Is It Possible for Transgender persons to be Legal and Free?

Transgender is an umbrella term for persons whose gender identity is different from the sex identities assigned at the time of birth. The meaning of the prefix “trans” is across or beyond2 and the gender of a person is culturally and socially constructed.3 From the aforementioned meaning of the two terms, it can be construed that the term transgender is beyond the assigned sex identity at the time of birth. To be more specific, it is the opposite of standard forms of sex i.e. male and female. Sex is in conformity with chromosomes, hormone prevalence, and external and internal anatomy. Gender relates to socially assigned roles of men and women that are set up in the society. People who identify themselves as neither men nor women are in contrast to the socially set up roles of gender. They are considered different by the people who identify themselves as straight men and women. And this is the reason that they are called “transgender”.

Transgender people have existed since ancient times. There are various traces of the trans people found in different books, pictures, arts, crafts, works, mythological stories, epics, culture, songs, poems and various other identified and unidentified sources. These sources from the past make it clear that transgender people have a historical background in various countries all over the world and have existed since ages. The phenomenon is not new but is highlighted in all the ages including today. Archaeological and historical studies are continuously making efforts to understand the literature from the remains of past. These studies assist the present researches grow better and reasonable. The surveys conducted by the archaeologists are making the transgender studies objective, concrete and empirical. The contribution of historical background cannot be ignored to understand the problems and issues that exist in the society at present. If the issues concerning the origin, problems and behavioural patterns of the trans community are studied from the past, it will help the new researches to be analytical, free of prejudices, scientific, fact-based, observational, logical, data oriented and statistically examined. This will help in removal of socially constructed patriarchies. History binds, shapes, creates and helps in understanding the issues of society. The gender identity related to trans people can be studied through previous researches and interpretations of people in books, mythologies, epics, incidents and various other forms of art and literature. For instance, Professor Stephen Whittle has outlined a brief history of transgender issues and highlighted the origin of several terms of transgender vocabulary in an article for The Guardian. As per the above-mentioned article of Professor Whittle, German Sexologist Magnus Hirschfeld has used the word “transvestite” in the year 1910. Magnus later developed the Berlin Institute where the very first “sex change” operations took place. The term “transsexual” was not coined until 1949, “transgender” not until 1971 and “trans” (a very British term) not until 1996.4

If we look deep into the transgender community and their position in India, this community existed in India even in the Hindu epics of Ramayana and Mahabharata. Trans people have also played an important role during the medieval era. Muslim rulers of the Mughal Empire in the 15th to 19th centuries were considered patrons of third gender Indians. They were employed to take care of the harems and queens.

Inspite of the presence of the trans people in human history, the community faces challenges at different levels in the society. These people have to undergo discrimination in all facets of life. Starting from their homes to the place of work, they only manage to survive with a number of pressing difficulties; the community has to face discrimination at large. Trans people are not treated as normal human beings. They too have basic life processes, including respiration, digestion, urination and excretion, similar to the set categories of sex i.e. male and female. But unlike the straight people, this community has not been accepted by the regressive society, they are ill-treated and are economically backward.

They are alienated from the mainstream of the society which is violative of Articles 145, 156, 197 and 218 of the Indian Constitution9. The fact that they have a right to life is not recognised even after several revolutionary judgments by the Supreme Court of India. Trans people are treated as socially unfit and are deprived of the basic fundamental rights. However, these rights should not be only limited to male and female; and should be made accessible for everyone including the trans persons also. The approach of the society towards the trans community is regressive and breaking the constitutional values of equality, liberty and justice. The society should make efforts to protect the rights of dispossessed class of society including the trans people. But, the biased thinking of the so-called straight people is breaking the basic soul of constitutional values by treating them as different people, making them feel discriminated, restricting their freedom and infringing their right to life and personal liberty. Fundamental rights are basic to an individual; they are needed for survival and to lead a normal life. When these basic rights are denied either by legislation or by any social group, nothing can be worse than that.

In spite of making the basic structure of the Constitution of India as a supreme power, societal biases towards the trans community have caused a tremendous breakdown of the democratic structure. Besides, these prejudice to not give recognition to the word “Republic” as given in the Preamble of the Constitution of India. Republic means a State where the supreme authority is in the hands of people and their representatives.

This segregation of the trans people, though a product of patriarchally hegemonistic social structure, has been normalised. This normalisation of the alienation of the transgender persons has been perpetrated by the ideological institutions of society such as family, marriage, university, film, literature, etc. Through these propagandist tools, straight people have been regarded as the standard, while the trans population has been scoffed at, ridiculed, and relegated to the peripheral subaltern positions. This otherisation of the trans has encompassed every point of the human society. It has been culturally transmitted to the succeeding generations and it is almost impossible to shatter this canonised hierarchy of heterosexual binary of males and females. Anything that goes against the fixed notion of sex binaries has been sidelined as something irreligious and blasphemous.

Despite this coerced normalisation of the transgender persons segregation some bright light is entering the dark chambers of the stratified social structure. French legal system has maintained humanitarian aids to trans people upto some extent. It can be noted that adoption by a single individual is permitted in France. Civil rights are basic for any democracy, and opening up the possibility of adoption by a single homosexual can be called a revolutionary step. The European Court of Human Rights opined that it will not be reasonable to advance the treatment regarding the applicant’s sexual orientation as it would amount to discriminatory practices.10

Under the laws of United Kingdom, lesbian, gay, bi and trans people are protected from discrimination. The Equality Act, 2010 provides provisions that an adoption agency must assess the trans person fairly using the same criteria as is designed for the straight male and female community. The authorities could not turn down an application for adoption based on their sexuality.11

Not only this, marital rights to trans community also exist in some countries. The case of Corbett v. Corbett12 is the genesis of all transgender marriages since 1970. In MT v. JT13, MT, a male had a vagina and was able to function sexually as a female. Thereby, she was legally recognised as a female for the purpose of marriage. Considering the judicial pronouncements by Australian courts, marriage between a female to male transgender individual and his wife, a biological female was affirmed valid in Attorney General (Cth) v. Kevin and Jennifer.14 It is for the reason that Court was of the view that for the purposes of marriage, a person’s sex should be determined by considering a number of factors, but these should not be limited to biological and physical characteristics at birth; the person’s life experiences, including the sex in which he or she is brought up and the person’s attitude to it; the person’s self-perception as a man or woman; the extent to which the person has functioned in society as a man or a woman; any hormonal, surgical or other medical sex reassignment treatments the person has undergone, and the consequences of such treatment; and the person’s biological, psychological and physical characteristics at the time of the marriage. Hence, the case considers the marriage between female to male transgender individual and his wife, a biological female was affirmed valid.

In the backdrop of the marital and adoption rights given to the trans population internationally, the Indian courts and judicial system are also democratising the phenomenon more specifically. It is providing humanitarian aids to trans people. The Preamble of our Constitution talks of “liberty”, “equality”, “justice”, “fraternity” to all the people living in the India, “a sovereign, socialist, secular, democratic, republic”. The same principles have been taken into consideration by Part III of the Constitution of India i.e. fundamental rights including right to equality, prohibition against discrimination, right to life and personal dignity and the right to freedom, etc. These fundamental rights exist but the legislations and various norms of societies are not in consonance with the same. There are issues for which there is no legislation even today. Laws are made to govern the society and regulate it. They give power to the weaker and voiceless sections of society. Any kind of absence in the legal provisions may result in the patriarchal systems of our society and this may lead to power centric rule of the authoritarian male dominance. For the sake of same, the Indian Parliament has passed the Transgender Persons (Protection of Rights) Act, 2019.15 The Act was introduced with the objective of eliminating marginalisation from the society. The background behind this legislation goes back to the judgment of National Legal Services Authority v. Union of India16 by K.S. Radhakrishnan, J.where the foundation for establishment of transgender persons as “third gender” was made. The view behind this judicial pronouncement was to curb the discriminatory practices by laying down several measures. This landmark judgment recommended providing reservation in government jobs and educational institutions. It also declared the right to self-perceived gender identity without undergoing sex reassignment surgery. In the year 2016, a Bill was drafted and referred to the Standing Committee of Parliament for further suggestions. Keeping in view the suggestions made by the Standing Committee, a new Bill was introduced in Parliament in the year 2018. This Bill was introduced again in Parliament in the year 2019 which was later passed by both the houses and the assent of President was also granted. The basic aim of this legislation is to curb the discrimination against trans community and provide them equal status in the society by breaking the stigma against them. The subaltern trans groups of people must be given a voice so that they are represented in this patriarchal society. Parochialisation of the transgender people leads to their deprivation from the society and the people. The Act of 201917 was made with a view to follow constitutional and humanitarian values for the segregated trans people.

Despite providing the basic human rights to the trans community, the Act may have some more features for removing the social biases against the community. The Act, though a landmark piece of legislation, requires further scrutinised amendment for raising the voices of the trans people.

No piece of legislation is ever final and absolute. Lawmaking is a continuously evolving kinetic process and newer lights are thrown on the key points through debates, arguments and counter-arguments. The system of dialogue and debates has been existing in human society since ages including India. The Upanishadic debates and Socratic inquisitions show that no human truth is final. There is always scope for further enquiry.

Certain points, as far as this revolutionary Act is concerned, need to be further elaborated upon, debated, argued and discussed to reach a more logical and scientific conclusion. The first question that needs further elaboration is how transgender groups were consulted prior to making of this legislation. Legislation making is a consultative process where the opinion of the maximum number of stakeholders should be taken care of. For further amendments to the Act, the point of views of the trans people should be taken. The Act must further reflect the aspirations of the trans community.

In general, if a family is not welcoming a transgender child, they go to live with their community. Unlike the straight community, they are not given humanitarian behaviour by their family. But as per the provisions of the said Act, if a family does not welcome a transgender child to their own family, the court will decide further the residence and send that child to the rehabilitation centre. Basically, rehabilitation centers are for getting someone’s life to normalcy, if a person has become abnormal due to any kid of disease, accident or situation. Now the question that arises here is: Are transgender people abnormal? The idea against the argument is that the day they are considered as abnormal species, they are included in the category of abnormal human beings and so they are discriminated by the society. They breathe like normal human beings; their basic life processes are similar to the straight community. They eat, breathe and lead their lives. The legislation is showing that they are abnormal beings and thus creating differences among the human beings.

The Act provides that the people who belong to transgender community will have to go through a screening process which will determine their sexuality. This will include a certification by a District Screening Committee. The certificate will acknowledge them as transgender. However, those transgender persons who wish to identify themselves as a man or woman will need to go through a gender affirmation surgery (popularly known as sex reassignment surgery, or SRS). This provision of the Act violates the Supreme Court’s judgment of National Legal Services Authority v. Union of India18 which states that the only thing needed to identify a person is their word for it. It seems like the Act was made keeping in mind the fact that all transgender people either want or have the ability to go through surgical methods. Is this method even feasible for them economically? Isn’t the Act indirectly pushing them to go for surgical methods? The system of the screening process and the need for medical certificate, which will help in determining the sexuality, will actually restrict the equality before law. Now as per the Rules of 202019, they do not have to go through medical examination, but will have to submit an affidavit of their sexuality. After this, an identity card will be issued which will determine their sexuality. This will end their right to self-declaration of sex, which males and females are entitled to. Are the males and females of this society asked to go through such a screening process? Are there separate identity card, for males and females? The classification made is not reasonable and may create alienation of the trans people in the society. This will increase red-tapism forcing the members of trans community to go through bureaucratic procedures.

Next, the punishment of imprisonment against sexual abuse is just two years in case of transgender persons. However, as per the Penal Code, 1860, the punishment for rape against women is seven years.20 This is in clear violation of their equal treatment and status in the society and may be violative of their equality and dignity.

The affirmative action of providing reservations in government jobs and educational institutions is for uplifting the marginalised sections of society. Those who are maltreated, unprivileged and who suffered or are suffering social and economic backwardness are generally given this opportunity so that they may be able to match the mainstream sections of the society. There is no such mention of reservation for trans community under the Act.

The civil rights of transpeople are obstructed by the all power centric patterns in society. In general, males and females are entitled to the right to marry, divorce and adopt. But the transgender community is deprived of such rights. Even after continuous judicial pronouncements, the life and dignity of transgender community is endangered. The case of K.S. Puttaswamy v. Union of India21 lays down the principles of individual liberty and the right to a dignified life. And in Navtej Singh v. Union of India22, the Court referred to a Canadian case wherein it was stated that human dignity is harmed when unfair treatment is meted out based on personal traits or circumstances which do not relate to individual needs, capacities, or merits. It was held that the LGBT community has the same individual needs as the straight community. They too require the same human, fundamental and constitutional rights as other citizens. The community should not be given step-motherly treatment on the pretext of social morality. The disentitlement of adoption by LGBT couples harms the dignity of the people. It is based on their sexual orientation which does not relate to the capacity or merit as prospective parent.

The concept of the National Council for Transgender Community23 for trans community is actually a paper tiger. First of allout of thirty members, only five members will be from the transgender community. So again majority will be of the dominating class of the society and the transgender community will be ignored at the Council. As a result of this, the straight community will have a hold over the transgender community. The voices of trans people may be suppressed if the majority lies in the hands of powerful and dominating class of the society. The ratio of the number of members in the Council may create a disparity. The Council lacks independence in carrying out functions.

The provisions relating to begging have been decriminalised by the Act of 2019 and the word ‘begging’ in Section 19under Chapter VIII (Offences and Penalties)of the Bill of 201624 (Section 18 of the 2019 Act) has been removed. The High Court of Delhi in Harsh Mander v. Union of India25 had also marked the Bombay Prevention of Begging Act, 195926 as unconstitutional holding that it violates Articles 14 and 21. The Court opined that there is a class of society who has no other means of sustenance but to seek alms for it. Criminalisation of begging is clear violation of the basic rights that are needed for the community. The people who are suffering from poor economic conditions also need to fill their stomachs. Hunger, housing and clothing are the basics for any individual or species. The one who is living in the outskirts of economic valuation has to beg as the last resort. They do not have any other choice left. The judgment defends the right to life of poor persons who sustain and lead their lives through begging. The Court order challenges the middleclass resentment towards “illegitimate denizens”.27 But the above argument of the Court and the Act of 2019 can also be seen as not mitigating the problem of unemployment among the trans community. To weed out the extreme conditions of object poverty and deprivations, along with the decriminalisation of beggary, employment resources must be generated for the transgender people. The Act has made commendable provisions by decriminalising begging. But to uplift the economic conditions of the transgender people, job opportunities and startups should be opened for them. It is to be noted that the Act and such judicial pronouncements are pushing these people to beggary and not towards jobs and services. These people must be provided with an adequate means of survival and not the act of beggary. This will embark their dignity and social status in the society. Transgender persons must also be given such rights for their proper and dignified survival.

From the above-mentioned arguments it can be clearly stated that the trans communities are not treated fairly. They are subject to continuous discrimination by the society, set norms and even the legislations. They are not provided with the basic human rights. To empower them, basic constitutional rights must be taken care of. This will break the hierarchy and the deprived trans people will live their lives with dignity. Also, there is a need for revolutionary steps to be taken. All the provisions of the Transgender Act must be implemented properly and necessary amendments to the same may be introduced. This will help to provide liberty, equality and fraternity. Trans people must not be segregated, they should be a part of this society. Legislations should be made inclusive and so that the marginalised and weaker sections of this society will be provided with basic rights. Thereby, the transgender persons must be provided with human, civil and constitutional rights. This will embark a change in the patriarchal social normative theories of the people. And the trans community will be able to lead their lives with dignity and freedom.


† BA LLB 5th year, student at Jamnalal Bajaj School of Legal Studies, Banasthali Vidyapith, Rajasthan. Author can be reached at <bhavyaagarwal9989@gmail.com>.

2. Oxford Advanced Learner’s Dictionary, Oxford University Press, 8th Edn., 2010, p. 1644.

3. Nicholas Abercrombi, Stephen Hill and Bryan S. Turner, The Penguin Dictionary of Sociology, Penguin, 2006, p. 163.

4. Prof. Stephen Whittle, “A brief history of transgender issues”, The Guardian, <https://www.theguardian.com/lifeandstyle/2010/jun/02/brief-history-transgender-issues>(accessed on 20-2-2022).

5. Constitution of India, Art. 14.

6. Constitution of India, Art. 15.

7. Constitution of India, Art. 19.

8. Constitution of India, Art. 21.

9. Constitution of India.

10. E.B. v. France, [2008] ECHR 55: (2008) 47 EHRR 21.

11. <https://www.stonewall.org.uk/help-advice/parenting-rights/adoption-and-fostering>(accessed on 20-03-2022).

12. (1970) 2 WLR 1306 : (1970) 2 All ER 33.

13. 6 Cap UL Rev 403 (1976-1977):(1976) 355 A 2d 204.

14. (2003) 77 (7) LIJ, the decision was affirmed on appeal by the Full Court of the Family Court of Australia [Attorney General (Cth) v. Kevin and Jennifer], 2003.

15. Transgender Persons (Protection of Rights) Act, 2019.

16. (2014) 5 SCC 438.

17. Transgender Persons (Protection of Rights) Act, 2019.

18. (2014) 5 SCC 438.

19. The Transgender Persons (Protection of Rights) Rules, 2020.

20. Penal Code, 1860.

21. (2017) 10 SCC 1.

22. (2018) 10 SCC 1.

23. Ministry of Social Justice and Empowerment, Noti. No. S.O. 2849(E), dt. 21-8-2020.

24. The Transgender Persons (Protection of Rights)Bill, 2016.

25. 2018 SCC OnLine Del 10427.

26. Bombay Prevention of Begging Act, 1959.

27. Harsh Mander v. Union of India, 2018 SCC OnLine Del 10427 and Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217.

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