I am who I am, so take me as I am
. - Johann Wolfgang von Goethe
A person's identity is their most prized treasure. Gender minorities are
frequently denied even the most basic of rights, most notably in India. As a
result, transgender people are severely stigmatized. Transgender persons in
India endure desertion, abuse, discrimination, education, work, housing, and
other basic necessities. The law is designed to protect everyone's rights,
especially vulnerable groups like transgender individuals in India.
(Protection of Rights) Act 2019 has failed transgenders. This study's goal is to
discover how transgender individuals in India become a defenseless group. It
will explore the previous legal history of transgender rights, and then evaluate
the Act in depth, identifying loopholes that will allow the state to quickly
address the problem.
A person who is recognized as transgender has the right to self-perceived gender
identity under the law. A transgender person must get a Transgender Identity
Certificate to establish their gender identity. Individuals who identify as
transgender are those whose gender identification is discordant with or not
culturally associated to the sex to which they are assigned.
When a child is
born, the gender role and social position associated with that sex are
established. This means that they may have obtained or be striving to attain new
gender status that is consistent with their gender identity. We are all aware
that everyone is unique, yet we also recognize that we are all alike.
Consequently, we should embrace each individual's individuality, changeability,
and gender identification.
After years of persecution, rejection by their families, and social
discrimination, it is time for these people to be treated as normal members of
society. They should be made aware of them and urged to support them. Allow
these wonderful individuals to penetrate your thoughts and emotions.
Transgender individuals identify with or express themselves differently from
their biological sex. Transsexuals that want medical gender transformation are
not always transgender. Transgender individuals are not binary. Transgender is
sometimes referred to as a third gender. Crossdressers Certainly not homosexual.
Individuals that identify as lesbian, gay, bisexual, or transgender may
There are no conventional binary concepts of male or female bodies
in this work. Transgender people are cisgender. Acceptance of one's genuine
identity is referred to as transgender congruence. Gender dysphoria is treatable
with medication. Others decline or are unable to pay. Transgender people face
discrimination at employment, in the community, and in healthcare. They are
defended by no nation.
Gender, Sex, Sexuality And Sexual Orientation
Sex as a verb is widespread. In general, a person's outward genitalia and
reproductive organs define their biological sex. Male and female are the two
sexes, according to popular view. However, external genitalia usually
determine rather than reproductive organs. Intersex persons frequently
have unnecessary "corrective" surgery as children.
Sex and gender are often confused. Assigning specific gender
traits to each sex Gender is a social construct, whereas sex is biological. What
an individual self-identifies as gender, independent of sex, such as a man who
self-identifies as a woman.
While gender describes how an individual feels about
themselves, sexuality describes how they feel about others. It is the person I
am pulled to. A person may also lack sexual and/or romantic interest.
- Sexual Orientation:
Sexual attraction is a term that encompasses
physical, emotional/romantic, and spiritual allure. Sexual orientation is
comprised of three critical components. It is divided into three sections:
identity (I am homosexual), behavior (I have sexual relations with people of the
same gender), and attraction (I am sexually attracted to the same gender).
An acronym that is always developing and evolving is used in the field of
LGBTQIA+. It's a broad phrase that includes people of different genders and
sexual orientations, such as lesbians, gay men, bisexuals, transgender people,
questioning persons, queers, intersex people, asexual, pansexual, and allies.
Several terms related to the acronym have been defined here. Please keep in mind
that gender and sexual identities change all the time, and this is not an
exhaustive list of all potential combinations. Changes or alternate definitions
for concepts that have been published in various places may also exist.
transgender person is someone whose gender does not match the gender assigned at
birth, according to the Transgender Persons (Protection of Rights) Bill,
2019. It includes transgender men and women, those with intersex variations,
genderqueers, and individuals with socio-cultural identities such as kinnar and
hijra. Intersex variations are characterized as individuals who are born with
primary sexual characteristics, external genitalia, chromosomes, or hormones
that differ from the typical male or female body standard.
Tracing The Legal Battle
A woman who is attracted to other women. Some lesbians prefer
to refer to themselves as gay (adj.) or as gay woman rather than lesbian.
Attracted to folks who are the same gender as you. People with
uncertain sexual orientation may also use this phrase as an umbrella term.
Attracted to the same gender on a personal level It has also
been used by those who are unsure of their sexual orientation to refer to
themselves as LGBTQIA members.
Individuals whose gender identity and/or gender expression
differs from the sex assigned at birth are referred to as transgender,
transsexual, or genderqueer. People who identify as trans may go by many
different names, including transgender.
This adjective is also used by those whose sexual orientation is
not completely heterosexual. LGBTQ people who are assigned female at birth, but
who self-identify as gay, lesbian, or bisexual may see the labels "lesbian,"
"gay," and "bisexual" as restrictive and/or burdened with cultural connotations
that they believe do not apply to them. Even among the LGBTQ community, it is
not universally accepted as a word.
Questioning is sometimes represented by the Q at the end of LGBT. A person who is questioning their sexual orientation or gender identity is
referred to as a questioning gender identity person.
Significant Judgments: Prior to British dominance, sexual fluidity was the norm
in India, as evidenced by a plethora of famous figures. After it, the
legalization of homosexuality began. This Act was replaced by the 1828 and 1861
Offences Against Person Acts. These Acts retained sodomy as a crime but commuted
the former death penalty to ten years in prison.
Section 377 of the Indian Penal
Code was influenced by these outmoded laws.
Section 377 of the IPC was enacted by the British colonial authorities,
criminalizing all non-procreative sexual behavior. The dictatorial regulation
was directed not only at homosexuals, but also at any non-traditional sexual
relationships, including those between heterosexual couples. With the evolution
of society's consciousness, the necessity for modification of the outdated
regulations controlling gay behavior became apparent.
As a result, we've
compiled a list of the most notable rulings:
- AIDS Vedbhav Vidrohi Andolan v. Union of India (1994): The first petition
against Section 377 was filed in the Delhi High Court in May 1994 by AIDS Bhedbhav Virodhi Andolan (ABVA). The petition stemmed from an incident at Tihar
Jail in which Kiran Bedi, then-Superintendent, refused to provide condoms to
convicts invoking Section 377. In response, ABVA filed a writ petition in the
Delhi High Court seeking the abolition of Section 377 and the provision of free
condoms in jails. However, ABVA did not file a petition in court in 2001, and
the case was dismissed.
- Naz Foundation v. Govt. of NCT & Ors. (2009): In December 2001, the
Delhi-based NGO Naz Foundation filed a Public Interest Litigation (PIL)
challenging Section 377's legitimacy and lobbying for homosexuality's
legalization. According to the petitioner, Section 377 of the IPC breaches the
fundamental rights to life, liberty, privacy, dignity, health, equality, and
freedom of expression. Additionally, the law impeded public health efforts to
limit HIV/AIDS transmission by creating fear of prosecution under the Section.
On July 2, 2009, the LGBTQ+ community in India became a part of the global
celebration. The Delhi High Court ruled on the suit filed by the Naz Foundation
in 2001. Adult consensual sexual intercourse in private, the court determined,
was prohibited under Section 377. The ruling affirmed human dignity, equality,
and the right to privacy. In India's secular state, it raised constitutional
morality above religious morality. Section 377 criminalizes only conduct by
unfairly penalizing gays collectively. The court stated that discrimination
against MSM (Men Having Sex with Men) and the gay community is consequently
unjust and unjustified. Section 377, which criminalizes private activity and
personal decisions, violates Article 21. The High Court based its decision on
affidavits, First Instance Reports, judgements, and instructions.
- Suresh Kumar Koushal and another v. Naz Foundation & Ors. (2013): In
2009, Suresh Kumar Koushal, a Delhi-based astrologer, filed the first Special
Leave Petition (SLP) contesting the Delhi High Court's Section 377 decision.
Section 377, according to the Delhi High Court's finding, does not violate the
Constitution and hence remains intact. They asserted that there were two
categories of people who engaged in sexual activity: those who did so in
accordance with natural law and those who did so in violation of it. The court
determined that Section 377 is not arbitrary or irrational. Lesbians, gays,
bisexuals, and transgender persons account up a minuscule percentage of the
population, and fewer than 200 people have faced prosecution under Section 377
in the last 150 years.
- NALSA v. Union of India (2014): The Supreme Court considered the writ
petitions filed in response to the Suresh Koushal decision. The Supreme Court
declared that the Constitution protects the rights of transgender individuals.
In addition to binary genders, Hijras and Eunuchs are considered "third gender."
Transgender people's right to determine their gender identity is also protected.
Additionally, the Supreme Court asked the Centre and State Governments to adopt
a number of actions. Among them are the following:
- They should know their gender identification in a legal sense as
male, female, or third gender.
- They must treat these groups as backward social and educational
classes and provide reservations in both educational institutions and
for public positions.
- A critical first step for the Hijra/Transgender community would be to
address the issues they encounter, such as fear, shame, gender dysphoria, social
pressure, despair, and suicidal tendencies, as well as the calls for SRS, which
many Hijras and Transgenders believe is illegal and unconstitutional.
- Justice K.S. Puttaswamy v. Union of India & Others (2017): In 2017, the
Supreme Court declared privacy a fundamental right under Indian Constitution
Article 21. In its judgement, the Supreme Court stated that sexual orientation
is a fundamental aspect of privacy. Sexual orientation is a critical factor in
determining one's privacy. Discrimination against individuals based on their
sexual orientation is a grave insult to their dignity and self-worth. In 2018, Navtej Singh Johar and others filed a petition challenging Section 377. A
five-judge bench led by Justice Deepak Misra began considering the case in 2018.
The Navtej Singh Johar Judgement - The Final Nail On Section 377:
The argument was around the constitutional legality of Section 377 of the Indian
Penal Code, 1860, as it pertained to private consenting sexual contact between
adults of the same sex. Section 377 was titled 'Unnatural Offenses' and stated
that "[w]hoever voluntarily engages in carnal intercourse with any man, woman,
or animal in violation of the natural order shall be punished with life
imprisonment or with imprisonment of either description for a term not exceeding
ten years, and shall also be subject to [a] fine."
Navtej Singh Johar is a dancer who filed a Writ Petition in 2016 seeking
acknowledgement of sexual freedom, sexual autonomy, and sexual partner choice
under Article 21 of the Constitution. Additionally, he sought to have Section
377 declared unconstitutional. Additionally, he contended that Section 377
violated Article 14 (Right to Equality Before the Law) since it was ambiguous
and lacked a definition for "carnal intercourse contrary to the natural order."
There was no visible difference between consenting intercourse that was natural
and consensual sex that was unnatural. The Union Indian is what we're
describing. Non-governmental, religious, and other representative organizations
as well as the Petitioner and Respondent joined in to file a motion to intervene
(as applied to consenting adults of the same sex). Many claimed that granting
the right to privacy was not absolute, as such activities would denigrate the
constitutional idea of dignity, result in a higher HIV/AIDS prevalence in
society, and declare Section 377 invalid (Freedom of Conscience and Propagation
The Indian Supreme Court unanimously declared that Section 377 of the Indian
Penal Code, 1860 (Section 377) was unconstitutional as applied to private
consenting sexual behavior between adults. Thus, it reversed its decision
in Suresh Koushal v. Naz Foundation, which upheld the legality of Section 377.
The Supreme Court restated its finding in National Legal Services Authority v.
Union of India that refusing to identify as a gender is a breach of one's
dignity. In K.S. Puttaswamy v. Union of India, the Supreme Court determined that
denying LGBT individuals privacy due to their minority status would violate
their fundamental rights. Consensual sexual intercourse in private "has no
bearing on public decency or morality," the court determined, and its prolonged
existence would "violate the right to privacy under Art. 19(1)(a)."
targeting a specific group based on their sexual orientation, sodomy
prohibitions violate the right to equality guaranteed by Articles 14 and 15 of
the Constitution. In Shafin Jahan v. Asokan K.M.
and Shakti Vahini v. Union of
the Supreme Court reaffirmed that an adult's right to "select a life
partner of his/her choice" is a component of individual liberty.
J. Khanwilkar and Chief Justice Misra stated that the constitution must
transform society from an archaic to a realistic one that ardently defends
fundamental rights. He stressed that even of a majority government's support,
"constitutional morality will win over societal morality" in ensuring LGBT
J. Nariman found in his conclusion that, because the law's stated objective,
Victorian morality, "had long passed," there was no reason to maintain it. He
concluded by directing the Union of India to announce the judgement in order to
alleviate the LGBT community's social stigma. He also directed government and
law enforcement officials to be cognizant of the community's plight in order to
ensure equitable treatment.
J. Chandrachud remarked in his decision that while Section 377 appeared to be
facially neutral, it "effaced the identities" of the LGBT community. He
cautioned that if Section 377 is not repealed, the LGBT community will be denied
health care, resulting in an increase in the HIV rate. To accomplish equal
protection and to give the community with "equal citizenship in all its
manifestations," he noted, the law cannot merely be non-discriminatory against
J. Malhotra stated that homosexuality is a variety of sexuality
. She emphasised that the right to privacy includes spatial and decisional privacy
as well as the right to be left alone. She closed by apologising to members of
the LGBT community and their families for the decades of ostracism and ignominy
they have endured.
The Aftermath Of The Judgement
The Navtej Singh Johar judgement decriminalized homosexuality more than two
years ago. This decision was significant since it decriminalized homosexuality
for a fifth of the world's population. Recent court decisions strengthened
prohibitions against discrimination on the basis of sexual orientation and
gender identity, and the Indian government's stance on LGBT rights has altered.
However, more work needs to be done in India to safeguard individuals' sexual
and gender identities.
The government introduced the Transgender Persons (Protection of Rights) Act in
2019 to combat transphobia and protect transgender rights. It was created to
defend the rights of transgender people by preventing discrimination in
employment, education, healthcare, and access to public and private
institutions. While purporting to empower a group, the bill further dehumanizes
their bodies and identities.
In India, the trans community has been outspoken in its opposition to the bill,
alleging that it breaches their fundamental rights and the NALSA ruling. The
organization asserts that the Bill violates their fundamental human rights to
autonomy and privacy by requiring evidence of sex reassignment surgery, which
must be validated by the District Magistrate. As a result, they are vulnerable
to abuse by authority. The bill was reintroduced with an older version of the
wording that included a district screening committee. Apart from a lack of
"inclusive education and opportunity," there are further barriers, such as
discriminatory and arbitrary penalties for "sexual abuse against transgender
Despite the fact that the decision safeguarded the civil and political rights of
the first generation. A great deal of work is required to protect the
community's socioeconomic rights. This decision addresses a long-standing
pattern of discrimination against the LGBT community. These rights include the
right to marry, the right to adopt, the right to surrogacy, the right to work,
the freedom to form associations, and the right to be free of discrimination.
- Right to Marry:
In India, gay marriage is outlawed, contrary to popular assumption. Marriage is
expressly prohibited under the constitution. The Supreme Court construed it to
be Article 21 in Lata Singh v. State of Uttar Pradesh. Numerous instances
involving same-sex marriages are pending at the moment. According to recent
official comments, the Supreme Court simply decriminalized "a certain human
behavior" by rewriting Section 377 of the IPC, which covers homosexuality.
The administration asserts that cohabiting or being in a relationship with
another same-sex individual is "incomparable." It stated that "the right to
privacy does not include a fundamental right such as marriage between two
individuals of the same gender."
After decriminalizing homosexuality in 2009, Haryana's court recognized lesbian
marriage. This marriage was validated and registered by the Madras High Court in
2019. Transgender women are now included by the 1955 Hindu Marriage Act. The
court ruled that a marriage between a guy and a transsexual woman should be
registered. The competing viewpoints are a source of contention. Some would like
to see new legislation developed, while others would like to see existing
legislation amended. Others advocate for the establishment of a Civil Contract
for the LGBTQ community, while others accept our society as it is.
- Right to Adoption, Guardianship and Surrogacy:
In India, adoption is governed by secular and religious laws. Hindus, on the
other hand, are governed by the Hindu Adoption and Maintenance Act 1956, but
Muslims, Christians, and Parsis, among others, are not.
However, there is another statute, the Juvenile Justice Care and Protection of
Children Act, 2015 (JJ Act), as well as 2017 adoption regulations from the
Central Adoption Resource Agency (CARA). Due to the secular nature of this
statute, adoption is permitted regardless of religious affiliation. Despite the
repeal of Section 377 of the IPC, the law continues to restrict LGBTQIA+
individuals from adopting children.
There are various reasons cited for the same, some of them include:
- Under the 2017 Adoption Regulation Act, only a couple that has been
together for two years is eligible to adopt. This means that same-sex
couples do not have the right to adoption because the section utilizes the
words "spouse" and "wife".
- Because men and women have distinct sets of adoption regulations, the
applicability of such laws to trans-couples will be ambiguous.
- Indian law does not recognize marriages between people of the same
- The concept of a "inferior family" is prevalent in majority-rule
households when the child is unable to comprehend the worth of both parents.
Guardianship is a combination of rights and responsibilities an adult has
over the person and property of a child. The phrases "guardianship" and
"custody" are synonymous. Hindu guardianship is governed by the Hindu
Minority Guardianship Act 1956 (HMGA), whereas all
nationals are governed by the Guardianship and Wards Act 1956 (GWA). While the
act's wording is gender neutral, it is founded on binary gender concepts. If
there are LGBTQIA+ parents or transgender parents whose gender is unknown, the
application of these guidelines will be complex.
The new surrogacy law prevents singles and LGBTQIA+ couples from using surrogacy
to have their own children. Despite being passed to prohibit commercial
surrogacy and exploitation of mother and child, the bill has been reduced to a
"inflexible" piece of legislation that reiterates the outdated values of a
"archaic family system."
- Right to Inheritance:
India's succession and inheritance laws are a synthesis of personal and secular
law. Hindus are governed by the 1956 Hindu Succession Act, whereas Muslims and
Parsis are governed by their own customary rules. The 1925 Indian Succession Act
has been revised to include all Indians married under the 1954 Special Marriage
As is the case with other legislation, the term "marriage" in inheritance law
refers exclusively to heterosexual marriages. Thus, before applying to LGBT+
couples, this law must recognize same-sex marriages. Additionally, while gender
is immaterial and inheritance is based on proximity, it is critical that the
terminology is completely neutral to avoid stigmatizing transgender individuals
or those who undergo sex change.
- Protection against discrimination at workplace:
The 2016 LGBT Workplace Survey found that over 40% of LGBT people in India had
experienced workplace harassment due to their gender/sexual identity. Many LGBT
people hide their sexual identities for fear of prejudice or job loss. Thus, job
and workplace discrimination continue to be issues for the LGBTQIA+ population.
This situation is much more disheartening for transgender persons, who often
have low literacy, limited access to education and training, and experience more
severe employment discrimination. They are routinely targeted by enforcement
agencies and booked under the Immoral Trafficking Act (1956) and anti-begging
legislation since they have no other option. Transgender people have suffered
prejudice in the workplace across the country. Manish Kumar Giri is a well-known
example of this. United States Of India & Others (2020)
Sabi Giri (formerly Manish Kumar Gir) was dismissed from this case due to gender
dysmorphia. The Military Services stated that the sailor could not remain in the
military owing to his gender transition.
The Delhi High Court recommended that Giri be relocated by the Navy. Sabi was
sacked and given a job as a data entry operator despite the fact that she was
not permitted to work owing to her gender transition surgery. Additionally, the
petitioner mentioned workplace harassment and a lack of education about
While the Equal Remunerations Act of 1956 prohibits discrimination on the basis
of gender before to recruitment, it permits it during military service.
Dismissing a sailor solely on the basis of his or her gender identity is
arbitrary, discriminatory, and illegal. As was the case in Jacqueline Mary v.
Supt. of Police and G.Nagalakshmi v. DGP, intersex variations preclude women
from holding female-only positions.
While the court earlier sided with the petitioners, the discrimination is
obvious and violates the NALSA decision. This will continue to be the case as
long as employment regulations do not alter to include non-binary individuals.
The law now recognizes only women, regardless of gender, as victims of sexual
harassment. An insult can be directed at a transgender person or any other
member of the LGBTQIA+ community. As a result, we require gender-neutral
workplace harassment legislation.
Democracies face a long road ahead of them, filled by many people dealing with a
wide range of challenges. In India, religion and caste are still major concerns,
and the country cannot afford to add gender to the mix. Despite the fact that
this issue has been in the works for some time and has progressed significantly
throughout the country. Gays and lesbians have faced similar problems in the
past due to their sexual orientation, and transgender individuals are no
Because each individual is unique, they are born with specific rights
that are defined by the nation in which they were born. These rights as human
beings cannot be revoked due to a gender transition. According to our
constitution, everyone has the right to live their life as they see fit. No
legislation can obstruct that right. The transgender community's shift from one
of seclusion to one of inclusion is both commendable and difficult.
succeeded in establishing a place in society, but this has always been a cause
of concern for the authorities. The difficulties they face are one-of-a-kind,
making it difficult for society to accept them. Transgender individuals are
regarded less favorably than regular people, according to Article 14 of the
Even if they aren't untouchables, society regards them as if they
are. There are more than one million transgender individuals in India, and it
would be unjust to disregard one million of them all at once. These individuals
are already grappling with the consequences of organ change, such as puberty.
They took a huge risk in order to live the life they desired. This is an
entirely appropriate manner of living one's life. Our minds must be opened, and
we must accept them for who they are.
The government should organize
orientations on transgender problems so that people are aware of the world's
third gender group. These people deserve to be regarded as ordinary citizens in
society after years of persecution and familial rejection, as well as social
discrimination. The general people should be educated on these problems and
urged to support them.
People should accept these lovely creatures as human
beings by opening their hearts and minds to them.
- Recognition to the rights of transgenders by Upasana Borah
- Navtej Singh Johar Case Jugement. 2018. [online] Available
- Challenges to Transgender Act. 2020 [online] Available at: https://www.scobserver.in/court-case/challenge-to-transgender-act
- Queering The Law [online] Available at:
- Sections 377: Cases that shaped India in 2018, [online] Available at:
- 377 bites the dust. 2018, Blog [online] Available at:
- The Love that dare not speak its name, Poem [online] Available at:
- Evolution of "progressive thoughts" about gay rights since 1990s,
Article [online] Available at: https://www.epw.in/node/150861/pdf
- Understanding the Order of Nature. 2009. Blog [online] Available
- 22 Years of Aids Vedbhav Vidrohi
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