Understanding transgender rights in India

The Transgender Persons (Protection of Rights) Act 2019 and Transgender Persons (Protection of Rights) Rules 2020 came into effect few years ago and marked a significant milestone in India’s long journey towards greater equity and inclusion for the transgender community.

This law defines ‘transgender person’ to mean a “person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone sex reassignment surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta.”

This act and the rules were game changers when it comes to safeguarding the rights of transgender citizens and ushered in a new era of legal recognition, along with the protection and promotion of their rights and interest.

Key legal protections for transgender persons

India has several protective and promotion measures for the welfare of the transgender community.

• The Transgender Persons Act and Rules: The law prohibits discrimination against transgender persons, including in matters relating to education, employment, healthcare services, etc. It also criminalises certain actions against the interests of the transgender persons. The ambit is wide enough to include non-government establishments and even private participants, thereby prohibiting them from engaging in practices discriminative against transgender persons by way of inter alia adopting equal opportunity policy. The Act further grants transgender persons the right to self-perceived gender identity, imposes various obligations on the government to take steps for their full and effective participation and inclusion in society and welfare measures.

• The National Education Policy 2020 (NEP): This includes provisions around the identification of transgender children as socio-economically disadvantaged groups, making them eligible for various benefits (including financial assistance). In addition, the NEP is contemplating the constitution of a ‘Gender-Inclusion Fund’ by the government to enable providing equitable quality education to all girls and transgender students. The funds are to be deployed to assist female and transgender children in gaining access to education, sanitation, bicycles, conditional cash transfers, etc.

• Other measures: The University Grants Commission recognises transgender students as ‘third gender’ for the purpose of scholarships to them. Additionally, the State Policy for Transgenders in Kerala 2015 is an umbrella initiative across departments to promote the interests of transgenders and provide financial support to transgenders. This was implemented by the Ministry of Social Justice & Empowerment during the COVID-19 pandemic.

The Ministry of Social Justice and Empowerment has also formulated the “SMILE - Support for Marginalised Individuals for Livelihood and Enterprise” scheme, which includes a sub-scheme “Comprehensive Rehabilitation for Welfare of Transgender Persons” with a view to rehabilitate and provide medical facilities, education, skill development, economic linkages to transgender persons. The Ministry has also launched a National Portal for Transgender Persons where any transgender applicant can obtain a certificate of identity without any physical interface with the office of issue.

Implementation gaps to be addressed

The Transgender Persons Act can be deemed as the first material legislative action in protecting the rights of transgenders in India. However, there is still room to accelerate the implementation of these measures and bring in some much-needed safeguards. This includes easier access to high quality education, vocational training, financial support for those interested in pursuing entrepreneurship and carving out job opportunities.

Excessive regulation owing to an identity registration regime, surgical requirements for gender recognition in certain cases and discriminatory penal measures for offences committed against transgender persons remain matters which can be revisited through a more inclusive and consultative process.

While the law mandates that healthcare services, including gender reassignment surgery, hormone therapy and counselling be provided to the transgender community, the services may be out of the reach of many. The high cost of such surgical procedures, which can go up to several lakhs of rupees is one hurdle. Another is the requirement of a certificate and identity card from the National Portal of Transgender Persons to avail these healthcare services at government facilities.

Many are not aware of the process or do not have the necessary means and access to be able to fulfil the formalities to obtain these documents. This tends to leave them unable to fully make use of the healthcare benefits that the law provides them.

Societal change and acceptance: the biggest challenge

In 2014, when the Hon’ble Supreme Court of India recognised “third gender” as a category of persons, the judgement opened with the following words: “Seldom, our society realises or cares to realise the trauma, agony and pain which the members of Transgender community undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex. Our society often ridicules and abuses the transgender community and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are sidelined and treated as untouchables, forgetting the fact that the moral failure lies in the society’s unwillingness to contain or embrace different gender identities and expressions, a mindset which we have to change.”

The importance of the aforesaid words cannot be emphasised enough. The last decade has witnessed a surge in the number of laws, proposals and overall welfare measures to safeguard and promote the interest of the transgender community in India. Governments and government affiliated bodies have also embarked on a positive transformation to be more equal and equally accessible. However, laws and welfare measures in matters relating to social change act more as a ’catalyst to change’ than the change itself.

The social stigma, along with problems pertaining to inadequate access to education and limited legal literacy remain stumbling blocks to the overall development and welfare of transgender persons. Even with this backdrop, the winds of change have spoken, are still speaking and are bound to chart the course towards an equal and progressive future.