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Madras High Court: In a writ petition filed for calling the records of the prospectus issued for the Post Basic (Nursing) Course and Post Basic Diploma in Psychiatry Nursing Course for the academic year 2022-2023, and to quash the same as illegal for not categorising transgenders under special category, and further to direct the respondent to admit the petitioner in the said Course under special category as transgender, R. Suresh Kumar, J. has directed the respondent to treat the petitioner as the third gender/transgender and accordingly, place her in a special category for the purpose of admission to the said course for which the merit list has been issued.

The Court referred to the decision in National Legal Services Authority v. Union of India, (2014) 5 SCC 438 wherein the Court has given a set of directions to both Centre and State Governments that, what action shall be taken to treat the third gender viz., transgender as a special category for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by Parliament and the State Legislature. Further, direction was given that, the Centre and State Governments must take steps to treat transgenders 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. Therefore, the Parliament has enacted a law called ‘the Transgender Persons (Protection of Rights) Act, 2019 (‘2019 Act’).

The Court noted that Section 4 of the 2019 Act recognises that a transgender person shall have a right to be recognised as such, in accordance with the provisions of the Act, and the obligations of the Government have been mentioned under Section 8 of the Act and the obligation of educational institutions to provide inclusive education to transgender persons has been mentioned under Section 13. It was observed that though the said Act came into effect from 10.01.2020, however, orders have been passed by the Supreme Court, where direction has been given that reservation shall be given in cases of admission in educational institutions and for public appointments, but the prospectus in the present case, issued by the State Government, has no such reservation for third gender candidates.

The Court viewed that even though there were minimal transgender living in the State, at least a provisional note could have been provided, stating that, even though special reservation has not been made horizontally for transgender candidates, if there is any eligible transgender candidate who makes application, will be considered on merits and that candidate would be treated as a special candidate under the special category of transgender, and would be considered for admission, but such special note was missing in the said notification/prospectus.

Further, it was observed that, followed by the judgment of the Supreme Court, in the very case of the petitioner itself for 2018-19 admission, some directions have been given by this Court to reserve one seat in the transgender category as a special reservation and in that seat, the petitioner had been admitted and she completed the course, thus, the non-inclusion of the petitioner in the special category meant for transgender for admission to the course of B.Sc. (Nursing), for which the present notification was issued, is not a mere omission and it is against the judgments given by the Supreme Court as well as this Court and against the provisions of the 2019 Act.

[S. Tamilselvi v. Secretary to Government, 2022 SCC OnLine Mad 4879, decided on 11.10.2022]


Advocates who appeared in this case:

For Petitioner: Advocate Reshmi Christy

For Respondents: Government Pleader U.M. Ravichandran

Advocate M. Sneha

Op EdsOP. ED.

Introduction: The brutality faced by the community

India in the 21st century claims to be striving for gender equality and gender neutrality, yet the judiciary still fails to acknowledge and take into consideration “gender neutrality” when it comes to crimes relating to sexual offences. Today, India not only legally recognises the two genders of male and female but has also taken the progressive step towards giving the transgenders a legal recognition and bestowing them with the same fundamental and constitutional rights as the other two genders.

In NALSA v. Union of India[1], the judiciary finally recognised the transgenders and gave them the position of the “third gender”. It is ironical, as the country which is progressive enough to recognise the third gender is still regressive enough to not have gender neutral criminal laws relating to sexual offences. These criminal laws do not even extend to the male gender; therefore, inclusion of the third gender is a far-fetched dream. Fortunately, the transgenders have at last attained constitutional equality. Constitutional equality can be defined as the equal status attained by persons under the Constitution of the country. In the Indian context, Article 14[2] provides for equality before law. No person shall be discriminated on the basis of sex.

Nonetheless, despite having the legal recognition as well as constitutional equality, the treatment of transgenders in the society as well as legally, due to the lack of laws, indicates a violation of their fundamental rights under Articles 14, 15[3] and 21[4] due to the lack of gender neutrality in laws relating to sexual offences.

Moving on, more often than not, we assume that human bodies are clearly either male or female and turn a blind eye to the violence suffered by those who violate the normative understanding of what it means to be a man and a woman[5]. We overlook the plight of the transgender community, which includes hijras and kothis in the Indian context and intersex, a condition in which one’s sexual organs are ambiguous[6]. However, with reformatory movements such as #MeToo and #MenToo, the country saw a rise in the awareness of and need for inclusivity in laws relating to sexual offences, which extended not only to the male gender but also to the third gender.

Furthermore, historically and mythologically, India has witnessed the existence of the transgender community and therefore it cannot be termed as a new or an alien concept. In fact, the Hijra community in India traces their origins to myths in the Ramayana and Mahabharata[7]. It is disappointing to see the lack of inclusivity in the criminal law.

In India, various studies have documented sexual and physical violence against transgender persons[8]. Transgenders have been a victim of sexual offences since ages and yet there is no law in place to help them get justice. These offences include sex trafficking, rape, sodomy, stalking, sexual harassment at workplace and otherwise and so on.

Such offences are committed from the childhood of transgender persons. 971 (44.7%) transgenders were reported facing 2811 incidents of violence i.e., an average of three incidents per person between April and October 2015[9]. The trans community has suffered immensely by being excluded from the definitions of sexual crimes. In research conducted in different parts of India by a Health Resource Center “Swasti”, it was found that four in ten transgender people experience some sought of sexual abuse before the age of 18 and the trauma continues past their childhood[10]. A study by the National Human Rights Commission (NHRC), India found out that 52% of the transgender community faced harassment by their school classmates and 15% from their teachers which resulted in their dropping out from school[11].

It is unfortunate as it is claimed that most sexual offences against transgenders take place when they go to the police seeking help. People’s Union for Civil Liberties — Karnataka studied the cases of human rights violation against transgender persons and the observations were staggering.

“Sexual violence is a constant, pervasive theme in all the narratives collected in our report. Along with subjection to physical violence such as beatings and threats of disfigurement with acid bulbs, the sexuality of the hijra also becomes a target of prurient curiosity, at the least, which leads to brutal violence, at the most. As the narratives indicate, the police constantly degrade hijras by asking them sexual questions, feel up their breasts, strip them, and in some cases rape them. With or without the element of physical violence, such actions constitute a violation of the integrity and privacy of the very sexual being of the person.[12]

Currently, any sexual offence committed by anyone irrespective of its severity, that does not fall under the definition of “rape” under Section 375[13], may be filed under Section 377[14] IPC which deals with “unnatural sex”. While this does help in accessing justice to a certain extent, it trivialises the gravity of the offence by not giving it the position of “rape” or the punishments imposed in respect of the same. When we take a look at other criminal law statutes such as the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH)[15] or the Immoral Traffic (Prevention) Act, 1956[16], there are no legal safeguards ensured for the transgenders, who happen to form the majority of victims in such cases.

Nonetheless, there is still a ray of hope as constant efforts are being made by various NGOs across India as well as the Law Commission Reports and Parliament in order to help the community attain equal status and prevent their exploitation. There also exists certain legislations, amendments and precedents passed in light of this which shall be discussed through this paper.

Analysing the position of law

Despite being centuries old, the criminal laws of the country have undergone many amendments and modifications throughout the decades to suit the needs of the changing society. For instance, after Nirbhaya case[17], the Penal Code, 1860[18] was amended in 2013 to widen the scope of hate crimes and sexual offences against women. So far, the Penal Code has been amended 77 times.

The debate on the need for inclusive laws has been going on for almost two decades now with many landmark judgments where the women have misused the pro-women laws or the men have been the victims of such situations. While, the trans community has been subjected to such violence from ages not many had raised their voice against the same until recently. The trans activism in India began around 1999 with the first pride march held in Kolkata. However, it was only after 2009 did the trans activism gain momentum after the landmark judgment delivered in Naz Foundation v. Govt. of NCT of Delhi[19]. 12 years have passed since, and there has been no proposals to bring about gender inclusive law relating to sexual offences yet. One can look at a brief history of the dynamics between the trans community and the Indian legal system thereby walking through the developments made in light of the same while emphasising on the need of gender inclusivity.

I. History and development of laws relating to sexual offences and transgenders

The IPC does not provide for the definition of sexual offences and all sexual offences, except Section 377, are made gender-specific, that is, the victim is always deemed to be a woman while man is seen as the perpetrator[20]. Sexual offences can be defined as range of offences wherein the sexual sanctity and bodily integrity of an individual is interfered with or without his/her consent[21].

In India, criminal laws are heavily influenced by the mindset of the people in the society. The age-old patriarchy deeply rooted in the minds of the people has led to a situation where the man is always the perpetrator and can never be the victim by virtue of his gender.

This has led to the gender-specific rape laws and other laws relating to sexual offences such as the POSH Act, 2013 which is formulated for the protection of women in the workplace.

(a) Rape law in India

Rape law in India before the infamous Mathura rape case[22] was very narrow, regressive and discriminatory against women. For a very long time, the burden of proof in such case was upon the victim, but the same was shifted on the accused after the Mathura rape case[23]. Another demand was to hold in camera proceedings for rape trials and to maintain anonymity of the victim[24]. Accordingly, the rape law was amended to fulfil these recommendations and demands posed by the activists.

The Indian women’s movement has revolved around the agenda of reforms in rape law since the 1980s[25]. Women’s groups have for a long time struggled to broaden the definition of rape[26]. However, it was only after the 2013 amendment did the rape law in India become more accommodative to all forms of non-consensual sexual activity. Nonetheless, the law still lacked gender inclusivity and considered only the women as victims of rape except that of hate crimes. The 2013 amendment also recognised acid attack as a form of hate crime, and the laws pertaining to this was made gender neutral. However, transgenders were still excluded from the laws.

Nonetheless, there did exist legal safeguards for victims of sexual offences that did not fall under the definition of “rape” under Section 375. Such offences could be filed under Section 377 that defines “unnatural sexual offences”:

  1. Unnatural offences. — Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

     Explanation. — Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.[27]

While this provision could act as a legal safeguard, it was also very discriminatory in nature as this provision was transphobic in nature by defining certain consensual acts as “unnatural” merely because it did not fit into the normative acceptable definition of what constituted “natural”. What seems stranger and unfortunate is the fact that the same provision holds good for sexual offences even today, even after the decriminalisation of Section 377. This provision merges a male on male or female on female rape to voluntarily sexual activity between two consenting homosexuals, thereby indicating the regressive nature of this law.

(b) Position of transgenders under the law

Much before the 2018 judgment[28], the AIDS Bhedbhav Virodhi Andolan (ABVA) published a report in 1991[29] revealing the atrocities faced by the transgender community in the nature of sexual violence, exploitation, assault and extortion under the garb of Section 377 IPC recommending that the said law should be repealed[30]. A writ petition was filed in light of the same to declare Section 377 unconstitutional. However, the writ petition was quashed on the grounds of upholding legal morality, majoritarian morality and its declaration as ultra vires the Constitution would go against public morality, public order and decency[31].

Even though this petition was dismissed on technical grounds, it had already ignited the trans community to fight for their rights and demand for their legal safeguards against sexual offences. This activism went on to give rise to another case called Sudesh Jhaku v. K.C.J.[32], where the matter of gender neutrality was first discussed.

(i) In Sudesh Jhaku v. K.C. Jhaku

The issue of gender neutrality of sexual offences first arose in Sudesh Jhaku case in 1996[33] wherein the Delhi High Court insisted on the legislature to articulate gender neutral criminal law[34]. As a consequence of this judgment, the Supreme Court formulated issues that the Law Commission of India had to look into. This further led to the 172nd Law Commission Report[35].

(ii) 172nd Law Commission Report

The 172nd Law Commission Report of 2000 primarily dealt with the review of laws relating to sexual offences and recommended a lot of changes including gender neutrality. However, while an elaborate explanation for Sections 375 and 376[36] was given, the Report had very less to say about Section 377. Nonetheless, it recommended the deletion of this section under the following justification:

“In the light of the change effected by us in Section 375, we are of the opinion that Section 377 deserved to be deleted. After the changes effected by us in the preceding provision (Sections 375 to 376-E[37]), the only content left in Section 377 is having voluntary carnal intercourse with any animal, we may leave such person to their just deserts.[38]

While the deletion of Section 377 was recommended, not much was said about the gender neutrality aspects or the legal safeguards provided to the transgenders. However, the Report did not take shape until 2012, yet the trans community was able to witness the progress in the mindsets of the law-makers and this went on to give rise to another path-breaking judgment in Naz Foundation v. Govt. of NCT of Delhi[39].

(iii) In Naz Foundation v. Govt. of NCT of Delhi

The case of Naz Foundation v. Govt. of NCT of Delhi[40] acted as a major pathbreaker for the transgender community. The Naz Foundation is a non-governmental organisation working on HIV/AIDS and sexual education and health since 1994[41]. The Foundation filed a writ petition challenging the constitutional validity of Section 377 and the matter was heard before the Delhi Hight Court. The Delhi High Court having recognised the growing awareness towards homosexuality and transgenderism decriminalised Section 377 if the said act took place between two consenting individuals. The instant reaction to the judgment was of extreme elation from the sexual minorities across the nation while religious leaders condemned it with equal passion[42]. This ray of hope soon diminished when an appeal against the Naz Foundation was filed before the Supreme Court. On the other hand, prior to this appeal, in the year 2012 a committee was formed to review the rape laws of the country after the heinous Nirbhaya rape case[43]. This Committee was the Verma Committee[44].

(iv) The Verma Committee

The Verma Committee for the very first time heard the hues and cries of the LGBTQA community for the need of gender inclusive laws relating to sexual offences. The community was given a chance to express the lack of inclusivity and legal safeguards in crimes relating to sexual offences.

The Committee recommended retention of the law on rape and in addition making sexual assault a gender-neutral offence, unlike the 172nd Report, by using term “person” instead of “woman” for the purposes of defining victim of rape and sexual assault and retaining the term “man” for the perpetrator and thereby bringing within its scope the transgender community[45].

While this seemed like a huge victory for the trans community, it was only short-lived as although the Criminal Law (Amendment) Ordinance, 2013[46] took a very gender-neutral approach to rape law, the Criminal Law (Amendment) Act, 2013[47] only implemented the recommendations made to make the rape laws more stringent by widening the definition of “rape”. It did not consider the aspect of gender neutrality and retained the gender-specific definitions of these sexual offences. Amidst all this, came another coup de grâce, with the much criticised judgment in Suresh Kumar Koushal v. Naz Foundation[48].

(v) In Suresh Kumar Koushal v. Naz Foundation[49]

Unfortunately, the Supreme Court in this case overruled the judgment of the lower court in Naz Foundation v. Govt. of NCT of Delhi[50] and reinstated Section 377 in the year 2013. The Court held that the law laid down under Section 377 is constitutional and does not infringe the fundamental rights of the LGBTQA community[51]. The legally unsustainable rationale given by the Court was that firstly, the community constitutes a miniscule and negligible part of the population[52]; secondly, the Court cannot declare law ultra vires by relying on the decisions of foreign jurisdictions[53]. The Court further added that criminal law in a country is the reflection of the majoritarian public morality and the Indian society vehemently disapproved homosexuality[54]. While discarding the notions of privacy, the Court held that State interference in this case is justified on the ground of public health, safety and morality[55]. This move of the judiciary was heavily criticised and the trans community gained a lot of traction.

However, the Court did not completely rule out the probability of a reformation to Section 377. The judgment stated that “Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General.[56]

The decision led to hue and cry and was also criticised for not being in conformity with the International Covenant on Civil and Political Rights (ICCPR)[57], to which India is a signatory. This is when the judiciary had to finally take a stance on the position of transgenders both socially as well as legally. This led to the case of NALSA v. Union of India.[58]

(vi) In NALSA v. Union of India

The judiciary took a stance and granted the legal recognition of a “third gender” to the trans community in NALSA v. Union of India[59] in the year 2014.  The Court held that “person” under Article 14 is not limited to mean a man and a woman but extends to include within its scope of hijras and transgender persons who are neither male nor female[60]. The judgment also highlighted on the lack of legal safeguards for the community by stating that:

  1. 62. … non-recognition of the identity of hijras/transgender persons denies them equal protection of law, thereby leaving them extremely vulnerable to harassment, violence and sexual assault in public spaces, at home and in jail, also by the police. Sexual assault, including molestation, rape, forced anal and oral sex, gang rape and stripping is being committed with impunity and there are reliable statistics and materials to support such activities.[61]

The decision directed affirmative action on part of the Central and the State Governments to ensure non-infringement of fundamental rights, public health and social welfare of the community in light of the Yogyakarta Principles[62]. This gave a sense of relief to the LGBTQA community as their human rights were upheld despite the fact that they are insignificant in number. However, the pragmatic reality remained unchanged despite the recognition[63], until 2018 in Navtej Singh Johar v. Union of India.[64]

(vii) In Navtej Singh Johar v. Union of India

The Supreme Court in this case finally decriminalised Section 377 IPC. The law under Section 377 is gender neutral and includes sexual conducts of both heterosexuals and homosexuals; however, the burden of proof has often fallen on the latter only[65]. The Wolfenden Committee[66] in 1957 in its Report concluded that the purpose of criminal law is to preserve public decency and morality and furthered the thesis of J.S. Mill that argued private space must be free from State intervention[67]. This means that criminalising consensual homosexuality within the private space of two consenting, sound adults neither falls under the theoretical nor operational realm of criminal law and therefore must be decriminalised as it is a matter of privacy and private morality. Sexual orientation is an essential attribute of privacy. Discriminating against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual.[68] The State cannot demean their existence or control their destiny by making their private sexual conduct a crime[69].

The Constitutional Bench of the Supreme Court unanimously declared Section 377 IPC as unconstitutional to the extent it criminalises consensual sexual conduct between two adults in private, be it between homosexuals, heterosexuals, same sex or transgender sex[70], however, it continues to govern non-consensual sexual acts against adults, minors and acts of bestiality[71]. It stated that such consensual act is “natural” and cannot be termed against the “order of nature”.

After the legitimate recognition of the third gender through the NALSA[72] decision and other legal developments within the community, it was only fair to expect an enactment which would entail and protect the rights of transgenders. This led to the enactment of Transgender Persons (Protection of Rights) Act, 2019[73].

(viii) Transgender Persons (Protection of Rights) Act, 2019

The Transgender Persons (Protection of Rights) Bill, 2019[74] was first introduced and passed by the Lower House in the year 2016. However, the same was not passed by the Upper House, thereby the position of law coming to a standstill. Nonetheless, the Bill was reintroduced in the year 2019 and was passed by both the Houses along with presidential assent thereby making it an Act. While this Act was heavily criticised due to the lack of consultation from the representatives of the trans community, it also highlighted and brought into light some of the very common issues faced by the transgender, which had not yet been recognised.

The Act recognises the following offences against transgender persons: (i) forced or bonded labour (excluding compulsory government service for public purposes), (ii) denial of use of public places, (iii) removal from household, and village, (iv) physical, sexual, verbal, emotional or economic abuse. Penalties for these offences vary between six months to two years, and a fine[75].

While this Act did give some relief to the trans-activists as well as the community and stabilised the position of transgenders under the law of the land, India still has a long way to go in terms of inclusivity and protection of transgenders from sexual offences which shall be dealt with later on.

II. Need for inclusivity

While a lot has already been said about the position of law, there does remain a huge grey area wherein the sexual minority of the trans community is threatened. This is due to the lack of inclusivity. For the purpose of this study, the need for inclusive laws will be studied under three particular statutes i.e. (a) Penal Code, 1860 (b) Immoral Traffic (Prevention) Act, 1956[76] (c) POSH Act, 2013.

(a) Position of transgenders under IPC

While a lot has already been discussed about the various recommendations of reports and committees as well as other amendments and judicial pronouncements, Section 377 is still not an adequate solution for the sexual predatory of transgenders. The same will be discussed below.

The purpose behind gender neutrality of sexual offences under the IPC is not to desexualise the offence but to incorporate a holistic understanding of the nature of the offence beyond the lens of gender[77]. While the decriminalisation of Section 377 only extended to consensual acts of homosexuality between two adults and retained the criminalisation of the other non-consensual acts coming under the ambit of “unnatural offences”, the position of law still remains dicey. Additionally, this Section is not wide enough to consider all forms of sexual harassment or assault as any offence filed under this provision would amount to sodomy. It does not cover other forms of sexual offences such as rape, voyeurism, stalking, trafficking among many more which the transgenders are subjected to day in and day out. It must also be noted that most of these offences are also not “unnatural” and hence do not come under the purview of this Section. This analogy is drawn from Justice Verma Committee Report of 2013[78] wherein distinct sexual offences were identified that could have been committed against women and not all sexual offences were included under the umbrella of rape[79].

Along with Section 377, other provisions relating to sexual offences such as Section 354 which deals with all other forms of sexual offences such as stalking, voyeurism, etc. must also be amended to replace the word “any woman” with “any person” so as to ensure the protection of transgenders, in particular the Hijra community who have faced a lot of oppression by not only the society but also the law enforcement agencies due to their gender as well as their economic status which has made them a prey to such acts.

Upon the decriminalisation of consensual sexual conduct between two persons, it becomes imperative to make the other non-consensual sexual conduct, transgender neutral with a separate provision to administer the same and not include all offences under the umbrella of “unnatural offences”. It is important to categorise the offence as it is without dilution of all offences against the transgender community under the umbrella of Section 377[80].

The insistence is on the amendment of the criminal law on sexual offences provided for under IPC and not enactment of a separate gender-neutral legislation for sexual offences which even though seems to be convenient, is not an ideal way[81] as the no new enactment of legislation would have the same gravity and impact as the Penal Code, 1860. Apart from the gender neutrality and transgender inclusiveness of the sexual offence provided for under the IPC, other law governing the criminal domain also have to be amended for holistic recognition of the substantial right of the LGBTQA community[82] such as the POSH Act, 2013.

(b) Position of transgenders under POSH Act, 2013

The need for an enactment to protect women at workplace from sexual harassment arose from the very famous case of Vishaka v. State of Rajasthan[83], where a woman was gang raped by 6 men in her workplace where she was volunteering. Unfortunately, there was no law to protect women from such horrific incidents in the workplace and the Vishaka Guidelines was followed throughout India until 2013, when a law was enacted for the same.

Now, as the name suggests, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013[84], is gender specific and is only for the protection of women in workplace. However, it fails to take into consideration that men and transgenders can be victims of workplace sexual harassment too. To talk of transgenders in particular, this community is a sexual minority and is more prone to such assault and harassment than men, due to their gender and more than women due to the lack of laws protecting them.

With the legal recognition of the third gender and the enactment of Transgender Persons (Protection of Rights) Act, 2019, transgenders now have the freedom to work anywhere without any discrimination under the law. However, this does not mean that they would not be subjected to discrimination in the workplace due to the narrow societal and normative understanding of what constitutes “normal”. Transgenders are also subjected to sexual harassment in the workplace due to the male-predominant society that still does not accept the third gender as one of them, who are equally capable of working and earning.

The lack of gender neutrality in the POSH Act has been brought up many times. The reason given for the same by the 239th Parliamentary Standing Committee was that the majority of the victims of such incidents were women and hence it was a remedy provided under Article 15(4) of the Constitution which allows the Parliament to make any special provisions for the educationally or socially backward classes of citizens or SCs and STs. While this is nowhere a reasonable justification for the exclusion of men from the legislation, it certainly acts as a compelling argument to include transgenders in the Act due to their socially backward status. Transgenders have been able to come out of their closets and adapt to the normalcy of being a transgender only recently since all of the legal developments aforementioned. However, they still have a long way to go in order to attain the equal status of a male or a female in the eyes of the society. Therefore, this undoubtedly makes the community a socially backward one and hence they must be included in the Act going by the argument of the Parliament of making special provisions under Article 15(4).

Each person is entitled to right to life and right to live with dignity, and as such statutes that punish sexual offences cannot selectively protect one person[85]. The act of sexual harassment is a violation of a person’s human rights and well as the fundamental right to a dignified life. Therefore, making such crucial laws gender-specific only leads to a more blatant violation of such rights.

However, many companies in India today follow a gender-neutral system of sexual harassment policies such as Taj Group of Hotels and Godrej thereby protecting the safety of all their employees irrespective of their gender. One wishes to witness the same change in the POSH Act, 2013.

(c) Position of Transgenders under Immoral Traffic (Prevention) Act, 1956

It is no news that transgenders are one of the most affected communities when it comes to sex trafficking. The Immoral Traffic (Prevention) Act, 1956 was enacted with the sole purpose of preventing the trafficking of women and children. However, in the year 1986, due to the increasing number of people being trafficked for sexual exploitation an amendment was made to include not only male and female but also those who do not fall into either of the categories. This meant that male and transgenders became criminal subjects while the women became the victims. It failed to understand that transgenders also could become victims of human trafficking.
Furthermore, when the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018[86] was proposed, it heavily affected the trans community as the Bill criminalised the acts of beggary as well as consensual sex work. It stated that anyone undergoing “hormone therapy” would be arrested under the grounds of trafficking.

One should understand, that back in 2016, when the trans community had just gained legal recognition, it was still very difficult specially for the downtrodden and the Hijra community to actually make a living out of the organised sector. Due to decades of abandonment, they were forced to indulge in sex work and beggary. However, the criminalisation of the same meant a huge setback for the community as the Government neither consulted the community nor did they provide any alternative skill development programmes to make such people self-sufficient and contribute to the organised sector. Adding on, it is also a known fact that most of the transgenders undergo hormone therapy for their sex change procedures. The duration of the same would pan over a year or two. Criminalising the same under trafficking is preposterous as well as regressive. While the Bill is proposed out of bona fide, it must also take into consideration the multiple stakeholders of the Bill and propose a law that would be viable to all the stakeholders, as justice to one set of people, should not come at the cost of the other.

Conclusion

While the laws in the three statutes appear regressive and preposterous, one must also consider that the concept of transgenderism is still in its nascent stages and it would take a lot of time and social reconditioning for the society to become more inclusive towards the third gender. Nonetheless, reformations are the need of the hour and one can see that a lot of initiative are being taken up to fast-track the process of gender neutrality in the laws.

In 2020, a public interest litigation (PIL) was filed before the Supreme Court to highlight on the lack of penal provisions to safeguard transgenders from sexual offences, event after 6 years of gaining legal recognition. The plea has been filed by Advocate Reepak Kansal and has made the ministries of law and justice, and social justice and empowerment as parties[87]. This PIL filed stated that “though the Supreme Court in 2014, had granted ‘recognition to the transgender/ third gender as “persons” falling under the ambit of Article 14 of the Indian Constitution’, still they do not have equal protection of law in relation to sexual offences.[88]” The petitioner is filing this petition with respect to equal protection of law to the third gender/transgender from the sexual assault/offences as there is no provision/section in the IPC which may protect the third gender from the sexual assault by male/female or another transgender therefore, an anti-discrimination laws are needed to safeguard the basic citizenship rights of transgender persons,[89] the plea said. The PIL also challenged the constitutional validity of Section 354-A[90] in order to examine its extent and scope. It stated that the provision excluded transgender victims of sexual harassment and that it was ultra vires of Articles 14, 15 and 21 of the Constitution[91]. The same was heard by the Supreme Court, and the Supreme Court has sought reply from the Centre on the same matter. The stance of the Centre is yet to come on this matter.  Nonetheless, efforts are constantly being made to make the laws relating to sexual offences more inclusive and the same must be supported.

To sum it up, the law on rape as well as other sexual offences should have been made gender neutral as now the trans community, like women, belongs to the oppressed and vulnerable class prone to sexual violence and harassment owing to the societal power dynamics[92]. Right to seek protection from sexual assault is a right guaranteed by the Constitution and a crucial pillar to further gender justice and the same cannot be ignored[93]. The gender neutrality of sexual offences reflects a nuanced understanding of the nature and consequences of the sexual offences under the criminal law and recognising that women, men and the transgender community can be both victims and perpetrators of the crime[94].


BBA LLB (Hons.) 3rd year student at Faculty of Law, PES University, e-mail: charvidev01@gmail.com.

[1] (2014) 5 SCC 438.

[2] Art. 14, Constitution of India.

[3] <http://www.scconline.com/DocumentLink/9etOajU7>.

[4] <http://www.scconline.com/DocumentLink/VN1u87S9>.

[5] Menon, N. (2013), Seeing Like a Feminist, Zubaan and Penguin Books India Pvt. Ltd.

[6] Menon, N. (2013), Seeing Like a Feminist, Zubaan and Penguin Books India Pvt. Ltd.

[7] Narrain, S. (2003), Being A Eunuch, Frontline. Retrieved from <http://www.countercurrents.org/gen- narrain141003.htm> on 4-1-2014.

[8] Human Rights Violations against the Transgender Community: A Study of Kothi and Hijra Sex Workers in Bangalore, India, (2003), Peoples’ Union for Civil Liberties, Karnataka (PUCL-K). Retrieved from <http://www.pucl.org/Topics/Gender/2004/transgender.htm> on 3-1-2014.

[9] Sumit Chaturvedi, Abuse of Transgender Indians Begins in Early Childhood, IndiaSpend, <https://www.indiaspend.com/abuse-of-transgender-indians-begins-in-early-childhood-94265>.

[10] Sumit Chaturvedi, Abuse of Transgender Indians Begins in Early Childhood, IndiaSpend, <https://www.indiaspend.com/abuse-of-transgender-indians-begins-in-early-childhood-94265>.

[11] Shruti Jain, Pride Month 2020: Evaluating the Transgender Persons Act, 2019, Observer Research Foundation, <https://www.orfonline.org/expert-speak/pride-month-2020-68965/>.

[12] Human Rights Violations against the Transgender Community: A Study of Kothi and Hijra Sex Workers in Bangalore, India, (2003), Peoples’ Union for Civil Liberties, Karnataka (PUCL-K). Retrieved from <http://www.pucl.org/Topics/Gender/2004/transgender.htm> on 3-1-2014.

[13] <http://www.scconline.com/DocumentLink/017ZVaHb>.

[14] <http://www.scconline.com/DocumentLink/DPp4NYnl>.

[15] <http://www.scconline.com/DocumentLink/han6y263>.

[16] <http://www.scconline.com/DocumentLink/ucPDKUb8>.

[17] Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1.

[18] <http://www.scconline.com/DocumentLink/wNz74jV9>.

[19] 2009 SCC OnLine Del 1762.

[20] Philip N.S. Rumney, In Defence of Gender Neutrality within Rape, Seattle Journal for Social Justice (6-5-2017, 01.57 a.m.), <https://digitalcommons.law.seattleu.edu/sjsj/vol6/iss1/40/>.

[21] Philip N.S. Rumney, In Defence of Gender Neutrality within Rape, Seattle Journal for Social Justice (6-5-2017, 01.57 a.m.), <https://digitalcommons.law.seattleu.edu/sjsj/vol6/iss1/40/> at 485-487.

[22] Tukaram v. State of Maharashtra, (1979) 2 SCC 143

[23] Tukaram case, (1979) 2 SCC 143 .

[24] Tukaram case, (1979) 2 SCC 143 .

[25] Flavia Agnes, Law, Ideology and Female Sexuality: Gender Neutrality in Rape Law, 37 Economic and Political Weekly No. 9, 844 (2002).

[26] Sakshi v. Union of India, (2004) 5 SCC 518 .

[27] S. 377, Penal Code, 1860.

[28] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1

[29] AIDS Bhedbhav Virodhi Andolan, Less than Gay: A Citizens’ Report on the Status of Homosexuality in India, ABVA, (12-5-2019, 21.41 p.m.), <https://docs.google.com/file/d/0BwDlipuQ0I6ZMXVmNWk0ajdqWEU/edit>.

[30] AIDS Bhedbhav Virodhi Andolan, Less than Gay: A Citizens’ Report on the Status of Homosexuality in India, ABVA, (12-5-2019, 21.41 p.m.), <https://docs.google.com/file/d/0BwDlipuQ0I6ZMXVmNWk0ajdqWEU/edit>.

[31] Divya Aswani, Transgender Neutrality of Sexual Offences: An Aftermath of Decriminalization of Section 377, NLUD Journal, <http://14.139.58.147:8080/jspui/bitstream/123456789/307/1/40LLM18.pdf>.

[32] 1996 SCC OnLine Del 397 : 1998 Cri LJ 2428.

[33] 1996 SCC OnLine Del 397 : 1998 Cri LJ 2428.

[34] 1996 SCC OnLine Del 397 : 1998 Cri LJ 2428, para 29.

[35] <http://www.scconline.com/DocumentLink/1935iv62>.

[36] <http://www.scconline.com/DocumentLink/H3Z8GN57>.

[37] <http://www.scconline.com/DocumentLink/1h30GnSs>.

[38] Ministry of Law, Government of India, One Hundred and Seventy-Second Report on Review of Rape Laws, Law Commission of India (2000).

[39] 2009 SCC OnLine Del 1762.

[40] 2009 SCC OnLine Del 1762.

[41] <http://www.nazindia.org/about.htm>.

[42] Nirnimesh Kumar, Delhi High Court Strikes Down Section 377 of the IPC, The Hindu, 2-7-2009, New Delhi.

[43] Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1.

[44] <http://www.scconline.com/DocumentLink/Bq5pU80d>.

[45] Flavia Agnes, Law, Ideology and Female Sexuality: Gender Neutrality in Rape Law, Economic and Political Weekly (6-5-2019, 12.21 p.m.), <https://www.jstor.org/stable/4411809>.

[46] <http://www.scconline.com/DocumentLink/MLv276UW >.

[47] <http://www.scconline.com/DocumentLink/YZ81TAt0>.

[48] (2014) 1 SCC 1.

[49] (2014) 1 SCC 1.

[50] 2009 SCC OnLine Del 1762.

[51] Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.

[52] Suresh case, (2014) 1 SCC 1.

[53] Suresh case, (2014) 1 SCC 1.

[54] Rukmini Sen, Breaking Silences, Celebrating New Spaces: Mapping Elite Responses to the “Inclusive” Judgment, NUJS Law Review (13-5-2019, 10.19 a.m.), <http://nujslawreview.org/wp- content/uploads/2016/12/rukmini-sen.pdf>.

[55] Gautam Bhan, Challenging the Limits of Law: Queer Politics and Legal Reform in India in Because I Have a Voice: Queer Politics in India, 468 [Arvind Narrain and Bhan Gautam (eds.), 2005].

[56] Suresh case, (2014) 1 SCC 1.

[57] International Covenant on Civil and Political Rights, 19-12-1966, S. Treaty Doc. No. 95-20, 6 ILM 368 (1967), 999 UNTS 171; Universal Declaration of Human Rights, GA Res. 217A (III), UN Doc. A/810 at 71 (1948).

[58] (2014) 5 SCC 438.

[59] (2014) 5 SCC 438.

[60] (2014) 5 SCC 438,

[61] (2014) 5 SCC 438, 487.

[62] Yogyakarta Principles: Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity, International Commission of Jurists (15-5-2019, 17.11 p.m.), <https://www.refworld.org/docid/48244e602.html>.

[63] Tukaram v. State of Maharashtra, (1979) 2 SCC 143

[64] (2018) 10 SCC 1.

[65] Geetanjali Misra, Decriminalizing Homosexuality in India, Taylor and Francis Group (13-5-2019, 14.49 p.m.), <https://www.jstor.org/stable/40647442>.

[66] Wolfenden Committee, Report on Homosexual Offences and Prostitution, (Chairman: Sir John Wolfenden, 1957).

[67] H.L.A. Hart, Law, Liberty and Morality, 88 Stanford University Press (1963).

[68] K.S. Puttaswamy v. Union of India, (2018) 1 SCC 809, para 126.

[69] Justice Kennedy, Lawrence v. Texas, 2003 SCC OnLine US SC 73 :  156 L Ed 2d 508 : 539 US 558, para 18 (2003).

[70] Navtej Singh Johar v. Union of India, (2018) 1 SCC 791.

[71] (2018) 1 SCC 791, para 21

[72] (2014) 5 SCC 438.

[73] Transgender Persons (Protection of Rights) Act, 2019.

[74] <http://www.scconline.com/DocumentLink/hyED4Wys>.

[75] <http://www.scconline.com/DocumentLink/87UM7Ym2>.

[76] <http://www.scconline.com/DocumentLink/ucPDKUb8>.

[77] Harshad Pathak, Beyond the Binary: Rethinking Gender Neutrality in Indian Rape Law, Cambridge University Press (3-5-2019, 17.55 p.m.), <https://www.cambridge.org/core/journals/asian-journal- of-comparative-law/article/beyond-the-binary-rethinking-gender-neutrality-in-indian-rape- law/9BC983FB009B7BBDEB78CED0BC5144C0>.

[78] The Criminal Law (Amendment) Act, 2013, No. 13, Acts of Parliament, 2013.

[79] <http://www.nazindia.org/about.htm>.

[80] Sakshi Raje, Transgender: The Human Rights, Law Times Journal (11-5-2019, 10.51 a.m.), <http://lawtimesjournal.in/transgender-the-human-rights/>.

[81] (2014) 1 SCC 1.

[82] Animesh Sharma, Section 377: No Jurisprudential Basis, Economic and Political Weekly (14-5-2019, 14.33 p.m.), <https://www.epw.in/journal/2008/46/commentary/Section-377-no- jurisprudential-basis.html?0=ip_login_no_cache%3D7f2e2da6d0d55a917ff3ebc34c05b74e>.

[83] (1997) 6 SCC 241.

[84] Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

[85] Beyond the Binary: Rethinking Gender Neutrality in Indian Rape Law, Asian Journal of Comparative Law, p. 376 (2016).

[86] <http://www.scconline.com/DocumentLink/27IkNY72>.

[87] SC Seeks Centre’s Reply on PIL for Equal Protection of Law to Transgenders in Sexual Offences, Indian Express, <https://www.newindianexpress.com/nation/2020/oct/12/sc-seeks-centres-reply-on-pil-for-equal-protection-of-law-to-transgenders-in-sexual-offences-2209251.html>.

[88] SC Seeks Centre’s Reply on PIL for Equal Protection of Law to Transgenders in Sexual Offences, The Indian Express, <https://www.newindianexpress.com/nation/2020/oct/12/sc-seeks-centres-reply-on-pil-for-equal-protection-of-law-to-transgenders-in-sexual-offences-2209251.html>.

[89] SC Seeks Centre’s Reply on PIL for Equal Protection of Law to Transgenders in Sexual Offences, The Indian Express, <https://www.newindianexpress.com/nation/2020/oct/12/sc-seeks-centres-reply-on-pil-for-equal-protection-of-law-to-transgenders-in-sexual-offences-2209251.html>.

[90] <http://www.scconline.com/DocumentLink/rKlU5i88>.

[91] Constitution of India <http://www.scconline.com/DocumentLink/Uei3bEDC>

[92] State Govt. v. Sheodayal Gurudayal, 1954 SCC OnLine MP 100 .

[93] Ministry of Law, Government of India, Committee on Amendments to Criminal Law (Chairperson: Justice J.S. Verma, 2013).

[94] Philip N.S. Rumney, In Defence of Gender Neutrality within Rape, Seattle Journal for Social Justice (6-5-2019, 1.57 a.m.), <https://digitalcommons.law.seattleu.edu/sjsj/vol6/iss1/40/>.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: In a historic judgment Anu Sivaraman, J., had broken the norm by allowing trans women to appear for enrolment in the National Cadet Corps female wing. The Bench remarked,

“Petitioner who has opted for the female gender and has undergone sex reassignment surgeries for aiding her self perception as a member of the said gender would definitely be entitled to enrolment in the NCC unit reckoning her as a transgender and further as a member of her self perceived gender, that is, the female gender.”

In the instant case, the petitioner, a trans women had approached the Court after being aggrieved by denial to be considered for enrolment in NCC by the respondents. The petitioner had urged the Court to declare Section 6 of the NCC Act, 1948 as illegal and ultra vires of Articles 14, 15 and 21 of the Constitution to the extent it excludes transgender community from enrolment with the NCC and to direct the respondent to amend the enrolment criteria to include Transgender community as well. Also, to direct the respondents to take necessary steps for enrolment of the petitioner in the NCC.

The petitioner was assigned male gender at the time of her birth and later on, at the age of 21, a sex re-assignment surgery was performed. It was stated that further surgery was performed on 27-05-2019 and the petitioner’s name had also been changed as Hina Haneefa. A transgender identity card was also issued to the petitioner showing her gender as female. The grievance of the petitioner was that she was declined admission to the NCC unit by an Associate NCC officer on the ground that there was no provision for enrolment of transgender students.

Reliance was placed by the petitioner on the decision of Supreme Court in National Legal Services Authority v. Union of India, (2014) 5 SCC 438, as also on the provisions of the Transgender Persons (Protection of Rights) Act, 2019 to contend that the petitioner was entitled and eligible for enrolment on the basis of the certificates produced by her. The petitioner submitted that, after the authoritative pronouncement by the Supreme Court with regard to rights of transgender persons to a life with human dignity, and that,

“The continued actions on the part of the respondents in perpetuating discrimination against persons like the petitioner only for the reason that she was born with the characteristic of a gender which did not match her self-perceived gender identity amounts to violation of the petitioner’s valuable rights guaranteed under Article 14, 15, 19 and 21 of the Constitution of India.”

Stand Taken by the State

The claims of the petitioner were vehemently opposed by respondents, it had been argued that the curriculum and training module in Armed Forces is gender-specific and also, in organizations like Armed Forces or NCC close physical contact, confined stay under field conditions, sharing of basic facilities like accommodation, toilets, bathing, sleeping facilities etc. are routine rather than exception, hence, it was argued that there is a need for gender-specific regulations.

“…hypothetically a biological male, who is either Transvestite (Cross-Dresser), Bigender, Demigender or Transsexual not undergone any medical procedure but assumes the gender identity of a female in spite of his sexual orientation as bisexual or heterosexual, is eligible to get enrolled in to a girls NCC unit. …Presence of such a person in common bathroom, sleeping area and in close contact physical training activities etc. will be a violation of privacy and dignity of a girl cadet.”

Section 6 of the NCC Act, 1948 read as:

  1. Enrolment.-(1) Any student of the male sex of any university may offer himself for enrolment as a cadet in the Senior Division, and any student of the male sex of any school may offer himself for enrolment as a cadet in the Junior Division if he is of the prescribed age or over.

(2) Any student of the female sex of any university or school may offer herself for enrolment as a cadet in the Girls Division.”

Hence, the stand of the respondent was that there is requirement for more detailed categorization of transgender based on their biological features and sexual orientation to assign them which is the prerogative of the Central Government. The respondent also contended that primary aim of NCC is to groom the cadets for a future with the Army Forces whereas there is no provision existing for entry of transgender (Female/Male) in the Indian Armed Forces. It had been further submitted that, 

“NCC Act recognizes only persons belonging to the male or female gender and since the petitioner is admittedly a transgender, she cannot be enrolled in the NCC”.

Analysis and Decision

Considering the above mentioned; the Bench opined that the right of a human being to choose sex or gender identity is integral to his or her personality and is one of the most basic aspects of self-determination, dignity and freedom. Criticizing the stand taken by the respondent the Bench remarked,

“We cannot take recourse to the outdated provisions of a 1948 enactment to deal with the realities of life in the year 2021. The situation has to be viewed in the light of the 2019 Act which recognises the right of transgender persons to a life with dignity and prohibits discrimination against them.”

Regarding the argument that the NCC Act did not recognize the third gender or that detailed guidelines were required to be drawn up for the integration of persons of the third gender into the Armed Forces or the National Cadet Corps, the Court stated the same could not be a justification for denying admission to the petitioner to the NCC unit on the basis of the Identity Card obtained by her.

“The petitioner who had opted for the female gender and had undergone sex reassignment surgeries for aiding her self perception as a member of the said gender would definitely be entitled to enrolment in the NCC unit reckoning her as a transgender and further as a member of her self perceived gender, that is, the female gender.”

Hence, it had been held that the petitioner was entitled to enrolment in the NCC senior girls’ division and the rejection of the request of the petitioner for such enrolment was completely unsustainable. Consequently, the petition was disposed of with the directions to the respondents to do the needful shall with regard to the application of the petitioner within a period of one month. Further, the state was directed to amend the enrolment criteria prescribed under Section 6 of the NCC Act, 1948 to include the transgender community and to provide guidelines for enrolling transgender persons also in the NCC.[Hina Haneefa v. State of Kerala, WP(C). No. 23404 of 2020, decided on 15-03-2021]


Kamini Sharma, Editorial Assistant reported this brief.


Appearance before the Court by:

For the Petitioner: Adv. C.R. Sudheesh, Adv. Raghul Sudheesh, Adv. J. Lakshmi, Adv. K. J. Glaxon and Adv. Sanish Sasi Raj

For the Respondents: SC. Thomas Abraham, Adv. N. S. Daya Sindhu Shree Hari and Adv. K. Arjun Venugopal

Op EdsOP. ED.

“People will sometimes put each other in boxes and have biases toward one another because of what they look like or where they come from or who they are.”[1]

There is a section of our society comprising of individuals; often seen dancing on roads, begging for alms and sometimes arriving uninvited to marriages and birth events, showering blessings of good health and longevity in an exchange for money. The same community, which is widely feared for its ‘power’ to bring misfortune on utterance of a curse, unfortunately, is itself, subject to abuse, exploitation and banishment. Individuals of this community, termed variedly as Eunuchs, Hijras, Aravani, Jogappas, etc., in different parts of our country, represent gravely marginalised units of our society; largely unloved, uncared for and in several instances subject to incidents of extreme violence, torture and poverty. At yet, another end of the spectrum is a group, comprising of individuals; who do not strictly conform with the majority defined, “male” and “female” genders and gender roles. This group comprises of individuals who may dress and behave differently to their biologically assigned genders/ gender attributes and in certain cases, those who might have undergone painful surgical operations to match their external appearances to their perceptions and beliefs of self. The situation of this group, too, is no different. Though, broadly disjunct, a thread of commonality binds these two groups; firstly, under the name/title, “Transgender” and secondly, unfortunately, under the recurrent instances of ridicule, humiliation, ostracism and societal apathy, that such individuals are subjected to on a day-to-day basis.

The Supreme Court[2], while acknowledging, the term “Transgender” to be quite wide and expansive, observed, “Transgender is generally described as an umbrella term for persons whose gender identity, gender expression or behaviour does not conform to their biological sex. TG may also take in persons who do not identify with their sex assigned at birth, which include hijras/eunuchs who, in this writ petition, describe themselves as “third gender” and they do not identify as either male or female.” As per the Court, the said term, further, includes; pre-operative, post-operative and non-operative transsexual people, “who strongly identify with the gender opposite to their biological sex: male and female.”

Several countries across the world have acknowledged their responsibility towards issues related to gender-identity and sexual-orientation. It is largely accepted that the concepts of gender identity and sexual orientation of an individual are intrinsically intertwined. While the former relates to the inner sense of being male, female or transgender or transsexual person; the latter connotes an individual’s enduring physical, romantic and/ or emotional attraction to another person. Pursuant to their commitments towards their nationals and citizens, many counties have shunned the principles enunciated in Corbett v. Corbett[3]. In the said case, Ormrod, L.J. set out four criteria[4] for determining ‘sex’ and held that law should adopt and analyse the congruency of chromosomal, gonadal and genital test alone (and not psychological test/ beliefs) to determine person’s sex.  Omrod, L.J. further, rejected the argument that a surgical procedure could change a person’s sex. However, progressing significantly from the archaic and discriminatory principles laid down in the said case, countries such as the United Kingdom[5], Germany[6], Australia[7], etc. have enacted laws, inter alia, recognising the rights of transsexual persons.

Article 1 of the Universal Declaration of Human Rights (“the Declaration”) inter alia, provides, “All human beings are born free and equal in dignity and rights.”Article 6 of the Declaration read along with Article 16 of the International Covenant on Civil and Political Rights (“the Covenant”) confer on every individual, a right of recognition as a person before the law. Further, Article 17 of the Covenant, inter alia, provides, “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.”

Recognising the need for setting out of principles for the application of international human right laws in relation to sexual orientation and gender identity, a distinguished group of international human rights experts met in Yogyakarta, Indonesia in the year 2006. Pursuant to such meeting, certain guidelines/principles, known as the Yogyakarta Principles, were formulated recognisng and conferring, inter alia, right to universal enjoyment of human rights; rights to equality and non-discrimination; right to recognition before law; right to life; right to security of person; right to privacy; etc. to everyone, regardless of sexual orientation and gender identity and prescribed the rile to be played by respective State/ State authorities to ensure guarantee of such rights. Pertinently, in November 2017, the said Principles were updated by the adoption of “Additional Principles and State Obligations on the Application of International Human Rights Law in relation to Sexual Orientation, Gender Identity, Gender Expression and sex characteristics to complement the Yogyakarta Principles[8] Accordingly, additionally, rights and obligations, inter alia, in relation to State protection; legal recognition; right to sanitation; right to protection from poverty, etc. were prescribed.

Under the Indian Constitution (“the Constitution”), under Article 14, an obligation is cast on the State, not to deny to  any  person  “equality before the law or the equal protection of the laws within the territory of India”. Articles 15 and 16 of the Constitution further prohibit discrimination, inter alia, on the ground of sex. Under the provisions of Articles 19(1)(a) and 21 of the Constitution, right to freedom of speech and expression to all citizens of India and right to life and person liberty to all individuals respectively, is guaranteed.

The Supreme Court in National Legal Services Authority v. Union of India[9], carried out an exhaustive review of the current laws across the globe, recognising the rights of Transgenders and contrasted the same with the conditions of such individuals in India. The Supreme Court, accordingly, stepped in to fill the lacunae by, inter alia, recognising Hijras, eunuchs, apart from binary genders, be treated as “third gender” for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by Parliament and the State Legislature. Simultaneously, the transgender persons’ right to decide their self-identified gender was upheld and the Central and State Governments were directed to grant legal recognition of their gender identity such as male, female or as third gender. The Supreme  Court was further pleased to issue directions to the Central and State Governments to take steps to treat such individuals as socially and educationally backward classes of citizens, extending all kinds of reservations in case of admission in educational institutions and public appointment; take measures for framing various social welfare schemes for their betterment; develop a sense of acceptability and address issues such as fear, shame, gender dysphoria, etc., faced by such individuals, etc. Pertinently, in the meanwhile, an Expert Committee constituted in the Ministry of Social Justice & Empowerment had submitted its report on the issues relating to Transgender persons on January 27, 2014, recommending, inter alia, formulation of an umbrella scheme for transgender persons for empowerment of transgender community, extending educational, welfare policies to the transgenders, etc.

Subsequent to the judgment of the Supreme Court, the Transgender Persons (Protection of Rights) Bill, 2016 (“the 2016 Bill”) was introduced in the Lok Sabha on August 2, 2016. The 2016 Bill defined a transgender person[10] as, “one who is (i) neither wholly female or male; (ii) a combination of female and male; or (iii) neither female nor male and whose sense of gender does not match the gender assigned at birth, and includes trans-men and trans-women, persons with intersex variations and gender-queers.” Under Section 3 thereof, prohibited discrimination against a transgender person, including denial of service or unfair treatment, inter alia, in relation to education; employment; healthcare; access to, or enjoyment of goods, facilities, opportunities available to the public; right to movement; etc. Significantly, under Section 4 of the said Bill right of recognition of gender/gender identity was provided. An obligation was cast on the appropriate government[11], under Section 9 of the 2016 Bill, to formulate welfare measures, in particular, to secure  full  and  effective participation of transgender persons and their inclusion in society. Section 13 of the said Bill, confers right of residence to the transgenders; grievance redressal mechanism (under Section 12); non-discrimination in employment (Section 10); obligation on the educational institution to provide inclusive education to transgender (Section 14); etc. The Bill further recognised offences such as begging, forced or bonded labour (excluding compulsory government service for public purposes); denial of use of a public place; denial of residence in household, village, etc. and physical, sexual, verbal, emotional and economic abuse under Section 19 of the 2016 Bill. Under Section 17 of the said Bill, establishment of National Council for Transgender was provided, inter alia, to advice the government, monitor, review, etc., policies and programmes for transgender persons. Though the 2016 Bill was an appreciable step in regard of recognition of rights of transgenders, however, the same could not be adopted in a statutory form.

Quite recently, the Transgender Persons (Protection of Rights) Bill, 2019 (“the 2019 Bill”) was introduced in Lok Sabha on July 19, 2019 by the Minister for Social Justice and Empowerment. The 2019 Bill was passed by the Lok Sabha on August 5, 2019 and by the Rajya Sabha on November 26, 2019. Thereafter, with the assent of the  President on December 5, 2019, the said Bill has been adopted as the Transgender Persons (Protection of Rights) Act, 2019[12] (“the Act”). The said Act, under Section 2(k) defines transgender person as “a  person  whose  gender  does  not  match  withcthe  gender  assigned  to  that  person  at  birth  and  includes  trans-man  or  trans-womanv(whether  or  not  such  person  has  undergone  Sex  Reassignment  Surgery  or  hormonetherapy  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.”

Similar to the 2016 Bill, the Act prohibits discrimination under Section 3; confers right on transgenders to self-perceived gender identity (Section 4); casts an obligation on appropriate government to formulate welfare measures (Section 8), programmes for welfare and self-employment (Section 14) and health care facilities for transgenders (Section 15); prohibits discrimination in employment (Section 9); etc., besides establishment of National Council for Transgender closely akin to as provided under the 2016 Bill.

The 2019 Act is a first statutory enactment meant for amelioration of the conditions of the transgenders. However, the same is highly criticised as a “draconian and discriminatory” form of legislature, by several proponents of the transgender community. Pertinently, even at the time of the discussions on the 2019 Bill in the Rajya Sabha, one of the prominent Members[13] had objected to certain provisions thereof and sought for a reconsideration on such provisions. As per the said Member, provision[14] under the Bill relating to certificate of identity, recognising an individual as transgender, were discriminatory and derogatory to a human being. Unfortunately, such objections were not considered or rectified while passing the Bill. The Act, inter alia, has also been criticised on the ground that the penalty for the offences prescribed under the said Act are not stringent. It has been further gravely objected that the Act does not clearly cater to all communities and forms of expression of gender identity, gender expression and sex characteristic issues and that even the definition provided therein of “transgenders” is not exhaustive.

Undoubtedly, the efficiency and effectiveness of any Act/legislature gets tested with time, its implementation and judicial scrutiny. Further, though, some loopholes existing in certain provisions of the Act are quite apparent, however, the reality remains that the said Act is the first step in the enduring struggle of the transgender community for their identity recognition. Amendment, judicial pronouncement and proactive suggestions would act as effective tools to mould the Act, as it exists today. Undeniably, the Act has a long way to go, to cater to all issues which the transgender community has been subjected to from ages. Despite all, the Act marks a legislative recognition, though, maybe flawed, of the rights of a community which has long remained unnoticed and under the shadows of the majority. It does not, however, go without saying that there is an imminent need of societal acceptability of these groups’ individuals, who despite abolition of untouchability in our country, are subject to bear the brunt of neglect and ostracism. Progressive development would be meaningful only when the county with all its participating members grow uniformly and that the same is not at the cost of subjugation of one over another. Accordingly, such acceptance and compassion towards the transgender community is a first step in the long journey towards development.


*Managing Associate, L&L Partners Law Offices 

[1] Rich Moore

[2] National Legal Services Authority v. Union of India, (2014) 5 SCC 438

[3] [1970] 2 WLR 1306  : (1970) 2 ALL ER 33

[4] (i) Chromosomal factors; (ii) Gonadal factors (i.e. presence or absence of testes or ovaries); (iii) Genital factors (including internal sex organs); (iv) Psychological factors. Transsexualism was deemed to fall under ‘Psychological factors’.

[5] The Gender Recognition Act, 2004 and the Equality Act, 2010

[6] Civil Statutes Act

[7] Sex Discrimination Act, 1984 and Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act, 2013

[8] Also known as the Yogyakarta Principles plus 10

[9] (2014) 5 SCC 438

[10] Section 2(i) of the Transgender Persons (Protection of Rights) Bill, 2016

[11] Section 2(a) of the Transgender Persons (Protection of Rights) Bill, 2016- (a) “appropriate Government” means,-(i) in relation to the Central Government or any establishment, wholly or substantially financed by that Government, the Central Government; (ii)  in  relation  to  a  State  Government  or  any  establishment,  wholly  or substantially  financed  by  that  Government,  or  any  local    authority,  the  State Government;”

[12] Transgender Persons (Protection of Rights) Act, 2019 

[13] Samajwadi Party (SP) MP, Mrs Jaya Bachchan

[14] Section 5 of the Transgender Persons (Protection of Rights) Bill, 2019 and Section 5 of the Transgender Persons (Protection of Rights) Act, 2019.