ABSTRACT
The mainstream society functions on dualities when it comes to laws and rights related to sex and sexuality. The dominant feature that permeates our society are binary impressions of gender. These rigid categorizations made many individuals struggle who did not conform to preconceived idea of man and woman, male and female or boy and girl. The past society considered anything outside the defined boxes of gender against the order of nature and hence, to be disdained and punished. The necessity to change the outlook was sensed at a global leveland consequently gender identity and sexual orientation as a field of study gained attention.
Today, the deeply structured notions of sex and gender are challenged by gender diversities and sexual orientation is not limited to binary system. This may include intersex, gender queer, gender fluidity, third gender or position outside the gender classifications. Transgender is one such community of people who transgress the binary notions of gender by departing from popular societal norms connected with the assignment of sex at birth. The transgender individuals have fought and debated over their civil, political, social and human rights in the hope of recognition and free living.
The significant judgment of the NALSA v Union of India1paved way for the legal recognition of persons falling outside the notion of gender binary2, including those who identify as third gender. The court declared that transgender person were,entitled to fundamental rights of dignity, equality, expression under Indian Constitution but in reality these rights are seldom effective and welfare procedures lie dormant on paper. Though, all sorts of discrimination is prohibited by the Indian Constitution, the ambiguity as to the impact of such injunctions still remains in the context of third gender people. They are often shunned and abandoned by the contemporary India for challenging the traditions and cultures through their inclinations and suppressed personalities.
Transgender people are often abandoned by families and victimized by negative perceptions. The unfair treatment is meted out in multiple settings including physical, sexual and verbal abuse, violence, lack of opportunities, healthcare challenges etc. The progressive outlook of Supreme Court in decriminalization of homosexuality does not guarantee civil rights or protection from other facets of harassment and discrimination. Though there are several facet of life where transgender community faces challenges and needs attention but this study will examine the position of right to work, access of employment opportunities and status of transgender at workplace. The research will identify the challenges faced by transgender individuals in earning their living. The researcher will also study the issue in comparison with United States of America and Canada to suggest the future course of action.
TRANSGENDER RIGHTS AND CHALLENGES IN INDIA
The society traditionally assigns specific roles and expectations to males and females from birth to death. These expectations are shaped by culture, traditions, beliefs, and social values. Gender identity plays a major role in this social structure, where society generally recognizes only two genders — male and female. This strict binary system often excludes individuals whose gender identity does not fit within these conventional categories. Scholars such as Candace West and Don Zimmerman observed that children learn very early what society expects from boys and girls, making gender a social construction developed for social interaction and acceptance.
Institutions such as family, schools, workplaces, and public spaces reinforce these gender norms through expectations related to behaviour, clothing, and social conductGender identity is different from biological sex and sexual orientation. Sexual orientation refers to an individual’s emotional or romantic attraction, while gender identity refers to an individual’s internal understanding of their gender. Most people identify as men or women according to the sex assigned at birth, but transgender individuals experience a mismatch between their assigned sex and their true gender identity. Unlike sexual orientation, gender identity may not always be visible publicly.
The term “transgender” refers to individuals whose gender identity differs from the sex assigned to them at birth. It includes trans men, trans women, and non-binary individuals. Historically in India, transgender persons were often grouped under the term “Hijra,” though this term does not fully represent the diversity within the transgender community. Over time, more respectful and inclusive terms such as transgender, trans, and gender non-conforming have become widely accepted.
Legal recognition is essential for protecting the dignity and rights of transgender persons. Recognition allows them to access education, healthcare, employment, and other essential services without discrimination. A major step in this direction was the enactment of the Transgender Persons (Protection of Rights) Act, 2019, which legally recognized transgender persons and affirmed their right to self-identify their gender.
However, the implementation of the Act has faced criticism due to procedural barriers and lack of proper safeguards.The Indian Constitution provides strong protection for transgender rights through Fundamental Rights. Articles 14 to 18 guarantee equality before the law and prohibit discrimination on grounds of sex or gender. In the landmark judgment of National Legal Services Authority v. Union of India, the Supreme Court recognized transgender persons as the “third gender” and upheld their rights to equality, dignity, and self-identification.
Similarly, in Navtej Singh Johar v. Union of India, the Court decriminalized consensual same-sex relationships and affirmed the rights of LGBTQ+ persons, including transgender individuals.Article 21 of the Constitution guarantees the right to life and personal liberty, which includes the right to live with dignity and freedom of expression. The Supreme Court has interpreted this right to include gender identity and self-expression. Additionally, the Directive Principles of State Policy encourage the State to promote social justice, equality, and welfare for marginalized communities, including transgender persons.Despite legal recognition, transgender individuals in India continue to face numerous social and economic challenges. Social stigma and discrimination remain widespread.
Many transgender persons are rejected by their families, face bullying in schools, and experience exclusion from employment opportunities. Healthcare discrimination is also a serious issue, with many transgender persons denied respectful and adequate medical care. Due to lack of opportunities, some are pushed into begging or prostitution for survival. Access to public facilities such as restrooms, shelters, and educational institutions also remains difficult.Several government initiatives have attempted to improve the condition of transgender persons.
The Central Government established the National Council for Transgender Persons in 2020 to advise and monitor policies related to transgender welfare. In 2022, the Ministry of Social Justice and Empowerment launched the “SMILE – Support for Marginalized Individuals for Livelihood and Enterprise” scheme. This scheme provides scholarships, skill development programmes, healthcare assistance including gender affirmation procedures, shelter homes known as Garima Grehs, and protection cells for addressing crimes against transgender persons.
In conclusion, India has made significant progress in recognizing and protecting the rights of transgender individuals through constitutional guarantees, judicial decisions, and legislative reforms. However, social stigma, discrimination, and implementation challenges continue to hinder the full realization of these rights. Greater awareness, inclusive policies, and societal acceptance are necessary to ensure equality, dignity, and justice for transgender persons in India.
