The transgender community in India has had a clear presence throughout the ages, and yet, even in the 21st century, they have very few rights. This makes the Indian transgender community one of the most vulnerable in the country. While included within the larger LGBTQIA+ spectrum in India, the transgender community is doubly marginalised. Their very visual and culturally significant presence has always kept them beyond the “closet”, making them easy targets of violations and abuse for centuries. Relegated to ghettoes in most places, and without any legal access to jobs, the transgender community is also poverty stricken.
Even now, when more legislations have been introduced to safeguard their rights, the transgender community most often faces discriminations and loss of opportunities. You might read heartening news, like the one where a transgender couple in Kerala appealed to the High Court to let them get married under their trans identities. Or the fact that court rulings across the nation are positively upholding the rights of transgender persons in impactful cases. But the fact still remains that those in the transgender community aren’t always privileged enough to get access to such rights, or have the means to contest them in courts of law. Here’s what you need to know.
The Evolution Of Transgender Rights
A 2015 study published in the Asian Review of Social Sciences explains that transgenders have existed and been recognised in India since ancient times. The Manusmriti defines transgender persons in some detail, while the Mahabhaya—Patanjali’s seminal work—refers to transgenders as one of the “natural genders”. The Tolkappiyam, the earliest work of Tamil grammar, also makes a similar reference. Even in Vedic astrology, the transgender community is well recognised as the Tritiya prakriti, which is associated with Mercury, Saturn and Ketu. The Puaranas mention three kinds of supernatural beings or devas associated with music and dance: apsaras (female), gandharvas (male) and kinnars (transgender individuals). However, as the study shows, the transgender community was not criminalised in any way during this or the later period of our history—until the British colonial rule emerged.
The study explains how in the second half of the 19th century, the British colonial administration exceedingly sought to criminalise a cultural community of transgender and gender non-conforming individuals called the hijra community in India by demarcating them as not a separate gender, but a separate caste or tribe that largely lived through criminal means. The Criminal Tribes Act of 1871, therefore, clubbed major transgender communities in India, like the hijras, khwajasarais and kothis, as one tribe that kidnapped and castrated children, engaged in sodomy (which challenged the British sensibility of “masculinity”), and dressed like women to dance for money in public places. According to this Act, transgender persons caught engaging in any of these acts could be imprisoned for up to two years, fined or both. Plus, all “eunuchs” had to be registered under the Act so that they could be put under surveillance and their criminal activities prevented.
While the law itself was introduced and implemented by the British authorities, one must admit the fact that they could not have been properly executed unless large sections of the Indian society also stigmatised and marginalised the transgender community. Given how vary people in orthodox societies are of those perceived as “the other”, this fact cannot be denied, and the role cisgender heterosexual Indians have played in the plight of the transgender community must be recognised if we are to move forward and claim any sort of justice for the community today. After all, the effect of the Criminal Tribes Act was far-reaching for the transgender community, especially since it not only criminalised them but also gave authorities the right to take away any children living in the gender non-conforming communities of India. The transgenerational trauma of this Act and its implementation until 1952, when it was finally repealed, form the very basis of the discriminations the transgender community faces even today.
NALSA vs Union of India, 2014: How The Landscape Shifted
Even though the Criminal Tribes Act was repealed in 1952, there was very little else done on the Constitutional or legal front in India to ensure that the generations of marginalisation and discrimination faced by the transgender community was addressed. While India had a role to play in the United Nations and signed not only the Universal Declaration of Human Rights in 1948 but also joined global efforts to promote equality across genders and classes, transgender rights remained very low on the priority list. Many welfare organisations worked over the years to emancipate and empower the transgender community, but largely, the community continued to face discrimination and stigma.
According to a 2020 report by the non-profit legal news service, Jurist, this landscape shifted in 2014. During that year, the Supreme Court made a landmark decision in the National Legal Services Authority (NALSA) versus Union of India. For the first time, the apex court announced that the transgender community has the same fundamental rights under the Constitution of India as everyone else, irrespective of gender identification. Overall, the decision gave the transgender community the following rights:
• The transgender community was legally recognised as "the third gender", and the Supreme Court affirmed that not recognising them in criminal and civil cases is clear and illegal discrimination against them.
• Those going through Gender Affirmative Therapy are also legally recognised. The identity of individuals undergoing gender transition must be based on a psychological test, and not a biological test.
• The central and state governments are directed to provide not only proper medical care to the transgender community, but also to create separate toilets and other public facilities for them. Further, separate HIV surveillance measures must be ensured for transgender individuals.
• The central and state governments are directed to treat transgender individuals as socially and economically backward classes. They must be provided reservations for education and jobs, and social welfare schemes for the transgender community must be introduced.
• The central and state governments must create public awareness programmed to deal with the stigma associated with them. Mental health issues like fear, shame, gender dysphoria, depression and suicidal tendencies among transgender individuals must be taken seriously.
Transgender Persons (Protection of Rights) Act
This landmark judgement opened the path towards more legal empowerment of the transgender community, while also empowering the larger LGBTQIA+ movement in the country. However, the legal framework to operationalise the above mentioned changes recommended by the court was absent. To remedy this, the Transgender Persons (Protection of Rights) Act was drafted time and again—in 2014, 2016 and 2018—but failed to pass due to regressive provisions that could be abused to target the community instead of helping them. These regressive provisions included the establishment of a screening committee to ascertain if an applicant qualified as transgender. The 2019 draft of the Act—which was passed in 2019—was also heavily critiqued because the mandated medical examination was a clear infringement of a person’s right to bodily autonomy and right to privacy. Further, terms like “transgender” and “discrimination” were left undefined, opening them up for abuse as well.
Finally, in 2020, the Union Ministry of Social Justice and Empowerment notified the Transgender Persons (Protection of Rights) Rules 2020, to bridge the gap between the Supreme Court directions in 2014 and the 2019 Act. The following are the clarifications the Rules offered:
• Discrimination was defined as “any distinction, exclusion or restriction on the basis of gender identity and expression which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field and includes all forms of discrimination, including denial of reasonable accommodation.” This definition was removed from the final rules that were notified.
• The mandatory medical examination requirement has been removed. Those who have already registered themselves as transgender identifying individuals before the enactment of the 2019 Act do not have to submit any records for further identification. New applicants or those seeking a revised certificate of identity-based on any gender-affirming medical interventions must submit a certificate issued by the medical superintendent or chief medical officer of the medical institution to their district magistrate. Based on the certificate provided by the district magistrate, other identity proofs must be changed within 15 days.
• The definition of medical intervention has been broadened well beyond just “surgery”. Rule 2 defines medical intervention as any gender-affirming medical intervention undertaken by the individual to facilitate their transition to their self-identified gender, including but not limited to counselling, hormonal therapy and surgical intervention.
• The Rules make the provision to start welfare boards to ensure non-discrimination in public life, including the formation of a Transgender Protection Cell and the drafting of an Equal Opportunity Policy. However, the Rules don’t mention any affirmative action like reservations or concessions.
An October 2020 report by the Centre for Law and Policy Research, Bengaluru, however, points out that the proper implementation of these 2020 Rules and the 2019 Act depend largely on District Magistrates, who need to be trained and sensitised to be able to aid transgender individuals better. Further, the gaps between the Act and the Rules will inevitably create confusions, making the availability of identity cards—which are the foundations based upon which every citizen can claim their rights—more difficult for the transgender community. This is the reason why neither the 2019 Act nor the 2020 Rules are being celebrated as great victories for the transgender community.
How You Can Help The Transgender Community
So, the fight for social justice for the Indian transgender community must continue, and every individual must be a part of it at their level. Here are a few things you can choose to do.
Educate yourself: Gender identity is a vast topic, and one that isn’t taught in schools or other educational institutions to everybody. Therefore, all of us have to educate ourselves about the issue. This means reading up literature on the subject, listening to those from the transgender and LGBTQIA+ communities about the challenges they face, and examining our own role in perpetuating stigma. It’s only through self-education that we can choose to be a part of the solution, and not the problem.
Respect trans voices: The experiences of a transgender person are not the same as those of a person with a cisgender identity. So, when those from the community ask to be heard, do just that. Pass the mic and listen to their challenges, grievances and hopes. Respect their choice of pronouns, their right to privacy, dignity and equality beyond everything else.
Raise awareness: Stigma, discrimination and inequality cannot be eliminated in a day, but we can slowly reach out to those around us to address it loudly and clearly. If there are people among your friends, family, community or workplace who hold regressive and discriminatory views about the transgender community, try to engage in a conversation with them. Ask them what their beliefs are based on, then share how these beliefs can harm the community and continue the cycle of repression. You might not be able to convince everyone, but it’s your duty to raise awareness.
Volunteer: Donating to organisations that support the transgender community is definitely something, but not all you can do. You can volunteer to not only drive welfare or training programmes for the transgender community in your area, but also collaborate with non-profits to make their lives easier. Help them get government identity cards so that they can access everything from dry rations to an education.
Employ transgender individuals: Whether you are a homeowner or a business owner, you can choose to employ transgender persons based on their qualifications. As Ira Singhal, the IAS officer who has herself made such employment possible at her Delhi magistrate’s office pointed out during her interview with Her Circle, giving transgender persons employment adds to their experience, financial empowerment and self-confidence—while also sensitising the general public in the most natural way possible.