Towards a gender-inclusive future: Judicial developments recognising rights of the transgender community in India

The transgender community in India has faced systemic oppression at the behest of the largely cisgender society. It was only in 2014, when the Supreme Court delivered the NALSA judgment, that the transgender community finally felt seen and heard as individuals with their distinct identity.

This led to the passing of the Transgender Protection Act, 2019, which aimed to establish rights for the community. It is not news though, that the legislation took one step forward and two steps back towards the purpose it sought to achieve.

Given the deep-rooted prejudice against the community, actualising the rights of transgender persons has taken longer. It was only in 2018, with the passing of the Navtej Singh Johar v. Union of India verdict where Section 377 (punishment for unnatural sex) of the Indian Penal Code was decriminalised, that the NALSA verdict was given holistic meaning.

However, for the law to help achieve substantive equality for transgender persons, mere de-criminalisation does not suffice. Designing a framework that affirms trans-inclusion in the society, and consistent efforts towards this end are crucial to ensure that individuals who do not conform to existing gender binary are not left in a state of oblivion.

Over the course of the years since the NALSA verdict, the High Courts across India have passed significant orders and judgments furthering the rights of the community. It is noteworthy to highlight that judges have taken proactive steps to understand perspectives of the community and the challenges faced by them by seeking help from psychologists and counsellors, so as to not be caught in the deep-rooted prejudice against trans persons.

Despite the many developments in favour of the transgender community in India through landmark rulings, systemic oppression and queerphobia prevalent at different levels of society rear their ugly heads intermittently. Courts across India have tried to address instances of oppression and discrimination faced by the trans community by passing progressive orders and judgments on an ad-hoc basis.

Most recently, the Madras High Court directed the Tamil Nadu government to consolidate a glossary with suggestions of 24 words and expressions for a dignified identity while referring to the LGBTQIA+ community.

Addressing queerphobia in the medical profession

In a recent case before the Madras High Court, it was observed that medical courses in India amplify queerphobia and discrimination against the LGBTQ+ community. It was seen that several treatments performed by medical practitioners with respect to transgender persons are forms of “conversion therapy” in the name of medical and mental health support.

Going to the roots of the practice, it was found that this apathy stemmed from the medical curriculum that doctors study during their formal training which describes sodomy, lesbianism and oral sex as sexual offences and cross-dressing as a sexual perversion. This inevitably trickles down to the practice followed when LGBTQ+ identifying individuals approach doctors.

Comprehensive measures were suggested to several branches of the State, including a suggestion to amend the curriculum to educate students to understand the sensitivities of the LGBTQ+ community. The Bench warned of strict action to be taken in case any professional is found indulging in changing anyone's sexual orientation.

Introducing reforms in the police department

Given the widespread stigma attached to LGBTQ persons, the hostility they face at the behest of policemen denying protection and inflicting harassment is immense. The absence of an internal circular or notification perpetuates the ignorance among the police. In this regard, the Court directed the following:

1. The Police Department must refrain from harassing not only LGBTQ+ folks but also activists and NGOs advocating for these communities.

2. The Police Conduct Rules must have a clause that stipulates punishment in case of harassment to LGBTQ+ allies or individuals.

3. Sensitisation programs to be conducted through people identifying with the community or by activists believing in the cause.

In 2020, the Karnataka government had released a notification excluding transgenders from recruitment to the police. In July that year, however, the Karnataka government agreed to provide reservation for transgender persons in State police recruitment as a matter of policy.

In addition to this, concession was sought in age, cut-off marks and physical criteria as provided to other reserved categories, and that reservation should be provided for transgender persons in public employment, public education, allotment of housing sites and schemes.

In July 2021, the Karnataka government officially agreed, and was the first to introduce a 1 per cent reservation for the transgender community in government jobs. Another petition arose soon after, for considering reservation for transgenders in State-owned corporations and statutory bodies.

Similarly, in October 2021, the Calcutta High Court allowed transgender persons to appear for the Kolkata Police recruitment exam. This is specifically with respect to the post of Sub-Inspector/Lady Sub-Inspector (unarmed branch).

Sensitizing media houses on reporting issues of LGBTQ+ individuals

In a recent order, the Madras High Court took note of the different initiatives being taken up by the media to ensure sensitivity while reporting on trans issues. Some of the steps being taken are as follows:

1. Seminars being arranged for building a queer-friendly future.

2. Compilation of words and expressions to be used while reporting or writing about the LGBTQ+ community

3. Formal training to editors and reporters while reporting and doing stories on queer issues

Measures being taken by the Central government for the trans community

Steps being taken by the Central government for the benefit of the trans community include:

1. Allocation of funds to set up shelter homes as part of the Garima Greh project

2. Formulation of a support scheme by the Union Ministry of Social Justice and Employment called Support for Marginalised Individuals for Livelihood and Employment (SMILE)

3. Online training programs enabling issuance of identity cards to transgender persons on a national portal for transgender persons by District Magistrate or Collectors

4. Conducting awareness programs for Child Welfare Committees, Juvenile Justice Boards, prison functionaries, healthcare officials and media professionals

Reforms introduced in schools

In an order passed by the Madras High Court in June 2021, guidelines were laid down to establish a conducive environment for LGBTQ+ individuals in schools. Some of them were:

1. Ensure availability of gender-neutral restrooms for the gender-non-conforming student.

2. Change of name and gender on academic records for transgender person

3. Inclusion of ‘transgender’ in application forms for admission, competitive exams, etc.

4. Appointing counsellors who are LGBTQ+ inclusive for staff and students to address grievances and provide solutions.

5. Implement measures laid down with respect to health, education and social security for transgender persons.

Separate toilets for transgender persons

Earlier this year, a petition was filed before the Delhi High Court to direct the State government to construct separate toilets for transgender persons, as using the same toilets meant for either of the gender binary would be violative of their right to privacy. In addition to this, transgender persons feel uncomfortable and are susceptible to harassment if they use washrooms meant for men or women. The Delhi government had mentioned that the letter ‘T’ was to be added to washrooms constructed for the disabled, so that the same could be used by transgender persons too. However, since there was no update on the implementation of this, the Court issued notice to the State. The underlying stigma attached to transgender individuals makes access to basic healthcare facilities difficult for them.

Legal recognition to LGBTQ+ marriages

A slew of petitions were filed before the Delhi High Court seeking legal recognition of trans and same-sex marriages. One of the petitioners, who along with their spouse after following the customs performed during marriage considered themselves married in the eyes of God, urged for the Court to take legal cognisance of the wedlock. The petitioners highlighted that the ratio propounded in judgments of Constitutional courts have rendered support to inter-caste and inter-religious couples, and that the same should be extended to LGBT couples.

Other progressive rulings

The Kerala High Court in a significant ruling in March 2021 held that a transgender person should not be denied entry to the National Cadet Corps (NCC) on the basis of their identity.

In July 2021, pursuant to the Karnataka High Court order providing 1 per cent reservation in government employment, then Calcutta High Court Acting Chief Justice Rajesh Bindal appointed Ankani Biswas, a transgender person to be empanelled as a lawyer in the West Bengal State Legal Services Authority. Biswas is the first transgender to occupy the position

In 2018, the Kerala High Court delivered a judgment reiterating that the right to freedom of speech and expression guaranteed by Article 19(1)(a) bring within its ambit the right of the transgender community to live as transgenders.

In November 2021, the Gauhati High Court issued directions to the State government to take appropriate measures in furtherance of health welfare for the transgender community.

The onset of the COVID-19 only amplified the challenges faced by the transgender community. Vicky Shinde, a transwoman and transgender-rights activist from Mumbai, spoke to Bar & Bench on the challenges faced during the pandemic.

“It has been a very difficult phase for us, especially given that a majority source of income was earned through seeking alms while performing at weddings and other functions, all of that has stopped. Even for those who used to work at households or prepare tiffins all of them have lost their jobs. Having worked closely for sex workers and cancer patients, I have seen the adversities that the trans community has had to face - for example, during the lockdown, children of sex workers had to stay at homes and witness their mothers being called out. Additionally, when there was a dearth in medications and healthcare for the public at large, the transgender community was invariably given least priority and it is difficult to be the last in a never-ending queue of people waiting to be treated.”

Adding further to the adversities faced on-ground, Shinde said,

“Members of the community themselves tried to form associations and worked towards distributing rations for transgender persons and especially those who have been forced out of their families. I have been lucky to be able to come back to my family, but still problems arise at home because of my identity. For some of my friends whose families have disowned them since their childhood, it is extremely difficult to apply for an Aadhar card or Voter ID card, when they know nothing about themselves and have no documents whatsoever to show their identity.”

A petition was filed before the Kerala High Court on the ground that transgender persons were not being given rations from the Public Distribution Shops (PDS) since they did not have a ration card. The difficulty in accessing medical healthcare facilities was also brought to light in this plea. The Kerala High Court had directed the State authorities to ensure medicines are supplied free of cost when a medical prescription is produced by a transgender person. Identity cards and ration cards should be issued at the earliest when a trans individual approaches authorities for the same, the Court directed.

Before the Court, the Director of Social Justice, Thiruvananthapuram highlighted that the Kerala government had introduced various schemes for the upliftment of the trans community which included assistance with self-employment, marriage between trans couples, financial aid for sex-reassignment surgery and student scholarship.

In addition to this, a 24x7 helpline had been launched for providing necessary assistance to transgenders who are distressed and to protect their basic rights by providing counselling and legal assistance. Apart from this, efforts were being made for supply of ration kits, providing shelter during the lockdown, etc. The Court added that to translate their rights into reality, it is vital for trans individuals and NGos working with the trans community to identify problems and share them with the officers.

On the aspects of the actions taken by the Kerala High Court to address the grievances of the community, Shinde said,

“What is being done in States like Kerala and Tamil Nadu has not trickled down to Maharashtra. While those States have a Transgender Welfare Board operational, in Maharashtra that is not the case. The welfare board in Maharashtra was just set up during the pandemic, but nobody knows whether it is truly functional as yet or not because the community has not received any benefits or consideration as yet.”

In December 2021, the Supreme Court pulled up the State governments and Union Territories (UTs) for not complying with its decade-old directions to issue ration and identity cards to sex workers.

"There is a bounden duty cast on the government to provide basic amenities to the citizens of this country. The State Governments/Union Territories and other authorities are directed to commence the process of issuance of ration cards/ Voters Identity cards immediately to sex workers from the list that is maintained by NACO," the Court directed.

While court orders and judgments have helped better implement the directions laid down in NALSA, there is still much to be done to ensure socio-economic and political participation of gender and sexual minorities.

The many judicial rulings that have been passed so far are reassuring to the extent that timely court pronouncements give the message of a gender-inclusive future. However, legislative reforms need to be introduced to help the community feel included and heard.

Thulasi K Raj, Equality Fellow at CLPR and a practicing advocate at the Supreme Court and Kerala High Court, spoke to Bar & Bench on the different aspects that still need to be worked on for realising trans rights and inclusion.

On the passing of the Transgender Persons (Protection of Rights) Act, 2019 (TPA) legislation, Raj said,

"It was the first legislative effort in recognition of the transgender identity. Although belated, it was a crucial move in advancing trans rights. This has proved effective in urging potential solutions to the problems. In addition, various states have issued transgender policies like the Kerala State Policy, 2015 which introduces various welfare provisions.

However, the TPA has problems. The Supreme Court in NALSA (2014) held that transgender persons are entitled to reservation in the matter of appointment, citing Article 16(4) of the Constitution. The Act, or the 2020 Rules, make no such provision. Similarly, the refusal of the law to acknowledge self-identification of transgender persons has also been widely criticised. Transgender activists such as Vyjayanti Vasanta Mogli say that the authorities who are bound to issue certificates under the Act are not sensitised about the issues that the community face."

Several other legislative inconsistencies come to light when looking at cis-normative laws vis-a-vis the TPA, 2019 and the Supreme Court decision in NALSA. For example, labour laws of India mandate women to not work between 7 pm and 6 am. Whether this extends to transwomen is uncertain. This uncertainty may lead to different employers applying different interpretations of ‘women’ and may cause unfair discrimination between cisgender and transgender women.

Another similar dilemma posed by the law is whether a transgender person who came out before they joined a position reserved for women will be allowed to keep their job thereafter. These examples brings forth an important reality that binary laws catering exclusively to cisgender identities are antithetical to any transgender inclusion.

It reveals the need to recognise the diversity and uniqueness of various gender identities within the current definition of ‘transgender persons’ under the 2019 Act. Until required legislative amendments are made, laws must be interpreted liberally with the aim of creating inclusion for transgender people.

Additionally, Section 18 of the Act makes offences against transgender persons including rape punishable by 6 months to 2 years and with a fine only. This is a significantly lower punishment than the rape statute under Section 375 of the IPC applicable to cisgender women. It is important therefore, to provide for adequate punishment for sexual offences against transgender persons.

Adding further on the inconsistencies in laws, Raj said,

"In spite of the 2019 Act, there are legal provisions which expressly discriminate against trans persons. The 2017 Guidelines on Blood Donor Selection and Blood Donor Referral issued by the National Blood Transfusion Council, prohibit transgender persons from donating blood. This disrespects trans members, who are disabled from donating blood to their family or friends in case of dire need. The Parliament must reconsider such provisions."

On the aspect of the non-uniformity of setting up Transgender Welfare Boards as mandated by the Act, she said,

"Transgender Welfare Boards have great potential in addressing various concerns. While many States like Kerala, Assam and Tamil Nadu have constituted Welfare Boards, several others have not. In many states like Maharashtra, it is reported that bureaucratic hurdles prevent speedy constitution and functioning of the welfare Boards. Red Tapism is a major threat in delivering welfare measures to trans persons in time. Lack of funding in many States have also been a key factor.

Legislative will is an imperative for advancing the rights of any protected group. Without a strong legislative mission, there will continuously be roadblocks in the functioning of the Board and implementation of welfare legislations. Bureaucratic efficiency and political will can go a long way in resolving the socio-economic backwardness suffered by transgender persons. The Boards should also see effective representation from persons with diverse backgrounds and identities," she opined.

Speaking further on the on-ground challenges faced by the community, Raj highlighted,

"Another aspect which requires change is the social attitude towards transgender persons. Stigma and discrimination prevail in employment, renting and social participation. This requires attitudinal change from the public. Thus, social acceptance is key to reaffirming their self-respect and dignity. While courts have limitations in ensuring this acceptance, civil society activists and organisations can strengthen their efforts."

The author would like to thank Nauman Beig for their invaluable inputs.