Evaluation of Transgender Laws in India: A Constitutional Standpoint

Societal and cultural construction of sex and gender has been a moot point from ages and the LGBTQ+ community helped us to understand the fluidity of their bodies in this nation. Gender diversity is making headlines more than ever as everyone wants to embrace their unique identity. “Sex” of a person is determined by the chromosomes and the “gender” is determined by how a person feels from inside and it may not match the sex of the person biologically. The LGBTQ+ community, as per societal taboos, comprises of people who cannot adhere to the norms laid down for them by the society. The choice of their sexual orientation makes them different from the society and from ages this community has been discriminated for the same. Before the Landmark Judgment of Navtej Singh Johar v. Union of India (2018 SC) even the laws were not in their favor and were treated as misfit in the society. Over the last few decades, the movement for the rights of LGBTQ has come into its own. Today, diverse voices and groups based all over India increasingly articulate the rights of these communities to lives of dignity without fear and threat of violence. 

Case Laws:

  • National Legal Services Authority v Union of India and Others (2014 SC)

This landmark judgment, as a ray of hope, held that the transgender community belongs to “third gender” and the Court also highlighted that the principles enshrined in preamble, A.19(1)(a) and A.21are all together lead to peoples’ rights required for a fulfilling life.

  • Navtej Singh Johar v. Union of India (2018 SC)

The year 2018 has seen the leap of Transformative Constitutionalism and has changed the way we perceive gender, sex and sexuality as the Hon’ble Supreme Court partially decriminalizes S.377 of Indian Penal Code which earlier criminalized even consensual same sex relations. This was not the ultimate goal rather the first phase to recognize the fight for their basic rights. This judgment has made us question ourselves and to look beyond the circle of S.377, IPC. 

Legislation: Transgender Persons (Protection Of Rights) Act, 2019

The legislature took an action in the year 2016 to enact a law for the transgender community and finally, in the year 2019 the legislation Transgender Persons (Protection of Rights) Act, 2019 received the President’s assent on 5 December 2019. But the Act was not well received by the ones it was enacted for as it had some major flaws. For instance- Chapter III of the Act provides that a person needs to have medical as well as judicial approval before s/he gets the identity certificate. Moreover, it does not recognize all the gender identities under the umbrella term “transgender” like queer, intersex unless s/he has undergone the sex reassignment surgery. The other major flaw was the punishment provision which provides that an offence against trans-woman can be punished with 6 months to 2 years of Imprisonment. The community is of the view that the first and only Act enacted for the community has failed to provide equal protection to them as guaranteed under Article 14 of the Indian Constitution to every citizen. 

The Indian Judiciary deserves an appreciation for giving such bold judgments for the advancement and empowerment of the transgender community. But these transformative judgments will not be enough to reshape the social structure if these are not implemented. Even the society needs to be empathetic and sensitized towards the community to make India a more inclusive nation. Diversity is a beautiful thing, and to make the LGBT community feel excluded for something they have no control over is not only wrong, but also ignorant- it speaks a volume about us a society. In the times of rising intolerance across various aspects of life in India, it is important that we sustain the dialogue around diversities and the spectrum of sexuality needs to be included in it regardless of how uncomfortable it makes some feel. The fight for equality for those who fall beyond the mainstream notions of gender gained momentum with Supreme Court’s judgment in the Case of National Legal Services Authority v Union of India . The Navtej Singh Johar judgment is in fact a beginning- from which will emerge a whole new era not only for transgender equality but Gender equality in India. A future for India with full equality will be one in which we recognize that all genders are equal. The transgender movement is taking us towards such a goal. What was previously made invisible or ignorant now demands attention, clear answers and not always peaceful interaction. It is understood that each and every one of us uniting efforts against discrimination and stigmatization towards LGBT can promote respect to rights and accomplish the promise of a world where people are effectively free and equal. The time to act is now. 


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