Authored By: Reethu Merin Joseph
St. Joseph’s College of Law
ABSTRACT
According to the Transgender Persons (Protection of Rights) Bill, 2019, a transgender person is one whose gender does not match the gender associated at birth. This definition gives recognition to the trans-men and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar and hijra.[1] This paper will focus on the Transgender Persons (Protection of Rights) Bill, 2019, which was introduced to for the protection of the rights of transgender persons and for their well-being. It also focuses on the challenges faced by transgender people both legally and socially, and also the progress made by the government in helping them overcome their obstacles. The methodology used in this study is doctrinal as the paper includes analysing the already existing research papers, case laws, and articles. This paper points out the challenges and the rights of Transgender people in India. It assesses critically the degree to which the promises made by the constitution in Articles 14, 15, 19, and 21 have been fulfilled in reality and looks at how policy changes and judicial actions can help close the gap between the transgender community’s lived realities and legal recognition. This report highlights best practices that could improve India’s legal system by reflecting on comparative approaches from advanced states. By highlighting the necessity of substantive equality, strong enforcement, and wider public acceptance in addition to legislative change, the paper hopes to add to the continuing conversation on the defence of transgender rights.
INTRODUCTION
According to the Transgender Persons (Protection of Rights) Act, 2019, a transgender is a person whose gender does not match the gender assigned to them at birth[2]. Over the past ten years, there has been a notable legal shift in India that recognises and protects the fundamental rights of transgender people. Transgender, hijra, Kinnar, and other non-binary gender identity people have historically experienced social, economic, and political marginalisation and were frequently denied the same legal protections as ordinary citizens. The Indian Constitution, under Part III, guarantees fundamental rights such as equality before the law, prohibition of discrimination, and protection of life and personal liberty to “all persons,” yet the lived realities of transgender persons demonstrated a significant gap between constitutional promises and actual enforcement.[3]
The Supreme Court’s historic ruling in National Legal Services Authority v. Union of India (NALSA)2 marked a turning point by upholding the right to self-identify one’s gender and ordering the State to provide the transgender population with equal protection and affirmative action. Legislative actions, particularly the Transgender Persons (Protection of Rights) Act, 2019,3 which aimed to codify rights pertaining to non-discrimination, healthcare, education, and employment, further enhanced this. However, the Act’s procedural restrictions for gender recognition and apparent shortcomings in tackling systemic discrimination have also drawn criticism from activists and legal scholars.
In this regard, the legal debate in India about the fundamental rights of transgender people is a dynamic nexus of legislative reform, human rights jurisprudence, and constitutional interpretation. This essay explores how legal safeguards have changed over time, the continuous difficulties in guaranteeing their efficient application, and the judiciary’s function in bridging the gap between social reality and constitutional ideals.
RESEARCH METHODOLOGY
Using a doctrinal research technique, this study examines Indian law enactments, court rulings, and constitutional issues pertaining to transgender rights. Legislation, case law, and the text of the Constitution are examples of primary sources; academic publications, reports, and commentary are examples of secondary sources. Critical analysis and comparative viewpoints are used to evaluate legal issues and advancements.
OBJECTIVE
This study’s main goal is to critically assess the extent and implementation of fundamental rights for transgender individuals in India, with particular reference to the protections provided by Articles 14, 15, 19, and 21 of the Constitution[4].1 Its objective is to examine the practical effects of legislative initiatives like the Transgender Persons (Protection of Rights) Act, 2019 and judicial interventions, particularly the NALSA judgement[5]. In accordance with constitutional and human rights principles, the study also aims to identify enduring legal and social issues, assess the suitability of current frameworks, and suggest changes to improve the protection and realisation of transgender people’s rights.
BODY
Existing Legal Provisions and Constitutional Framework
In India, Part III of the Constitution contains constitutional provisions that serve as the main foundation for transgender people’s rights. In addition to guaranteeing equality before the law, Articles 14 and 15 forbid discrimination on the basis of sex, which has been construed by courts to include gender identity. [6]While Article 21 ensures the right to life and personal liberty, which includes autonomy, privacy, and dignity, Article 19(1)(a) safeguards freedom of expression, including the right to express one’s self-identified gender 3.
In National Legal Services Authority v. Union of India (NALSA)[7],4 the Supreme Court upheld the right to gender self-identification and ordered affirmative action, marking the beginning of judicial recognition. Legislatively, the Transgender Persons (Protection of Rights) Act 20195 requires welfare measures and forbids discrimination in public services, healthcare, employment, and education. However, it has been criticised for weakening self-identification by requiring a certificate provided by the district magistrate for gender recognition.[8]
In addition, the Criminal Law (Amendment) Act of 2013 [9]made sexual assault against transgender individuals illegal under sections 375–376 of the Indian Penal Code 1860.7. Notwithstanding these frameworks, there are still gaps in social acceptance, enforcement, and all-encompassing anti-discrimination policies.
Important Case Laws and Judicial Reasoning
Transgender people were acknowledged as the “third gender” in a historic decision in National Legal Services Authority v. Union of India (NALSA)1[10]. Non-recognition, according to the petitioners, was against Articles 14, 15, 16, 19(1)(a), and 21. The Supreme Court upheld the freedom to self-identification by ruling that gender identity is essential to one’s dignity and sense of autonomy. It instructed the State to guarantee welfare programs, reservations, and anti-discrimination measures.
The right to privacy, which includes the freedom to choose one’s own gender identity and sexual orientation, was upheld as a basic right under Article 21 in Justice KS Puttaswamy (Retd) v. Union of India.
[11]
The Court held that constitutional morality must take precedence over social prejudice in Navtej Singh Johar v. Union of India3[12], decriminalising consenting same-sex relationships under s. 377 IPC. The ruling upheld the dignity and equality of all sexual and gender minorities.
Critical Evaluation : NALSA established the constitutional framework, but state policies have been inconsistent and execution has been sluggish. The jurisprudential foundation for equality and privacy was broadened by Puttaswamy and Navtej Johar, however laws like as the Transgender Persons Act 2019 have come under fire for creating obstacles to gender recognition, indicating a disconnect between statutory frameworks and judicial objectives.
Loopholes, Practical Challenges, and Comparative Perspective
The Transgender Persons (Protection of Rights) Act 2019[13] has been condemned for weakening self-identification by requiring a gender certificate issued by a district magistrate,3 in violation of the NALSA requirement, even though it is constitutionally recognised under NALSA[14]. Because the Act makes no explicit mention of affirmative action in employment or education, its implementation is left up to state discretion. Furthermore, there are still few sanctions for infractions of anti-discrimination laws, and enforcement methods are still inadequate.
In reality, societal stigma makes it difficult for transgender people to seek legal remedies, housing, and healthcare due to systemic impediments[15]. Law enforcement and administrative authorities frequently lack awareness, which results in underreporting and inefficient remedies.
In contrast, nations such as Argentina have embraced progressive ideas, requiring public healthcare coverage for gender-affirming treatments and permitting self-declaration of gender without official clearance under the Gender Identity Law 20125. Similar to this, Malta’s Gender Identity, Gender Expression, and Sex Characteristics Act 2015 guarantees prompt legal recognition without the need for administrative or medical requirements.[16]
These models show how Indian law has the capacity to advance from procedural gatekeeping to a framework that is centred on rights and dignity. It will need focused changes, strong enforcement, and institution-wide sensitisation campaigns to close the gap between constitutional goals and legislative reality
Recent Developments, Policy Changes, and Public Debate
Although campaigners have often called for the district magistrate certification requirement for gender recognition under s. 7 to be removed, no official revisions have been approved since the Transgender Persons (Protection of Rights) Act 2019[17] was passed.2. Procedures for applying for gender certificates and resolving grievances were outlined in the Transgender Persons (Protection of Rights) Rules, 2020,[18] published by the Ministry of Social Justice and Empowerment in 2020. Critics counter that the regulations are incompatible with the NALSA[19] concept of self-identification and do not guarantee privacy protections.
The lack of affirmative action guarantees and procedural obstacles have been the focus of public demonstrations, especially from the transgender community and human rights organisations. [20]Although activists argue that this indicates an administrative, rather than rights-based, perspective, government comments highlight that the Act offers a “balanced” approach to recognition and assistance.
While some media sites have highlighted welfare programs like Garima Greh shelter homes, others have reported ongoing exclusion from public places and work[21]. The current discussion indicates that rights activists are increasingly in agreement that legal reforms based on international best practices should prioritise substantive equality, autonomy, and dignity over bureaucratic control.
Recommendations and the Way Forward
The Transgender Persons (Protection of Rights) Act 2019[22] should be changed to eliminate the need for district magistrate certification under section 7 and replace it with a self-declaration model in accordance with NALSA in order to guarantee the full realisation of transgender people’s fundamental rights.[23] Affirmative action policies in public employment and education must be specifically included, backed by financial resources and quantifiable goals.
As demonstrated in Puttaswamy3 and Navtej Johar, the judiciary can take the initiative and interpret current laws in a way that upholds autonomy, privacy, and dignity.4 In order to keep an eye on the state’s adherence to welfare orders, courts may also issue ongoing mandamus.
Best practices from countries like Argentina and Malta, which ensure prompt legal recognition and healthcare rights without invasive procedures, should be adopted by the legislature.[24]
Civil society organisations need to monitor implementation gaps, hold workshops to raise public officials’ awareness, and increase access to legal aid. Working together, NGOs, educational institutions, and the media may increase support for reforms and fight stigma in society.
For transgender people in India, a comprehensive strategy that combines social empowerment, judicial oversight, and legal reform is necessary to close the gap between their lived experiences and the objectives of the constitution.
CONCLUSION
This essay has looked at the legal and constitutional framework that governs transgender people’s fundamental rights in India, emphasising both legislative and judicial advancements. Important rulings like NALSA, Puttaswamy, and Navtej Johar have greatly broadened the definition of equality, dignity, and individual liberty under Articles 14, 15, 19, and 21.4. Although the Transgender Persons (Protection of Rights) Act 2019,5 is a step in the right direction, it still has procedural obstacles that undercut the NALSA-recognized principle of self-identification, most notably the certification requirement under s. 7.
The practical facts reveal a wide implementation gap. Transgender people are nevertheless marginalised in healthcare, work, and education because to societal stigma, a lack of strong affirmative action policies, and a lack of public authorities’ awareness. Strong anti-discrimination enforcement combined with rights-based, self-declaration approaches produces more inclusive results, as shown by comparative analysis with countries such as Argentina and Malta
It is impossible to exaggerate how crucial it is to address these problems. Although transgender people have the same constitutional rights as regular citizens, structural exclusion is frequently reflected in their lived experiences. A concerted effort is needed to close this gap: the legislative must implement reforms based on human dignity, the judiciary must interpret the law gradually, and civil society must use advocacy and awareness to combat long-standing prejudices
In the end, it is still unclear if India’s legal system will advance from acknowledging transgender rights in theory to actually protecting them. In a utopian future, the law would be viewed as an enabling tool for full social, economic, and political participation rather than only a means of addressing discrimination. The real test of India’s democracy and human rights convictions will be whether or not its constitutional pledges to transgender people are fulfilled.
Reference(S):
[1] https://prsindia.org/billtrack/the-transgender-persons-protection-of-rights-bill-2019
[2] https://prsindia.org/billtrack/the-transgender-persons-protection-of-rights-bill-2016
[3] Indian Constitution. Article 14,15,19,21
[4] Indian Constitution. Article 14,15,19,21
[5] National Legal Services Authority v. Union of India, (2014) 5 SCC 438
[6] Constitution of India 1950, arts 14–15
[7] National Legal Services Authority v Union of India (2014) 5 SCC 438
[8] Arvind Narrain, ‘The Transgender Persons (Protection of Rights) Bill, 2019: Progress and its Discontents’ (2019) 54(51) EPW 20.
[9] Indian Penal Code 1860, ss 375–376, as amended by the Criminal Law (Amendment) Act 2013.
[10] National Legal Services Authority v Union of India (2014) 5 SCC 438.
[11]Justice KS Puttaswamy (Retd) v Union of India (2017) 10 SCC 1
[12] Navtej Singh Johar v Union of India (2018) 10 SCC 1.
[13] Transgender Persons (Protection of Rights) Act 2019, No 40 of 2019
[14] National Legal Services Authority v Union of India (2014) 5 SCC 438
[15] Human Rights Watch, ‘India: New Transgender Law Ignores Concerns’ (Human Rights Watch, 2019) https://www.hrw.org/news/2019/12/06/india-new-transgender-law-ignores-concerns accessed 13 August 2025.
[16] Gender Identity, Gender Expression and Sex Characteristics Act 2015 (Malta).
[17] Transgender Persons (Protection of Rights) Act 2019, No 40 of 2019
[18] Transgender Persons (Protection of Rights) Rules 2020, GSR 592(E).
[19] National Legal Services Authority v Union of India (2014) 5 SCC 438.
[20] Human Rights Law Network, ‘Critique of the Transgender Persons Act’ (HRLN, 2020) https://www.hrln.org accessed 13 August 2025.
[21] Ministry of Social Justice and Empowerment, ‘Garima Greh: Shelter Homes for Transgender Persons’ (Press Release, 2021).
[22] Transgender Persons (Protection of Rights) Act 2019, No 40 of 2019.
[23] National Legal Services Authority v Union of India (2014) 5 SCC 438
[24] Ley de Identidad de Género 2012 (Argentina); Gender Identity, Gender Expression and Sex Characteristics Act 2015 (Malta).
