The Rights of Transgenders in India: A Constitutional Analysis of Transgender Persons ( Protection of Rights) Act, 2019

Abstract

Transgenders in today’s scenario face social stigma and legal discrimination due to their nonconformance with the gender and sexual norms of heterosexuality dominant in India’s society. They identify their identity through religion and mythology, whereby they undergo rituals of castration and emasculation, by virtue of which they play a significant role in ceremonies and festivals. Previously, legal frameworks like the anti-sodomy law of section 377 of the Indian Penal Code and the lack of a gender category for the transgender in official government document resulted in discrimination and marginalization of these communities. These communities are subject to harassment and violence from the police, medical establishment, and other individuals, and they experience systemic exclusion from vital social services like employment and healthcare. Legal reform in India, such as the Supreme Court’s recognizing the transgender community as a ‘third gender’ in 2014 and the decriminalization of sodomy in 2018, have been positive steps to improve the status of transgender community. However, inconsistencies in the definition of transgender persons and ambiguity in operationalizing the self-identification process remain posing a challenge to effective policy implementation. Under the Transgender Persons Act of 2019, in a request to lawfully acknowledge one’s transgender character, the current Act makes it compulsory for the individuals to make a claim for a ‘Transgender Certificate’, which will categorize their sex as transgender. The accompanying Rules requires a revised certificate issued by the District Magistrate. The Rules not only aggravate degradation and intrusive monitoring but also go hostile to the right of ‘self-recognition’ as acknowledged under the NALSA’s judgment. The aim of my paper is to express my views on the issues of transgender in defining their socioeconomic exclusion and inclusion problems and development process in the society, and perceptions by the mainstream society. Further, expound upon the equal Constitutional status recognized under Part- III of the Constitution inter alia with the right to gender equality and self-dignity importance. The ultimate telos of this paper is to deduce by providing suggestions and a possible insight of the overall development and social integration of the transgender persons into the mainstream society.