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Journal of Law Research International Journal of law and
legal jurisprudence studies

Ҳуқуқий тадқиқотлар
журнали Журнал Правовых ISSN 2348-8212 www.ijlljs.in 144
исследований ISSN: 2181- :Volume 4 Issue 4
9130 www.tadqiqot.uz №5
Special issues 2017
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CIVIL AND POLITICAL RIGHTS OF TRANSGENDERS IN
INDIAN CONSTITUTIONAL PRESPECTIVE
Sourav Agarwal1
ABSTRACT
The notions to secure to its citizens of Justice, Equality and Unity have been the prime
motto of the government. This article throws light on the status of transgenders in
India, in the background of the courts having acknowledged the travesty of their
being, and despite being sympathetic to them to the extent of even affording
recognition, have been unable to ensure a dignified existence to them.
The article analyses the statutory provisions that have not been sufficient to protect
their rights which results in the violation of their basic fundamental rights. The
intervention of the judiciary has been felt in realizing the rights of these communities
and protecting them. The role played by the government of Tamil Nadu is much
appreciated. The same is discussed herein-below by the researcher along with the
recent developments after the verdict of the Supreme Court declaring “third gender”
rights.
INTRODUCTION
“Sex is what you are born with, gender is what you recognize and sexuality is what
you discover.” – A. Chettiar2
Discrimination of the transgender has become common, due to their weak economic
position they commonly engage themselves into prostitution in order to earn their
livelihood. The status of these communities during the Mughal Period where they
1
Department of Law, University of North Bengal
2
Anitha Chettiar, “Problems Faced by Hijras (Male to Female Transgenders) in Mumbai with
Reference to Their Health and Harassment by the Police” 5 IJSSH 752 (Sept. 2015), available at:
http://www.ijssh.org/papers/551-W10007.pdf (last visited on Nov. 28, 2016). The stated line was a
comment made by the hijra respondents of the study undertaken by the said author.
© Universal Multidisciplinary Research Institute Pvt Ltd

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were respected and honored has completely changed. The British criminalized these
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communities and today they live as sex workers and beggars where they are often
humiliated. There is not much which is done for transgender in a country lie India
where they are alienated and isolated from the society; they are denied the basic and
fundamental rights which they are entitled to as citizens of India.
“After I was raped, the officer told me that I got what I deserved.”3
Transgender individuals and communities face many barriers to full acceptance in

society. One of the issues that have been receiving growing attention is the experience
of discrimination that transgender individuals face when they interact with the
criminal justice system.4 It is generally observed that in present circumstances, there
are three basic kinds of exclusions of Transgender in India:-
1. Exclusion from Social and Cultural Participation (Social Exclusion) –

a. Exclusion from family and society
b. No protection from violence
c. Limited entry in education sector , health services and public spaces
2. Exclusion from Economy (Economic Problem) –

a. Exclusion from economy
b. Exclusion from livelihood and employment opportunities
3. Exclusion from Citizen Participation (Political Status) –

a. Limited entry to collectivization
b. Limited rights to citizenship
c. Limited right to participation in community decision making process
Though, the situation has changed after the honorable Supreme Court judgment in
2014, the perception of Indian society mindset and their behavior towards
Transgender has not changed much.
CONSTITUTIONAL LAW AND JURISPRUDENCE
3
Available at: http://www.transequality.org/issues/resources/national-transgender-discrimination-
survey-full-report (last visited on Mar. 26, 2017).
4
Available at: https://docs.google.com/document/d/14ZKcBIJBR1DpXDoM_IWWgQrdkSlcrEZUpP
vqz0gc63o/edit (last visited on Mar. 26, 2017).

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The idea of Fundamental Rights was first conceptualized in the Bill of Rights of the
‘
American Constitution5 and has been adopted into the Indian one. Preamble to the
Constitution of India6 mandates Justice - social, economic, and political, equality of
status. In essence, the Constitution of India is sex blind, that is to say, the basic
premise of equality is based on a Constitutional mandate that the sex of a person is
irrelevant save where the Constitution itself requires special provisions to be made for
women.7
 Right to Equality
The Constitution provides every person an equal status before the law and an
equal protection of laws within the territory of India. The word „any person‟ here
means every individual, without any discrimination based on any of the category
which includes, caste, creed, religion, sex, etc.
A transgender in India is included within the words „any person‟ and is given
equal status to that of every cis-gender in India.8 The transgender community
cannot be discriminated on the ground of non-application of any of the laws
within the nation by reason of their differences and dividing them based on any
arbitrary class.
In National Legal Service Authority v. Union of India,9 the interpretation of the

word person was widened and was held that Article 14 of the Indian Constitution
does not restrict the word „person‟ and its application only to male or female.
Hijras/transgender persons who are neither male/female fall within the expression
„person‟ and, hence, entitled to legal protection of laws in all spheres of State
5
Bill of Rights of the United States of America (1791). The first 10 amendments to
the Constitution make up the Bill of Rights. Written by James Madison in response to calls from
several states for greater constitutional protection for individual liberties, the Bill of Rights lists
specific prohibitions on governmental power. Other precursors to the Bill of Rights include English
documents such as the Magna Carta, the Petition of Right, the English Bill of Rights, and the
Massachusetts Body of Liberties. Available at: https://www.billofrightsinstitute.org/founding-
documents/bill-of-rights/ (last visited on Mar. 17, 2017).
6
The Constitution of India - Preamble.
7
The Constitution of India - Article 15.
8
National Legal Service Authority v. Union of India, AIR 2014 SC 1863 at 1890 para 54.
9
Id.

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activity, including employment, healthcare, education as well as equal civil and
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citizenship rights, as enjoyed by any other citizen of this country.
The transgender community falls within the purview of the Constitution of India
and thereby they are entitled to all the rights as guaranteed under the same.
 Equality of Opportunity and Right against all forms of Discrimination
The key word with regard to the protection of Transgender is the word „sex‟. The
interpretation of the word „sex‟ includes these communities irrespective of them
falling under the category of male or female.
The Apex Court of India in a landmark case10 observed that both gender and
biological attributes constitute distinct components of sex. Biological
characteristics include genitals, chromosomes and secondary sexual features, but
gender attributes include one‟s self image, the deep psychological or emotional
sense of sexual identity and character.
The discrimination on the ground of „sex‟ under Articles 15 and 16 of the Indian
Constitution includes discrimination on the ground of gender identity. The
expression „sex‟ is not just limited to biological sex of male or female, but
intended to include people who consider themselves to be neither male or female.
Articles 15(2) and 16(4) has also been interpreted to provide social equality to
these communities such as equality in public employment, it provides that the
states shall have the power to make any special provision for the upliftment of
these vulnerable minority who are now included within the category of socially
and educationally backward classes.11
These Articles read with the Directive Principles of State Policy and various
international instruments to which India is a party, call for social equality, which
the transgenders could realize, only if facilities and opportunities are extended to
them so that they can also live with dignity and equal status with other genders.
10
Id.
11
Poonam Verma, Sorrows of Transgenders, Judiciary and our Society – A Study, 52(3) IBR 147
(2015).

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 Fundamental Freedom
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All the basic values of privacy, self-identity, autonomy and personal integrity are
the basic and fundamental rights which are guaranteed to the members of the
transgender community under Article 19(1)(a) of the Constitution of India and the
State is bound to protect as well as recognize the rights of the citizens.
Article 5 of the Indian Constitution12 identifies the persons who are entitled to be
citizens of India. None of the conditions specified therein require a determinate
sex or gender identity as a pre-condition of acquiring citizenship. Therefore, a
transgender has the right to express his feelings, his behaviour and personality
towards the society and the state has the duty to protect it. The state cannot restrict
this expression being a part of the fundamental right.
 Right to Life
The right to choose one‟s own identity is one of the most essential right under this
article to life with dignity13, and this aspect is covered and protected by this
Article as it symbolizes the most important right being a human, a right to live,
which the State is required to protect from violation.
The transgender communities have a right to dignified life which is one of the
most important aspects of Article 21 of the Constitution of India. Recognition of
gender identity provides the recognition of their right to dignity and non-
recognition violates the same, they have full right to express and live their life
without fear. Also, the right to reputation14 extends to their protection.
Transgenders in our society have not been seen with respect, they are often
humiliated and beaten up by the authorities in power their reputation in the society
has degraded and their significance in the society has been deteriorated.
 Right against Exploitation

12
The Constitution of India - Article 5.
13
I.R. Coelho v. State of Tamil Nadu, A.I.R. 2007 S.C. 861. See also Francis Corali v. Union Territory
of Delhi, A.I.R. 1981 S.C. 1675. The Court held that the right to life includes the right to live with
human dignity and all that goes with it, namely the bare necessities of life.
14
See State of Maharashtra v. Public Concern for Governance Trust, A.I.R. 2003 S.C. 223. The Court
held that a good reputation was an element of personal security and was protected by the Constitution,
equally with the right to the enjoyment of life, liberty and property.

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Various inhuman acts such as human trafficking and beggary are declared as an
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offence and punishable according to law. The scope of Article 23 of the
Constitution of India is very wide as it includes within any form of discrimination
which are forbidden. Immoral activities such as prostitution are usually seen down
in the society.
Everyone has a right to personal development, and this could be secured only
when there exists a right against exploitation which creates a free environment for
an individual. Transgenders are the worst victims of exploitation, due to their
degraded economic status they indulge into prostitution and other immoral
activities and are usually seen as taboo by the society. The intention behind this
Article is to secure independence of an individual identity by preventing
exploitation of men by men.
LEGAL PROVISIONS
The enactment of different laws by the legislature is the outcome of constitutional
provisions which provides legal sanctity by way of establishing the right in favour of
this class. The relevant Acts which establish the identity of this class though not
specifically are discussed below.
The Citizenship Act, 1955 which provides for the acquisition and determination of
Indian Citizenship also does not, expressly or impliedly require a determinate sex or
gender identity as a pre-condition for acquiring citizenship. 15 For a person to be a
voter (elector), he/she has to be a citizen of India. The Election Commission of India
has taken special measures to enroll the transgender persons as electors.
The definition of „person‟ under the General Clauses Act, 1897 is couched in even
wider terms. The Act defines a person to 'include any company or association or body
of individuals, whether incorporated or not'. 16 Though Section 13 of the Act stipulates
that words importing the masculine gender17 shall be taken to include females, this
stipulation is itself conditioned by the statutory direction that this is so unless there is
anything repugnant in the subject or context.
15
The Citizenship Act, No. 57 of 1955, available at: http://indiacode.nic.in.
16
The General Clauses Act, No. 10 of 1897, Section 3(39), available at: http://indiacode.nic.in.
17
The General Clauses Act, No. 10 of 1897, Section 13, available at: http://indiacode.nic.in.

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A harmonious reading of the Constitutional provisions set out hereinabove as well as
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the provisions of the Citizenship Act, 1955 and the General Clauses Act, 1897 would
show that in fact there is no conflict or limitation imposed on the concept of 'person'
by any of these laws and a Transgender person would undoubtedly fall within the
definition of 'person'.
Interestingly, the Registration of Births and Deaths Act, 1969 doesn‟t mention
anything about „sex‟/ „gender‟ of a person to be registered in case of birth or death. 18
The Act is gender neutral. The requirement of indicating the sex/gender of a person in
case of a birth or death in the Birth or Death certificate, as the case may be, doesn‟t
seem to flow from the provisions of the Act itself. Such a requirement may have been
put in the formats of such certificates prescribed in the Rules under the Act, which are
made by the States.
Most of the protections under the Fundamental Rights Chapter are available to every
person with some rights being available only for the citizens of India. The
identification on the basis of sex is a crucial component of identity.
The main problems that are being faced by the transgender community are of
discrimination, unemployment, lack of educational facilities, homelessness, lack of
medical facilities like HIV care and hygiene, depression, hormone pill abuse, tobacco
and alcohol abuse, problems related to marriage and adoption.
ACCESS TO JUSTICE
The America is celebrating the decision of the US Supreme Court in Obergefell v.

Hodges,19 on the other hand, India despite being world‟s largest constitutional
democracy, are still grappling in the heteronormative caves of undermining
alternative sexualities.20
18
The Registration of Births and Deaths Act, No. 18 of 1969, available at: http://indiacode.nic.in.An
Act to provide for the regulation of registration of births and deaths and for matters connected
therewith.
19
135 S Ct 2584 (2015).
20
Shilpa Khatri Babbar, The Socio-Legal Exploitation of the Third Gender in India, ISOR-JHSS, Vol.
21 Issue. 5, Ver. 04 (May, 2016).

Special issues 2017
In Jayalakshmi v. State of Tamil Nadu,21 Pandian, a transgender, was arrested by the
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police on charges of theft. He was sexually abused in the police station which
ultimately led him to immolate himself in the premises of the police station.
Similarly, policemen arrested Narayana, a transgender, in Bangalore on suspicion of
theft without informing him of the grounds of arrest or extending any opportunity to
him to defend himself. His diary was confiscated by the police and he was threatened
with dire consequences if he did not assist in indentifying other transgenders he was
acquainted with. Homosexuals have also been at the aggrieved end of financial
extortion by the police in exchange for not revealing their identities to society.
In today‟s date, the laws that cause a great harm to this transgender community is
Section 377 of the Indian Penal Code, 1860 and the Immoral Traffic Prevention Act,
1986.
Immoral Traffic Prevention Act (ITPA), 1956 (amended in 1986) is the principal
instrument which prevents the trafficking of women and children into prostitution.
With the Amendment of 1986, the scope and ambit of the Act now became applicable
to both male and female sex workers and also to those whose gender identity was
indeterminable. Thus, both male and hijra sex workers became criminal subjects of
the ITPA and it provided the legal basis for arrest of the transgender sex workers
population.
The offence of sodomy was first introduced in India through the Act for Improving
the Administration of Criminal Justice in the East Indies. In 1837, a Draft Penal Code
was prepared where Clauses 361 and 362 dealt with „Unnatural sexual offences‟
which were later incorporated in Section 37722 as a part of the Indian Penal Code
under offences with respect to human body and under a separate heading of
„unnatural offences‟.
Section 377 of the Indian Penal Code, 1860 was drafted by Lord Macaulay. This
provision provides the punishment for the prosecution of certain kinds of sexual acts
deemed to be unnatural. The natural presumption in case of a homosexual or a hijra is
21
Jayalakshmi v. State of Tamil Nadu, (2007) 2 SCC 1.
22
The Indian Penal Code, No. 45 of 1860, Section 377, available at: http://indiacode.nic.in.

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drawn that they are engaging in acts against the order of nature. It is clear that this
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Section has been frequently used to harass and exploit homosexuals and transgender
persons. Surprisingly, the Indian Council for Medical Research (ICMR) and Indian
Medical Association (IMA) have not yet framed any guidelines for Sex Reassignment
Surgery (SRS).
From the numerous instances of abuse and violence against homosexuals and
transgender, it is evident that Section 377 of IPC has been totally misused to cause
great harm to such community.
Another notable example is Section 45 of the Army Act, 1950 which penalizes
indecent acts which would possibly include the acts of transgender community. 23 It is
also to be noted that in India sexual minorities have no freedom to form association or
union.
The sexual minority is not a recognized person for the purpose of insurance claims,
compensation24 and nomination for the purpose of gratuity benefits. The reality is
that, the transgender community in India lives in a precarious environment dominated
by oppression, discrimination and systematic exclusion. It cannot be forgotten that
discrimination is antithesis of equality and that it is the recognition of equality which
will foster the dignity of every individual.
JUDICIAL ROLE IN PROTECTION OF THE RIGHTS OF TRANSGENDER

IN INDIA
With the advent of the contemporary epoch, the movement against the repressive and
oppressive nature of Section 377 grew exponentially and it was finally on July 2, 2009
that the Delhi High Court passed a judgment in favor of the LGBT‟s in the landmark
judgment of NAZ Foundation v. Government of N.C.T Delhi25 (hereinafter referred to
as the NAZ Foundation case), declaring Section 377 of the Indian Penal Code, 1860
which criminalizes homosexuality in India to be unconstitutional and violative of
23
The Army Act, No. 46 of 1950, Section 45, available at: http://indiacode.nic.in.
24
The Workmen‟s Compensation Act, No. 8 of 1923, available at: http://indiacode.nic.in.
25
2010 Cri LJ 94.

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Articles 14, 15 and 21 and read down the section, allowing consensual sexual activity
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between two homosexuals above 18 years of age.
The matter went to appeal to the Supreme Court of India in Suresh Kumar Koushal
and another v. NAZ Foundation and Others26 where the Supreme Court struck down
the decision by the High Court in the NAZ Foundation Case.
Justice Singhvi said that Section 377 of the Indian Penal Code does not suffer from
any constitutional infirmity and left the matter to the competent legislature to consider
the desirability and legitimacy of deleting the Section from the statute book or altering
the same to allow consensual sexual activity between two adults of the same sex in
private.
The Court referred to Indian and foreign judgments, the Yogyakarta Principles27
identifying with sexuality as a structure of personality and the worldwide patterns in
the assurance of security and nobility privileges of gay people and held:
“The sphere of privacy allows person to develop human relations without interference
from the outside community or from the State. The exercise of autonomy enables an
individual to attain fulfillment, grow in self-esteem, build relationships of his or her
own choice, and fulfill all legitimate goals that he/she may set. In the Indian
Constitution, the right to live with dignity and the right of privacy are recognized as
dimensions of Article 21.”28
The basic rights are implicit in the Universal Declaration of Human Rights, 1948. The
judgment of the Delhi High Court reflects general conscience towards the sexual
minorities. They should be treated with utmost respect as a citizen of this country,
without any discrimination in exercising their right to apply for a employment
opportunity, their right to seek justice.
26
Civil Appeal 10972 of 2013.
27
The Yogyakarta Principles are a set of principles on the application of international human rights law
in relation to sexual orientation and gender identity. The Principles affirm binding international legal
standards with which all States must comply. They promise a different future where all people born
free and equal in dignity and rights can fulfill that precious birthright.
28
Kharak Singh v. State of U.P., AIR 1963 SC 1295.

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In April 2014, the Supreme Court of India declared transgender to be the 'third gender'
‘
in Indian law.29 Justice KS Radhakrishnan noted in his decision that,
"Seldom, our society realizes or cares to realize 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".30
By recognizing the transgender as a third gender, this Court is not only upheld the rule
but also advanced justice to the class, so far deprived of their legitimate natural and
constitutional rights. It is, therefore, the only just solution which ensures justice not
only to the transgenders but also justice to the society as well.
Social justice does not mean equality before law in papers but to translate the spirit of
the constitution, enshrined in the Preamble, the Fundamental Rights and the Directive
Principles of State Policy into action, whose arms are long enough to bring within its
reach and embrace this right of recognition to the transgenders which legitimately
belongs to them.31
Non-recognition of the identity of Hijras/transgender persons denies them equal

protection of law, thereby leaving them vulnerable to violence and sexual assault, in
public spaces or in jail by the police. Further, non-recognition of identity of
Hijras/transgender person results in facing extreme discrimination in all spheres of
society, especially in the field of employment, education, healthcare etc.
Hijras/transgender persons face huge discrimination in access to public spaces like
restaurants, cinemas, shops, malls etc.
The applicability of the judgment in this case was restricted by the Hon‟ble Supreme
Court only to transgender and explicitly excluded the Lesbians, Gays and Bisexual,
thereby not going in the controversial question of validity of Section 377 of Indian
29
"Supreme Court recognizes transgender as 'third gender'" Times of India, Apr. 15, 2014.
30
National Legal Services Authority v. Union of India, AIR 2014 SC 1863 at 1868.
31
National Legal Service Authority v. Union of India, AIR 2014 SC 1863 at 1904. See Dattatraya
Govind Mahajan v. State of Maharashtra, AIR 1977 SC 915; National Human Rights Commission v.
State of Arunachal Pradesh, AIR 1996 SC 1234.

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Penal Code.32 The Court on the basis of Human Rights highlighted the importance of
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gender for applicability of various human rights.33 The court while deciding this
looked at the International Instruments.34
The Court directed that the recommendations by the report of Ministry of Social
Justice and Empowerment Expert Committee must be examined based on the legal
declarations made in this judgment and implemented within six months.35 This
broadened the ambit of rights that can be granted to the transgender. However, though
the judgment recognizes the harm done by Section 377 of IPC to the transgenders, it
did not pass any orders or make any recommendations.
The Hon‟ble Supreme Court of India declared36 that:
1. Hijras, eunuchs, apart from binary gender, be treated as “third gender” for
the purpose of safeguarding their rights under Part – III of our Constitution
and the laws made by the Parliament and the State Legislature.
2. Transgender persons‟ right to decide their self-identified gender is also

upheld and the Centre and State governments are directed to grant legal
recognition of their gender identity such as male, female or as third gender.
3. The Court direct the Centre and the State governments to take steps to treat
them as socially and educationally backward classes of citizens and extend
all kinds of reservation in cases of admission in educational institutions and
for public appointments.
4. The Centre and State Governments are directed to operate separate HIV
sero-survellance Centre since Hijras/Transgenders face several sexual
health issues.
32
With regard to Transgender, both the people who want to transition from their respective genders and
the ones who want to be identified with the third gender were included within the ambit of the
judgment. Available at: http://lexquest.in/nalsa-v-uoi-critical-analysis/ (last visited on Apr. 30, 2017).
33
National Legal Service Authority v. Union of India, AIR 2014 SC 1863 at 1867. Justice A.K. Sikri
observed that Human Rights are rights that belong to every person, and do not depend on the specifics
of the individual or the relationship between the right-holder and the right-grantor.
34
International Instruments such as, the Universal Declaration of Human Rights, 1948; the
International Covenant on Civil and Political Rights (ICCR), 1966 and the Yogyakarta Principles.
35
Supra note 47.
36
National Legal Service Authority v. Union of India, AIR 2014 SC 1863 at 1906.

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5. The Centre and State Governments should seriously address the problems
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being faced by hijras/transgenders such as fear, shame, gender dysphoria,
social pressure, depression, suicidal tendencies, social stigma, etc. and any
insistence for Sex Reassignment Surgery (SRS) for declaring one‟s gender is
immoral and illegal.
6. The Centre and State Governments should take proper measures to provide
medical care to the transgenders in the hospitals and also provide them with
separate public toilets and other facilities.
7. The Centre and State Governments should also take steps for framing
various social welfare schemes for their betterment.
8. The Centre and State Governments should take steps to create public
awareness so that the transgenders will feel that they are also part and
parcel of the social life and be not treated as untouchables.
9. The Centre and State Governments should also take measures to regain
their respect and place in the society which once they enjoyed in our
cultural and social life.
Therefore, it can be observed that the role of judiciary has been very
significant in the protection of the rights of the Transgenders in India. The
status of „third gender‟ has given recognition to their identity in the society
and has spread awareness about their existence. A Bench comprising Justice
K.S. Radhakrishnan and Justice A.K. Sikri directed the government to treat
them as “socially and educationally backward classes of citizens.37
 Social Recognition
Adopting an inclusive approach in education, for felicitation of students by way of

admission in educational institutions, the education department of the State of Tamil
Nadu issued a government order thereby creating a third gender category. Also, the
37
Krishnadas Rajagopal, “Centre wants SC to clarify order on transgender” The Hindu, Sept. 11, 2014,
available at: http://www.thehindu.com/news/national/centre-wants-supreme-court-to-clarify-orders-on-
transgenders/article6401930.ece (last visited on Mar. 20, 2017).

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Jadavpur University in Kolkata has included a separate column for the third gender in
‘
its admission forms for the year 2015.38
Transgenders can now mention themselves as "third gender" while seeking

information on governance related matters through online RTI application through the
website. The Department of Personnel and Training (DoPT) has introduced a field
„third gender‟ other than male and female on the RTI portal.39
The Committee which was constituted in accordance with the judgment of 2014 in its
recommendation makes it clear as regards the inclusive definition that has been
accorded to the term transgenders and will cover various gender identities and
expressions. It will not be confined to any one of the socio-cultural identity groups,
such as hijras, kothis, etc. but will include all persons who fall under the generic
definition of transgender person.40
All transgenders can avail the benefits under the Other Backward Class (OBC) list,
irrespective of their community background.41 The data of the Election Commission
stated that 23,019 people have registered themselves under the „Others‟ category.42
In significant decision for transgenders, the Allahabad High Court has ruled that they
are entitled to the status of head of a household which will allow them to avail food
security benefit through ration card.43
38
“Jadavpur Varsity Admission form now includes third gender” NDTV, Apr. 15, 2015. Available at:
http://www.ndtv.com/kolkata-news/jadavpur-varsity-admission-form-now-includes-third-gender-
755133 (last visited on Mar. 20, 2017).
39
Available at: http://www.ndtv.com/india-news/rti-to-now-have-a-third-gender-field-for-onlineline-
applications-781821 (last visited on Mar. 20, 2017). The field 'third gender' has been introduced on the
website (www.rtionline.gov.in) allowing transgenders to give detail of their identity while filing RTI
applications online. Though it is not a mandatory field but it will help the government in collecting data
on different categories of people filing queries under the transparency law.
40
Inter-Ministerial Committee on issues pertaining to Transgender Persons, dated Sept. 08, 2014.
Transgender Persons – All persons whose own sense of gender does not match with the gender
assigned to them at birth. They will include trans-men and trans-women (whether or not they have
undergone se reassignment surgery or hormonal treatment or laser therapy, etc) , gender queers and a
large number of socio-cultural identities, such as kinnars, jijras, aravanis, jogtas, etc. the term
„transgender‟ shall be construed accordingly.
41
“BC Panel for bringing transgenders in OBC” The Hindu, May 14, 2014, available at:
http://www.thehindu.com/news/national/bc-panel-for-bringing-transgenders-in-obc/article6006348.ece
(last visited on Mar. 20, 2017).
42
Id.

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A few months after the judgment of the Hon‟ble Supreme Court of India, the Madhya
‘
Pradesh government came up with a pilot project involving transgenders in the
cleanliness campaign. The impact is now visible. In Naandini village, each of the 131
homes now has a toilet. In the remaining 11 villages, toilets have been built in 80
percent of the houses.44
“Transgender Persons Bill will help protect and empower India‟s transgender
population, but the government needs also to address the bill‟s shortcomings. With
the input of the transgender community, the government should ensure that a new law
lays out a strong legal framework in line with the constitution and international law,
and provides effective enforcement.”45
The transgender community is actively seen taking part in order to sensitize the
society with regard to AIDS and other health issues. On December, 2016 about 200
people took part in a march led by members of the transgender community in Kalyan
(West) and volunteers working for the rehabilitation of children of commercial sex
workers staged street plays in the city on Thursday to mark World AIDS Day.46
43
“Transgenders entitled to head of household status: Allahabad High Court” NDTV, Apr. 19, 2015.
The court said the law needs to travel beyond non-discrimination, by recognising an affirmative
obligation of the state to provide access to social security. Food security lies at the foundation of it.
Transgenders must have both. Food security means no less to a transgender than to other segments of
society. Impoverishment and marginalization have been endemic to the transgender population, a
division bench of Chief Justice DY Chandrachud and Justice Shree Narain Shukla observed while
disposing of a Public Interest Litigation (PIL) which sought a direction to make available food security
and ration cards to transgenders. Available at: http://www.ndtv.com/india-news/transgenders-entitled-
to-head-of-household-status-allahabad-high-court-756329 (last visited on Mar. 20, 2017).
44
Siddharth Ranjan Das, “Transgenders bring government and villages together to build toilets” NDTV,
Nov. 19, 2015. Ms Singh, 30, a transgender, runs an NGO for her community. When the Madhya
Pradesh government requested the NGO, Mitra Shringaar Samiti, last year to be a part of the Swacch
Bharat Mission, she happily agreed. It is now the team's mission to campaign from door to door for
better sanitation in the villages. Seeing the impact of the work done by the team, the administration is
thinking of taking its help in 40 more villages. Available at: http://www.ndtv.com/india-
news/transgenders-bring-government-and-villages-together-to-build-toilets-1245264 (last visited on
Mar. 20, 2017).
45
“HRW demands strengthening of Transgender Rights Bill” The Hindu, Jan. 19, 2016. Discussed by
Meenakshi Ganguly, South Asia director at Human Rights Watch. Available at:
http://www.thehindu.com/news/national/HRW-demands-strengthening-of-Transgender-Rights-Bill/
article14006933.ece (last visited on Mar. 19, 2017).
46
“Transgender March to spread AIDS awareness” The Hindu, Dec. 02, 2016. The two-hour-long
march from the Commissioner‟s Bungalow to Birla College was organized by local NGO Navodaya
Movement with Birla College and Kinnar Asmita, an organisation working with the transgender
community. The march expressed solidarity with people living with AIDS, called for efforts to
intensify HIV prevention and highlighted issues that prevent transgenders from being part of
mainstream society.

Special issues 2017
Seldom has it occurred that an advertisement foregoes the opportunity to coin a
‘
slogan to get the message across the globe. Transgender are a group that often
witnessed a negative portrayal in the Indian Cinemas, but Indian advertisements have
come forward and actively participated in taking up the social issues, and there is a
growing sensitivity in the present era. 47
In April, 2017 the recent Vicks advertisement does both as till the very end it
assiduously keeps the brand out of the advertising film. It appeals to fine human
instincts, and joins a well-intentioned cause – all of this wrapped in a message of
caring to signal the brand position.48 This advertisement of „touch with care‟ goes a
step further in portraying a transgender as a mother, thereby putting these transgender
communities in the mainstream so that their social and fundamental rights are not
deprived to them.49
Ever since the Supreme Court in its 2014 landmark judgment called for equal
treatment, and the third gender category was created in education and employment,
thereafter various brand campaigns have built on themes inclusive of the transgender
community. Among these are Brooke Bond Red Label tea, which joined hands with Y
Films to create one-of-its-kind transgender music band, Six-pack band; and sari-
maker Red Lotus.50
CONCLUSION
After analyzing the discrimination, it is revealed that the transgenders along with
other person have been conferred the following rights, that is, right to equality,
equality of opportunity, fundamental freedoms, right to life which includes right to
live with human dignity and right against exploitation.
47
Padmini Prakash became India‟s first transgender television anchor; Kamla Jaan became the world‟s
first eunuch mayor but was asked by the HC to step down, as the post was reserved for a female
candidate. She was the mayor of Katni district for two and a half years since January, 2000; Shabnam
“Mausi” Bano was the first transgender Indian to be an elected member of the Madhya Pradesh State
Legislative Assembly from 1998 to 2003; Kalki Subramaniam is India‟s first entrepreneur.
48
Available at: https://www.pastemagazine.com/articles/2017/04/vicks-produces-a-powerful-new-ad-
about-a-real-tran.html (last visited on Apr. 07, 2017).
49
Meenakshi R. “Touch for Care goes Viral” The Hindu, Apr. 04, 2017.
50
Available at: https://video.scroll.in/833873/watch-this-tamil-lesbian-anthem-is-a-challenge-to-all-
those-who-are-illiberal-about-love (last visited on Apr. 07, 2017).

Special issues 2017
These rights include the basic and inalienable rights and such deprivation excludes
‘
hijras from the very fabric of Indian civil society. India is walking towards a better
future with a positive mindset as gradually it has started recognizing the rights of the
unheard through the golden doors of judicial activism.
The Supreme Court's landmark 2014 judgment recognised transgenders as the third
gender, assigning them their own identity and directing the government to provide
them with quotas in jobs and education. Thus, the transgenders can make their own
choices of profession, helping many dreams come true. They can be doctors, chefs,
police inspectors, lawyers. They can now be anything they want.
The transgender community has come into a limelight as a result of which last year in
2016, a private member bill was placed in the House of Parliament for giving legal
recognition to the rights and status of transgender community.

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Journal of Law Research International Journal of law and

legal jurisprudence studies

© Universal Multidisciplinary Research Institute Pvt Ltd

Transgender individuals and communities face many barriers to full acceptance in

1. Exclusion from Social and Cultural Participation (Social Exclusion) –

2. Exclusion from Economy (Economic Problem) –

3. Exclusion from Citizen Participation (Political Status) –

CONSTITUTIONAL LAW AND JURISPRUDENCE

© Universal Multidisciplinary Research Institute Pvt Ltd

In National Legal Service Authority v. Union of India,9 the interpretation of the

© Universal Multidisciplinary Research Institute Pvt Ltd

 Equality of Opportunity and Right against all forms of Discrimination

© Universal Multidisciplinary Research Institute Pvt Ltd

 Right against Exploitation

© Universal Multidisciplinary Research Institute Pvt Ltd

© Universal Multidisciplinary Research Institute Pvt Ltd

The America is celebrating the decision of the US Supreme Court in Obergefell v.

© Universal Multidisciplinary Research Institute Pvt Ltd

© Universal Multidisciplinary Research Institute Pvt Ltd

JUDICIAL ROLE IN PROTECTION OF THE RIGHTS OF TRANSGENDER

© Universal Multidisciplinary Research Institute Pvt Ltd

© Universal Multidisciplinary Research Institute Pvt Ltd

Non-recognition of the identity of Hijras/transgender persons denies them equal

© Universal Multidisciplinary Research Institute Pvt Ltd

The Hon‟ble Supreme Court of India declared36 that:

2. Transgender persons‟ right to decide their self-identified gender is also

© Universal Multidisciplinary Research Institute Pvt Ltd

Adopting an inclusive approach in education, for felicitation of students by way of

© Universal Multidisciplinary Research Institute Pvt Ltd

Transgenders can now mention themselves as "third gender" while seeking

© Universal Multidisciplinary Research Institute Pvt Ltd

© Universal Multidisciplinary Research Institute Pvt Ltd

© Universal Multidisciplinary Research Institute Pvt Ltd

© Universal Multidisciplinary Research Institute Pvt Ltd

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