Legal status granted to Indian transgenders

In India, transgender persons are legally recognised as a third gender. This recognition came through the Supreme Court’s landmark judgment in National Legal Services Authority (NALSA) v. Union of India (2014), which affirmed that transgender people are entitled to the same fundamental rights as every other Indian citizen and directed the Centre and the States to treat them as a socially and educationally backward class for welfare purposes. The framework was later placed on a statutory footing by the Transgender Persons (Protection of Rights) Act, 2019 and the rules made under it in 2020.

The verdict was welcomed because it covers a wide range of identities, including transsexuals, cross-dressers, and eunuchs (hijras). The Court held that recognition of transgender persons as a third gender would help the community overcome long-standing social and economic exclusion. Several million transgender individuals are estimated to live in India.

“Recognition of transgenders as a third gender is not a social or medical issue, but a human rights issue,” Justice K.S. Radhakrishnan observed while handing down the ruling.

The court directed state and federal governments to identify transgenders as a neutral third gender who should be granted access to the same welfare schemes as other minority groups in India. “Transgenders are citizens of this country and are entitled to education and all other rights,” said Radhakrishnan who headed a two-judge bench on the case.

The case was filed in 2012 by a group of petitioners, including prominent eunuch and activist Laxmi Narayan Tripathi, seeking equal rights for the transgender population under the law. Tripathi hailed the judgment, saying transgenders have long suffered from discrimination and ignorance in the traditionally conservative country.

“Today, for the first time I feel very proud to be an Indian,” Tripathi told reporters outside the court in New Delhi. “Today my sisters and I feel like real Indians and we feel so proud because of the rights granted to us by the Supreme Court,” Tripathi said.

The position on same-sex relations has since been settled in favour of equality. While the Supreme Court in Suresh Kumar Koushal v. Naz Foundation (2013) had earlier set aside the Delhi High Court’s 2009 ruling and reinstated the criminalisation of consensual same-sex acts, that decision was overruled in Navtej Singh Johar v. Union of India (2018). The Supreme Court read down Section 377 of the Indian Penal Code (now the Bharatiya Nyaya Sanhita, 2023) and held that consensual sexual conduct between adults of the same sex is no longer an offence, affirming the dignity, privacy, and equality of LGBTQ persons.

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