them as “socially and educationally
backward classes” (SEBCs) and to provide them reservation on the same line as available to
“Other Backward Classes” (OBCs). While providing reservation the court observes: “TGs have
also not been afforded special provisions envisaged under Article 15(4) for the advancement of
the socially and educationally backward classes (SEBC) of citizens, which they are, and hence
legally entitled and eligible to get the benefits of SEBC. The state is bound to take some
affirmative action for their advancement so that the injustice done to them for centuries could be
remedied. TGs also entitled to reservation in the matter of appointment, as envisaged under
Article 16(4) of the Constitution. The state is bound to take affirmative action to give them
decent representation in public services. Articles 15(2) to (4) and Article 16(4) read with the
Directive Principles.”21
However, the problem arises due to the inclusion of transgenders within the dimension of
SEBCs. Historically, the paragon for determining SEBCs was on basis of caste but Social
marginalization of transgenders is purely based on gender, no other factor is relevant for their
marginalization such as caste. This new criteria to determine SEBCs may create difficulty
because of plurality in the forms of gender variant.

The Transgender Persons (protection of rights) Bill, 2018

20
Report of expert committee on the issues relating to the transgenders, Ministry of Social Justice and
Empowerment, http://socialjustice.nic.in/writereaddata/UploadFile/Binder2.pdf.
21
id at 12.
After NALSA decision, which was a significant institutional development for the rights of
transgenders, the first legislative effort made in regard in 2014 and later, in 2016 and subsequent
revisions but failed to achieve their goals. For social, educational & economic empowerment of
the transgender community, the foundation stone of its legislative recognition was for the first
time kept by an altruistic person TiruchiSiva, a Rajya Sabha M.P. as a private member bill
named as The transgender person(protection of rights) Bill 2014. The scrutiny of the bill clears
that it only follows the partial mandate of NALSA judgment. Later, Ministry of social justice and
empowerment presented transgender person (protection of right bill)2016 which was not more
than a dire crafted piece of paper for trans community. The entire manual was subsisted of
offenses against trans individuals. It vanquished their right to determine gender and authorizes
district committee comprising of doctors, psychiatrist, social workers etc.

Afterward, the parliamentary sitting committee. Later which by making 27 amendments in

transgender Persons(protection of rights) Bill 2018 passed in Lok Sabha and is under due
consideration in Rajya Sabha.

The scope of this paper will be limited to a critique of the provisions of the Bill which is still to
be passed by Rajya Sabha. Despite amendments in Bill of 2016, 2018 bill suffers from several
lacunas, even if the definition of ‘transgender’has been improved in the new bill, but the
inclusion of all ‘person with intersex variations’ as transgender is ambiguous for the purpose of
interpretation.
A discourteous provision of the 2018 bill, deprives the right of self-identification of gender
which is recognized as one of the mandates of NALSA judgment. As per the provision of the bill,
a certification of identification of gender needs to be obtained to be acknowledged as
transgender, by making an application to screening committee setup up at the district level,
comprising of five persons in a psychiatrist and a medical officer. Further, it also mandates sex
reassignment surgery for a transgender to be identified as male or female. This amounts to a
blatant violation of decision of NALSA case which notes that“any procedure for identification of
transgender persons’ which goes beyond self-identification, and is likely to involve an element of
medical, biological or mental assessment, would violate transgender persons’ rights under
Article 19 and 21 of the Constitution”
Another draconian provision contained in Bill, criminalizing begging may impact negatively on
the life of transgenders in Indian as most of the persons their community dependent on begging
by way of singing and dancing in public. Recently, Delhi High Court criticized the
criminalization of act of begging and declared the Bombay Prevention of Begging act,1959
unconstitutional in case of Harsh mander v. Union of India and noted that "Begging is their last
resort to subsistence; they have no other means to survive."22
transgenders, the Indian penal code contains rape law only for the protection of women and
inflict 7 years of imprisonment. However, a person can be punished in case of a sexual offense
against them for ‘sexual abuse’ which inflicts punishment only 2 years of imprisonment. This is
gross discrimination for the community of transgenders. After decriminalization of consensual
homosexuality under section 377 of IPC, they are prone to be used as a tool to harassment.
In addition to its flaws, the Bill is totally silent on the provision of reservation in matters of
education and employment which was given in NALSA case directives.
As the transgender community has invariably been assumed as a non identical part of society and
they never got the decent equitable status which as compared to the binary genders, even today
in current bill it can be clearly observed that they are not getting a proper legislation for their
protection from the atrocities which they face somewhere or the other. The community which
has always faced ill-treatment & has never been provided space in framing the policies for their
community and their problems of which they are well cognizant of.

The concept of the national council for transgender is cited under the bill. This initiative by the
central government can be considered as a visionary step towards fostering transgender
community in terms of formulation of policies, program, equality etc, through national council
activities of governmental and non-governmental organization can be surveilled and there sleek
running can be facilitated. But still, the chapter also bears a flaw, that there is no specific council
at District and State Level. It creates a doubt that whether the effective sanction of this part of the
bill is possible or not.

Considering the above shortcomings, it can be concluded that the Bill has failed to address the
problems of the transgender community and it needs to be called off. The government should

22
2018 S.C.C.OnLine Del. 10427.
come with a better model which protect their rights as per directives of NALSAcase and also in
consonance with mandates of Navtej sing johar v. Union of Indi23a.

CONCLUSION / SUGGESTION

Throughout the whole paper the author has discussed the historical background, current

scenario and the challenges faced by the trans community in this heterogeneous society which

considers only binary genders. International organizations and developed countries like USA and
UK, have taken a progressive approach towards the trans community in terms of recognition as
the third gender and providing them the basic human rights. By analyzing their position in India
it has been observed that they still are struggling for their recognition as the third gender,
equality,

education, reservation, employment etc, in order to attain the general rights which people

belonging to binary gender enjoy. But here the question arises that if they get legal recognition

will it assure their acceptance to the family of which they are born. That the country judiciary

has taken a positive initiative for the welfare of the committee but in order to enforcement of

there rights proper substantial legislation is with the proper regulating authority under the three

tier of democracy. In order to make the bill more affective, the regulating authorities should
provide a right of self-identity if the intention of the bill is to facilitate the transgender
community the determination of the identity should not be restricted to some other authority to
decide it should be ones own discretional choice.

Can we imagine if the proposed Bill is enacted and consequently, challenged on the ground of
constitutionality, in what words court will reply to it? The reference can be taken from the words
J. Indu Malhotra while reading down section 377, “History owes an apology to the members of

23
(2018) 10 S.C.C. 1.
this community and their families, for the delay in providing redressal for the ignominy and
ostracism that they have suffered through the centuries.”24

24
id at 5.