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 transgender people, mentions that persons of transgender
community have gone through abuses in which 65-85% of people through verbal abuse, 25-45%
faced physical and almost 20% were sexually abused1. 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 childhood to the rest of their lives 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 its comparison with international standards.

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
self-determination of gender (male or female or third gender) and are entitled to constitutional
protection of right to equality, right against discrimination, speech and expression, dignity as

1
The gap report 2014. Transgender people. UNAIDS / JC2656 ISBN 978-92-9253-062 4. Available at:
http://www.unaids.org/sites/default/files/media_asse t/08_Transgenderpeople.pdf

2
Reback CJ, Simon PA, Bemis CC, Gatson B. The Los Angeles Transgender Health Study: Community Report. 2001.

3
Michelraj M Historical evolution of transgender community in India Asian Rev Soc Sci 2015;4:17-9
4
2014) 5 SCC 438
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 read down the provision of section 377 of the Indian penal code. The
Supreme Court has taken a progressive step and respected the status of transgenders. InNavtej
Singh Johar, the Supreme court while inlaying the curves of privacy and criminalization of
homosexuality, discussed the impact of Puttaswamy dictum6, and observed: “self-determination
includes sexual orientation and declaration of sexual identity”.Thus, the substance of
individualism and autonomy have been appropriately established and reflected 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
20018, was passed by Loksabha.

History of transgenders in India

Transgender community includes 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 incompetent 7. The very
idea of Hijras and different Transgenders in India is definitely not a new term; they have been
perceived in our history also. Despite the fact that the greater part of the eunuchs seen today, are
asking at traffic signals or weddings.

6
(2017) 10 SCC 1

1. Reback CJ, Simon PA, Bemis CC, Gatson B. The Los Angeles Transgender Health Study: Community
Report. 2001.
2. Friedman MS, Marshal MP, Guadamuz TE, Wei C, Wong CF, Saewyc E, et al. A meta-analysis of
disparities in childhood sexual abuse, parental physical abuse, and peer victimization among sexual
minority and sexual nonminority individuals. Am J Public Health. 2011;101:1481-94
The transgender community has marked their significance since ancient era. It was said that Lord
Rama, in the epic Ramayana, was leaving for the backwoods after being expelled from the
kingdom for a long time, pivots to his adherents and asks every one of the people to go back to
the city. Among his devotees, the hijras alone don't feel bound by this heading and chose to
remain with him. Awed with their dedication, Rama sanctions them the ability to give
endowments on individuals on events like childbirth and marriage, furthermore, it is trusted set
phase for the custom of badhai in which hijras sing, dance and confers blessings. Trans
individuals also played an important role in the Royal courts of the Islamic world, specifically
during Mughal rule in Medival India. However, with the advent of British rule, the presence of
Transgender 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 repealed by stating ‘a blot on free
India’. But social status of transgenders was still on the same line, which is socially, culturally,
economically and politically excluded. According to the census of 2011, half of a million
individuals identified as transgenders and literacy rate was only 46% whereas, 74% of people are
literate in the general population.10

8
Criminal Tribes Act, 1871
9
Queen Empress v. Khairati [I.L.R. 6 ALL 204], decided on 31 January, 1884.
10
Office of the Registrar General & Census Commissioner, India http://censusindia.gov.in/2011-prov-
results/prov_rep_tables.html
The NALSA judgment

The NALSA judgment gained rapid media coverage and consciousness of activists included
directives for the legal recognition of transgender persons' identities and the provision of
reservations in jobs and education11.
National Legal Service Authority constituted by Legal Service Authority act,1997 authorized to
provide free legal service to weaker and marginalized section of society, filed writ petition.
Another petitioner was an organization for women welfare named Poojya Mata Nasib Kaur ji.
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 overdue acknowledgement of recognizing transgenders as a ‘third
gender’ and affirmed that the transgender persons have the right to self-determination of their
gender (whether male, 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 were nine directive given by the apex court for the protection of 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 seprate medical facilities in hospitals and HIV Sero-surveillance centers as they are
prone to sex-related issues. In addition to it directives includes separate public toilets and to
encourage public awareness for social equality and to respect the dignityof the transgender
community in fabric of society, which were deprived and neglected for centuries.

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

11
National Legal Services Authority v. Union ofIndia, (2014) 5 SCC 438.
Moreover, the court has conceptualized the importance of the transgendersrights 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 third Gender in 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 socially developed concept.12
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 variant into the category of
‘third gender’. The question, who is a transgender ? a wide connotation given in Justice
Radhakrishnan’s text in judgement, “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.”13
Court further stated thatkothis, aravanis, jogtas, shivshaktisalso comes within the term
‘transgender.’ In justice Sikri’s opinion a narrower meaning given to the term ‘transgender’
particularly for hijras,14 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 Police15,held that‘Female to male’ does not
comes within the ambit of ‘transgender’, it only apply to ‘male to female,’ it excludes a large
number of person of their community despite a wide interpretation of NALSA case.

Self Determination of gender identity and sexual orientation

12
Judith Butler, Sex and Gender in Simone De Beauvoir's Second Sex, 72 YALE F.S 36 (1986)

13Para 11 of mmn
,
14
Para 111.
15
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’. Observation made by justice Radhhakrishnan
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 other
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 right to self
determinationof gender and enumerated as directives in the judgement16. Right to self-
determination infers that, individual has right to determine his identity of gender irrespective of
‘assigned sex’ and‘physical form of transition.’J. Radhakrishnan observed that “each person self
defined sexual orientation and gender identity is integral part to their personality and is one of
the most basic aspect of self-determination, dignity and freedom”17However, the principle ofself-
determination, recognized in judgement 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 affirm the principal of ‘self-determination of gender’ which reflects free will to
choose one’s gender.Furthermore, apart from ‘third gender recognition’, ‘self-determination
principal’ have other lacuna in judgement that is,through reference external test and verification
of gender identity by state agencies. the judgement is ambiguous over the manner of external
certification and legal recognition of gender.18 Although the judgement gravitate towards
bolstering ‘self-determination principal’ but directing state agencies to figure out gender identity,
somewhere deters it’s veracity.

Providing reservation to the transgender

16
17
Para25
18
Aniruddha Dutta , contradictory tendencies: the supreme court NALSA Judgement on Transgender Recognition
and Rights 5, journal Indian law and society 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 transgenders 19.
Reservation can be considered as a positive step to counter the existing discrimination faced by
the members of the community of transgenders and liberate them from the religious, social and
cultural stigma.

In light of the judgement, the court extended the protection of articles 15 and 16 to persons of
transgenders community, prohibiting discrimination on grounds of sex.Transgenders granted
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. 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. State is bound to
take affirmative action to give them due representation in public services. Articles 15(2) to (4)
and Article 16(4) read with the Directive Principles.”20
However,the problem arise due to inclusion of transgenders within the ambit 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.

Bill for transgenders right

19
Report of expert committee on the issues relating to the transgenders.
20
para 60
After NALSA decision, which was a significant institutional development for the rights of
transgenders, 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
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
transgender person(protection of rights) Bill 2014. The scrutiny of the bill clears that it only
follows the partial mandate of NALSA judgment. Though the 2014 bill was unanimously passed
by the Rajya sabha but still in queue to be presented in Lok Sabha. Later Ministry of social
justice and empowerment presented transgenders 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 offences against trans individuals. It vanquish there right to determine gender and
authorizes district committee comprising of doctors, psychiatrist, social workers etc.

Afterwards, error of the bill leads it towards the analyses by 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. All we can say that 2018
bill is a pesky amended text which is minimized in context of law, as bestowed by the supreme
court on the grounds which can be easily spotted at its directives, namely (a)acceptance of third
gender under the law (b) Self-determination (c) reservation in education and employment
(d)Medical benefits (e) welfare policies (f) admittance.

The scope of this paper will limited to critique of the provisions of the Bill which is still to be
passed by Rayasabha. Despite of amendments in Bill of 2016, 2018 bill suffer from several
lacunas, even if the definition of ‘transgender’has been improved in new bill which seeks to
include persons with social identity as kinnar, arvani, jogta, hijra but 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 recognizedand one of the mandate of NALSA judgement. As per the provision of the
bill, a certification of identification of gender need to be obtained to be acknowledged as
transgender, by making an application to screening committee setup up at district level,
comprising of five persons in a psychiatrist and a medical officer. Further, it also mandate sex
reassignment surgery for a transgender to be identify as male or female. This amounts to 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, criminalising 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 Indiaand noted that "Begging is their last
resort to subsistence; they have no other means to survive."21
transgenders, the Indian penal code contain rape law only for protection of women and inflict 7
years of imprisonment. However, a person can be punished in case of sexual offence against
themfor ‘sexual abuse’ which inflicts punishment only 2 years of imprisonment. This is a gross
discrimination for the community of transgenders. After decriminalization of consensual
homosexuality under section 377 of IPC, they are prone to be used as 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.
What bill promises that if the trasn children distress family solicitude then they will be fling to
rehabilitation where they will be no less than in a detainmented position rather than being
rehabilitated and it will also galvanize family as well as society to instigate the discrimination for
trans community and make them feel like a part of segregate society.

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 there problems of which they are well cognizant of.

21
2018 SCC OnLine Del 10427, dated 08-08-2018]
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 surveil and there sleek
running can be facilitated. But still chapter also bears a flaw, that there is no specific council at
District and State Level. It creates a doubt that whether effective sanction of this part of bill is
possible or not.

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

Can we imagine if the proposed Bill is enacted and consequently, challenged on ground of
constitutionality, in what words court will reply to it? The reference can be taken from the words
J. Indu Malhotra while reding down section 377, “History owes an apology to the members of
this community and their families, for the delay in providing redressal for the ignominy and
ostracism that they have suffered through the centuries.”22

CONCLUSION / SUGGESTION

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

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

considers only binary genders. International organizations and developed countries like USA,UK

have taken a progressive approach towards the trans community in terms of recognition as third

gender and providing them the basic human rights. By analyzing there position in India it has

been observed that they still are struggling for their recognition as 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

22
Navtej Singh Johar and Ors. vs. Union of India (UOI) and Ors.
have taken a positive initiative for the welfare of the committee but in order to enforcement of

there rights a 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 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.

The landmark judgement on transgender community has changed their status in legal sphere but
the bitter reality of the transgenders will be remain same due to stigmatization and stereotyping
prevailing in society. A cohesion need to established