On 25th September 2020 the Central government notified the Transgender Persons
(Protection of Rights) Rules, 2020. The following article summarises the
Transgender Rights regime in India.
The Transgender community in India includes hijras, eunuchs, Jogtas, Jogappas,
Shiv Shakthis, etc. Transgender is an umbrella term to recognize persons whose
gender identity, gender expression, and behaviour do not conform to their
biological sex. Hijras are not men by appearance and psychologically, but they
are not women too. They do not have any reproduction or menstruation organ
biologically provided to the females. The term also includes the people who
intend to or have undergone sex reassignment surgery (SRS) which are also known
as Trans-sexual persons. The term transgenders have a broad connotation
including post-operative, pre-operative individuals but not limited to this.
Historical background of Transgenders in India 
The Transgender community finds a substantial presence in ancient Hindu
mythological and other religious texts. The Indian Mythological epic "Mahabharatha
(Around 3000 BC) suggests the presence of a trans man named Shikhandi. Another
such Hindu text named Ramayana (Around 5000 B.C.), suggests that Transgenders
were an integral part of followers of Lord Rama. The Jain texts also mention the
concept of 'psychological sex'
. Transgenders also played a part in the royal
courts of the Mughal empire in medieval India.
Transgenders have played a notable role in world history but the scenario
changed during the colonial rule. The British government passed an Act named
Criminal Tribes Act, 1871 to regulate the conduct of the transgender community
in India. The Act termed the hijras as an inherently criminal tribe. It labeled
the transgender community under the term 'eunuchs' and also classified it in two
categories i.e. respectable eunuchs and suspicious eunuchs. The Act also warned
that if any eunuch was found doing traditional activities of the hijra community
like public dancing or dressing in women's clothing will be arrested or will be
charged with a fine. The Act also mandated the registration and surveillance of
the transgender community. This Act was later repealed post-Independence.
Recent Legal Developments in India
National Legal Services Authority v. Union of India and others 
This turned out to be a remarkable judgment for the fate of 4.88 lakhs
transgenders in India (Census 2011). This judgment was delivered by a two-judge
bench including Justice K.S.P. Radhakrishnan and Justice A.K. Sikri.
The writ petition was filed by the transgender community seeking recognition of
their right to choose their gender identity other than provided to them. The
petitioners submitted that the non-recognition of their right to choose the
gender was a violation of their rights under Article 14 and 21 of the
Constitution. They contended that the right to choose gender is an indispensable
part of the Right to live with dignity provided under the ambit of Article 21 of
the Constitution. They also prayed that transgenders should be recognized as a
'third gender' and that they should be provided all the legal and constitutional
The Court explained that Articles 14,15,16,19, and 21 do not exclude
transgenders. But on the other hand, Indian law recognizes binary gender based
on the 'Biological test'. The court stated that we would rather accept the
psychological test to recognize genders.
The court allowing the petition declared that transgenders should be treated as
the 'third gender' to protect their rights under Part III of the Constitution.
Recognizing the right of transgenders to self-identified genders, the court
directed the Central and the State Governments to grant them legal recognition.
The court also directed the governments to grant them the status of Socially
backward classes and also provide them essential reservations in educational
institutions and employment. Realizing the social issues faced by the
transgender community the court asked the Central and the State Government to
address the problems faced by Transgenders like social stigma, gender dysphoria,
social pressure, shame, etc., and to create social awareness about the
Transgender Persons (Protection of Rights) Act, 2019 
The Indian Parliament passed the Transgender Persons (Protection of Rights)
Bill, 2019 on 26th November 2019 and received the assent of the President on the
5th December 2019. The object of the Act is to ensure the protection of rights
of transgender persons and their welfare. Section 3 of the Act prohibits
discrimination against transgender persons on various grounds. The Act provides
the right to self-perceived gender identity.
Criticisms of the Act by Activists
- The Act requires a person to obtain a certificate from a District
Magistrate to change the proof of gender in documents after proof of sex
reassignment surgery is provided.
- The Act criminalizes begging but does not provide reservations for
employment or education.
- The Act does not talk much about intersex, gender-queer, and transmen.
Transgender Persons (Protection of Rights) Rules, 2020
On 13th July 2020, the Central Government of India published the draft of
Transgender Persons (Protection of Rights) Rules, 2020 under section 22 of the
Transgender Persons (Protection of Rights) Act, 2019. Later on 25th September
2020, The central government notified the Transgender Persons (Protection of
Rights) Rules, 2020. The rules provide a procedure to apply for the certificate
of identity under section 5 of the Act. It also provides for the procedure of
change in gender application under rules 6 and 7.
It also directs the educational institutions to constitute a committee for
redressal of complaints of discrimination with transgenders in the respective
Though India is trying to make efforts for the overall development of the
transgender community, the major issue is the lack of acceptance by our society.
The transgenders not only are a victim of legal issues but also face social
boycott and stigmas. They are not allowed to be a part of society. Any major
legal changes are welcomed but they will not affect unless society changes its
view and accepts the transgender community. The main focus should be on the
social inclusion of the transgender community in educational institutions and
provide them with various employment opportunities.
- National Legal Services Authority v. Union of India and others - (2014)
5 SCC 438
- Transgender Persons (Protection of Rights) Act, 2019-http://socialjustice.nic.in/writereaddata/UploadFile/TG%20bill%20gazette.pdf
- Transgender Persons (Protection of Rights) Rules, 2020- http://socialjustice.nic.in/writereaddata/UploadFile/draftrule1604.pdf
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