Transgender Equality: Court Decision on Transgender Rights in India

The jurisprudence of transgender rights is largely based on NALSA in 2014, and other court judgments have extended the reach of fundamental rights as laid down in this case. This was followed by the enactment of Transgender Persons (Protection of Rights) Act, 2019 and the Transgender Persons (Protection of Rights) Rules, 2020.

In NALSA, the Supreme Court expanded “sex” in Article 15(1) to include both gender and gender identity and prohibited discrimination on the grounds of gender identity and sexual orientation. The Court affirmed that every individual has a constitutional right to determine their gender identity as per Articles 14 and 15(1), and broadened the interpretation of Articles 19(1)(a) and 21 to include a person’s right to express their gender.

Under Section 7 of the Transgender Persons Act, 2019, gender recognition is a two-step process: a trans person needs to apply for recognition as ‘transgender’, followed by medical documents that request a change of gender identity. As it mandates a two-step process, failing to acknowledge the Supreme Court’s NALSA ruling, this provision faced strong criticism from the transgender community and activists.

The right to privacy was deemed to be constitutionally protected as per the Supreme Court in Retd. Justice K S Puttaswamy v. Union of India (2017). This was further extended in Navtej Johar v. Union of India (2016), where same-sex relations were decriminalised and Section 377 of the Indian Penal Code was held unconstitutional.

In Mulla Faizal v. State of Gujarat (1999), the High Court of Gujarat distinguished between intersex and transgender persons and imposed a duty on authorities to facilitate the correction of name and gender in birth certificates. The case of Arunkumar & Others v. The Inspector General of Registration (2019) recognised that transgender individuals have the right to marry based on their self-identified gender, linking this right to Article 21 of the Constitution. However, the Supreme Court later, in Supriyo v. Union of India (2023), ruled that the right to marry is not a fundamental right for transgender persons, though it clarified that transgender people in heterosexual marriages must be acknowledged under current laws.

Due to the binary understanding of gender within Indian penal laws, transgender individuals frequently face denial of legal protection. The Transgender Persons (Protection of Rights) Act, 2019, identifies specific offences and criminalises various forms of abuse – including physical, emotional, and sexual violence. Courts have ruled that laws addressing sexual violence and harassment must be applied inclusively and should not exclude transgender persons from their protection.

In Ms. X v. State of Uttarakhand (2019), the court recognised the right to self-identify gender based on an individual’s inner identity or ‘psyche,’ even within criminal law. The judgment also affirmed that offences such as rape apply to transwomen. To address existing legal gaps, the Madras High Court in M. Srinivasan v. State upheld the right to self-identification and confirmed that sexual harassment laws extend to all individuals who identify as women.

Section 3 of the Transgender Persons Act, 2019, prohibits discrimination against transgender individuals in educational settings, while Section 13 mandates that state-funded or recognised institutions provide inclusive education. However, despite the Supreme Court’s directive in NALSA to classify transgender persons as socially and educationally backward and grant them reservations, such provisions remain largely unimplemented.

The Supreme Court in NALSA also instructed the central and state governments to develop social welfare programs aimed at improving the lives of transgender people. Under Section 8 of the Transgender Persons Act, 2019, the government is required to implement these welfare initiatives and ensure transgender persons can access them. Although some states have set up Transgender Welfare Boards, access to welfare schemes has been limited. Many states lack such programs entirely, and the inclusion of transgender individuals in pension schemes for vulnerable groups has often only been achieved through judicial intervention.

Focus and Factoids by Prathima Appaji.

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