Home » Blog » DOES A GENDER DIFFERENCE EQUATE TO A DIFFERENCE IN RIGHTS? – A COMPARATIVE ANALYSIS OF RIGHTS BETWEEN TRANSGENDER AND CISGENDER INDIVIDUALS.

DOES A GENDER DIFFERENCE EQUATE TO A DIFFERENCE IN RIGHTS? – A COMPARATIVE ANALYSIS OF RIGHTS BETWEEN TRANSGENDER AND CISGENDER INDIVIDUALS.

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Authored By: Vaidehi Pandey

University of Nottingham

Transgender is an umbrella term often used to describe people who identify as another gender compared to the sex they were assigned at birth. The Indian legal system protects all its citizens by giving them fundamental rights at birth. However, there is active debate regarding the difference in rights between the trans community and the cisgender community. When comparing rights for marriage, family formation, and protection from sexual violence, individuality, identity and independence are actively catered towards cisgender individuals compared to transgender community. The Transgender Persons (Protection of Rights) Act of 2019 was enacted to restore formal equality within the system; however, there seems to be inequality despite the establishment of solutions. The question that remains prominent is whether the Indian legal system provides the same rights to the transgender community as cisgender citizens are entitled to. Even if those rights are established, is there unequal treatment within the system that enforces the law?

In 2014, a question regarding transgender individuals’ identities and rights arose in the landmark case NALSA v. Union of India [2014], asking the courts whether the Trans society is entitled to fundamental rights such as Article 14, 15, 16, 19 (a), and 21. This court ruled that an individual’s self-identified gender (third gender) must be recognised, prioritising psychological sex over biological characteristics. Furthermore, every Indian citizen, regardless of their gender, is entitled to the protection of all constitutional rights. The court also directed all central and state governments to acknowledge the transgender community. The judgement of Justice KS Puttaswamy (Retd) v Union of India [2017] established informational privacy, giving individuals the right to live in the closet or disclose one’s identity purely on their own terms. Finally, in Navtej Singh Johar v Union of India [2018], rights over bodily autonomy and decriminalising consensual adult sex reduced the harassment faced by third gender individuals in private and public locations. Additionally, the case highlighted that the term “sex” includes gender identity and hence includes sexual orientation and gender expression, reducing discrimination against the community further. These principles established that constitutional equality must protect an individual’s ability to live consistently with their autonomy.

Same- sex marriage rights have been legalised in almost 39 countries, and India is a country that has been trying to proactively request the recognition of same-sex marriages. India has multiple marriage acts; the major ones include the Hindu Marriage Act 1955 and the Special Marriage Act 1954, which view marriage as a social institution. Society treats heterosexuality as normal. The requirements that cisgender people encounter include strict age, mental capacity and monogamy standards and prohibited degrees ( varies according to different cultures). However, the LGBTQIA+ community is subject to additional standards apart from these, including bodily autonomy, sex, gender, sexual orientation and more. In cases of marriage between transgender individuals, the additional requirement remains that the union must take place between a male-identifying person and a female-identifying person. However, a crucial element to highlight: sexual orientation refers to the gender or sex an individual is attracted to, whereas being transgender is an individual’s gender identity. A transgender person can have a different sexual orientation; this challenge regarding marriage remains within the system.

In Supriyo v Union of India [2023], the court declined to legally recognise same-sex marriage or scrap the heterosexual-only scope of the Special Marriage Act, saying the issue was for Parliament. Furthermore,  the majority of the bench rejected claims of queer adoption; however, it approved the right of cohabitation. Transgender individuals are legally recognised by law and are entitled to marry; however, the fight is beyond that. In 2019, in the case of Arunkumar and Another v The Inspector General of Registration and Ors, a heterosexual man, Arunkumar, and a transgender woman, Sreeja, got married. This case was fought because Sreeja did not fit the ideal standards of a “bride”. The claim was accepted on the grounds of Sreeja’s right to autonomy, self-identification and Article 21. The conflict remains that the court does not acknowledge members of the LGBTQIA+ community socially. The struggle for all transgender individuals will continue to persist until same-sex marriage is processed.

Marriage often interlinks individuals to take them to the next step – Family. A family is often complete either between the couple or with the birth of a child. Does Indian family law recognise transgender persons as equally legitimate family -formers? While the Transgender Persons (Protection of Rights Act of 2019 grants recognition, it does not address marriage, adoption and parenting rights. The Juvenile Justice (Care and Protection of Children) Act of 2015 and the Central Adoption Resource Authority (CARA) regulations require a 2-year stable marital relationship between individuals who are planning to adopt. Articles 14 and 15 – the right to equality and non- discrimination of the Constitution are significant in establishing that non-binary individuals have the right to adopt regardless of their sexual oeientation, however Same-sex and non-binary adoption lacks recognition and therefore is likely to be excluded from suitable candidates. The adoption regulations of CARA do not acknowledge third-gender applicants as of now, therefore forcing adoption authorities to choose from cisgender candidates.

However, the Juvenile Justice Act of 2015 allows transgender individuals to apply for adoption as single parents, but gaps within the system remain. Cisgender people only need to show financial and personal fitness, a clean record, and meet age and marital status rules. As for transgender people, additional requirements such as a binary requirement for parents, birth-assigned sex information and official ID’s which make the process much more complicated. Institutional bias against transgender individuals also impacts their adoption process. A biological male, according to CARA guidelines, cannot adopt a female child. However, a transgender female, who is still biologically male, would struggle to adopt a girl due to their gender identity. One can therefore argue that the binary mandate is discriminatory towards non-binary individuals. Although these requirements are made to protect children from potential threats, if a thorough analysis is done for binary individuals before adoption, non-binary and transgender individuals should also be acceptable to adopt a child based on these studies, with active regulatory measures in place that must be reformed by law. 

Section 18 of the Transgender Persons (Protection of Rights) Act 2019 amended that any individual who hurts transgender individuals in any form of physical, sexual, verbal, emotional or economic abuse would be punished with 6 – 24 months of imprisonment and a fine. While this has created a sense of safety, rates of reports made from the transgender community remain low. The National Human Rights Commission said that 92% of transgender individuals face verbal abuse, but rarely does anybody make complaints. Out of 150 people, only 14% said they never received any form of threats. Barsa, a transgender woman, said that her guru takes all her money and gives her the bare minimum for expenses, and if she refuses to give her the money, she is brutally abused.

Abuse does not end with verbal and physical abuse. Sexual assault remains an issue in the transgender community. Even members of society who are meant to protect us, police officers, are among the worst threats. This was witnessed in the case Jayalakshmi v State of Tamil Nadu, where a transgender woman was taken by police and was subject to physical and sexual abuse. Her family was also harassed and intimidated. The court directed compensation of  ₹5,00,000 to her sister. The state responsibility angle of this case creates multiple conflicts between dignity, honour, respect and equality. Was it easier for the police to threaten the family and abuse the girl because she was transgender? These questions remain unanswered. NALSA imposed restrictions upon the state for protection; such cases significantly undermine said laws.

In the case of Jane Kaushik v Union of India [2025], the court directed all States and Union Territories to establish a transgender Protection cell to monitor offences and ensure timely registration, investigation and prosecution; however, only 11 states did the needful. As for cisgender people, national helplines such as the Mahila Helpline and other crucial helplines related to police, fire, ambulance and more. This is an example of how legal legislation may be in place, but execution by other relevant departments of a system is also crucial for creating an impact.

Finally, the most significant difference that is evident between cisgender and transgender individuals is the opportunity provided to them in the work industry. The Transgender Persons (Protection of Rights) Act established laws that are anti-discriminatory in terms of the ability to get work. However,  there is a systemic privilege given to cisgender individuals, typically men, over other minority groups, such as transgender individuals. The documentation process for a cisgender individual is rather simple; not many questions are asked regarding personal identity. However, for a transgender individual, questions related to their educational degrees, background details, and former names become normal questions. Many transgender people often have to deal with stopping their education midway due to bias and prejudice in society; furthermore, common stereotypes such as their ability to work being lower than cisgender people, and their appearance and voice, invite reactions that can cause emotional strain to individuals.

A counterargument that is important to recognise is that not every difference between cisgender individuals and transgender individuals is discriminatory. Article 14 of the Constitution permits that biological differences can matter in certain laws. Regardless of what an individual might identify as emotionally, the physical strength that a cisgender woman has compared to one who is transgender is different; hence, it is important to keep in mind that the difference is purely biological and should not impact the opportunities that both individuals are presented with.

In conclusion, the question is no longer whether Indian law recognises transgender persons, but whether the rest of the indian law and society will catch up. Some reforms that should be made to the system include more inclusive writing, including gender- neutral drafting, acknowledging that transgender individuals also have lived experiences that are traumatic and should be viewed in the same manner that a cisgender individual’s life is viewed. Family law, marriage rights and adoption rights should be implemented without bias and purely based on scientific information, rather than societal bias and pressure. Finally, the transgender Person’s (Protection of Rights) Act, 2019 should not be treated as a statute different from other statutes.

BIBLIOGRAPHY:

Statutes:

  • Constitution of India, 1950, arts 14,15,16,19,21 and 32
  • Transgender Persons (Protection of Rights) Act, 2019, s 18(d)
  • Transgender Persons (Protection of Rights) Amendment Act [2026]
  • Bhartiya Nyaya Sanhita [2023]
  • Hindu Marriage Act, 1955, s 5.
  • Special Marriage Act, 1954, s 4.
  • Juvenile Justice (Care and Protection of Children) Act, 2015

Case Law:

  • National Legal Services Authority v Union of India [2014] 5 SCC 438
  • Navtej Singh Johar v Union of India [2018] 10 SCC 1
  • Justice KS Puttaswamy (Retd) v Union of India [2017] 10 SCC 1
  • Surpiyo @ Supriya Chakraborthy v Union of India [2023] 14 SCC 1
  • Arunkumar v Inspector General of Registration, 2019 SCC OnLine Mad 1778
  • Jayalakshmi v State of Tamil Nadu [2007] 4 MLJ 849
  • Jane Kaushik v Union of India [2025] INSC 1248

Secondary sources:

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