Between the Identity & Acceptance: An Indian Socio-Legal analysis of Third Gender

Author:- Zareen Warsi (Student, Asian Law College)

Co-author:- Rishika Aggarwal (Student, Asian Law College)

Abstract

Gender justice, as the most prudential component of human rights and social equity, goes beyond the binary framework of male and female identities. The acknowledgment of nonbinary identities in India marks an essential step towards inclusivity; social acceptance is still unattainable. This paper underlines how systematic exclusion starts with identity conflicts, escalates within familial systems, and manifests as wider social marginalization, this article highlights the multi-layered discrimination suffered by alternative gender personas. Individuals of the non-binary personas nevertheless experience discrimination in public participation, healthcare, work, education, and despite of constitutional guarantees of equality under Articles 14, 15 and 21 respectively.

Through the socio-legal lens, this study highlights the gap between legal recognition and lived realities. While the Transgender Persons (Protection of Rights) Act, 2019 along with the landmark judgments such as National Legal Services Authority (NALSA) v. Union of India (2014)1 has secured their rights, inadequate enforcement and persistent social stigma restrict genuine empowerment. The analysis further discuss about how exclusion and ridicule contribute to alarming mental health challenges and increasing suicidal rates within the community, as reflected in cases like the tragic death of transgender activist Anannyah Kumari Alex (2021).

This paper delves with achieving gender justice for the non-binary persona requires a multidimensional approach including legal reform, policy intervention, education, and sensitization. Simply granting legal identity is insufficient without parallel efforts to ensure societal acceptance and equal opportunities. The study concludes that true social justice lies not in token recognition, but in structural transformation that dismantles gender hierarchies and ensures the third gender’s right to dignity, self-expression, and equal participation in every sphere of life.

Key words :- Gender justice, Challenges, Identity conflicts, Constitutional guarantees, Legal reforms, Structural transformation

RESEARCH METHODOLOGY

This study adopts a qualitative and doctrinal socio-legal research methodology, relying on secondary sources such as constitutional provisions, statutes, judicial decisions, and academic writings to examine the legal and social status of transgender persons in India. It analyses the Transgender Persons (Protection of Rights) Act, 2019 and landmark judgments like NALSA v. Union of India (2014) to assess the extent of constitutional protection for equality and dignity. Using content and comparative legal analysis, the research explores how legal recognition aligns with the lived realities of the transgender community. The scope is confined to the Indian legal framework, with references to relevant international standards. Overall, the study highlights that true gender justice requires not only legal reform but also effective implementation and social inclusion.

INTRODUCTION

The definitions of gender and sex have commonly been confused with one another and therefore have often been thoughtlessly misused. The third are people whose sexual orientation or sexual activity or appearance is somewhat different from the prevailed birth sex of the society. The story of the suppression of trans-gender identity is deeply connected to the narrative of colonial displacement. Particularly in the socio-political context of the subcontinent, the social exclusion of trans-genders can be attributed to the rigid dichotomous third-gender identities under the influence of patriarchal policies adopted by the colonial state. Transgender individuals should gain civil rights and opportunities and not be discriminated against on the grounds of gender. The conversation on transgender rights has developed with the passing of The Rights of Transgender Persons Bill, 2014 by the Rajya Sabha and The Transgender Persons (Protection of Rights) Bill, 2016 in the Lok Sabha.

Yet the recognition of rights has been both celebrated and critiqued, primarily since inclusion into discourses surrounding citizenship has failed to alleviate the actual condition of transgender individuals and, equally significantly, the framework used to recognise individuals is complex and contradictory.

The inconsistency of the social roles that hijras played in the pre-colonial India with the colonial ideas of a civilized society resulted in the criminalization of their activities, which gradually led to their systematic exclusion from the domain of active cultural participation.

Colonial authorities viewed the hijra community as "a threat to colonial political authority and a menace to public morals" due to their fluid gender identity and non-normative expressions of sexuality. The British sought to govern and control the hijra community, leading to the enactment of oppressive laws.

Moreover, the inclusion of particular transgender identities within citizenship discourses has led to the appropriation of culturally acceptable and justifiable (that is, ‘traditional’) transgender identities in order to shore up wider ideological narratives associated with rightwing nationalism. The state has created compliant subjects who are more visible through the various judgments and bills, justifying their inclusion by promoting narratives of their historic legitimacy in as much as they comply with a certain vision of a pre-colonial past, while simultaneously denying rights for wider LGBT communities.

‘Discrimination on the ground of sexual orientation or gender identity, therefore, impairs equality before law and equal protection of law and violates Article 14. Crucially, the inclusion of ‘sexual orientation’ leads to confusion regarding the rights of ‘sexual’ identities within the remit of the NALSA judgment. This confusion extends, significantly, to the judgment’s definition of ‘transgender’

CONCEPTUALISING OF GENDER JUSTICE

India has achieved significant growth in different spheres, like levels of literacy, education health, but still the transgender community is one of the marginalized and vulnerable communities in the country, is seriously lagging behind on human development indices including education. Despite all these advantages and development and (LGBT Bill, supreme court 2014), the life of transgender people is a daily battle with themselves and their society. They are forced to face high levels of stigma in almost every spheres of life. Extreme social exclusion diminishes rather kills one’s self esteem and sense of social responsibilities.

‘Determination of gender to which a person belongs is to be decided by the person concerned … gender identity is integral to the dignity of an individual and is at the core of ‘‘personal autonomy’’ and ‘‘self-determination’’’ - Justice Radhakrishnan

The right to choose one’s gender identity is an essential part to lead a life with dignity which again falls under the ambit of Article 21. Determining the right to personal freedom and self determination, the Court observed that “the gender to which a person belongs is to be determined by the person concerned.” The Court has given the people of India the right to gender identity. Further, they cannot be discriminated against on the ground of gender as it is violation of Articles 14, 15, 16 and 21.

India requires more than just legal changes to provide transgender people with true gender justice. Affirmative employment and healthcare policies, inclusive education, and social sensitization are all desperately needed. To combat stereotypes and advance acceptance, the government, civil society, and educational institutions must collaborate. Media representation also plays a crucial role in normalizing transgender identities and humanizing their experiences.

CHALLENGES TO THE TRANSGENDER IDENTITIES

Transgender persons’ right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.” Critics of the transgender persons (protection of rights) Act, 2019 argue that the requirement of certification by the District Magistrate violates the constitutional right to self-identify one’s gender, as upheld in the NALSA judgment. Furthermore, the Act fails to provide reservations in education and employment, which are essential for ensuring substantive equality. Another major concern is that the punishment prescribed for sexual abuse of transgender persons is disproportionately lower than that prescribed for cisgender women under the Indian Penal Code, thereby reflecting a hierarchical protection of gendered rights.

Rejection and lack of support from the families and society, gender dysphoria associated with extreme stressful experiences, child sexual abuse, early discontinuation of schooling, forced marriages, lack of livelihood opportunities, sexual and financial exploitation by the partner and police and rowdies, and lack of legal measures for protection are some of the characteristics of transgender persons.

Furthermore, about 62% of the transgender respondents are either have problems with their family members, or they do not have any contact with their family members hence, they are living away from their families; they left their families because of ill-treatment, being not accepted as transgender persons and being felt embarrassed to live in the community moreover, 56% of them have discontinued their education at either primary level or secondary level; majority of the transgender persons have opt sex industry and begging for their survival also 54% of them have the habit of consuming alcohol.

Marginalization and homelessness:

Marginalization is at the core of exclusion from fulfilling and full social lives at individual, interpersonal and societal levels. People who are marginalized have relatively little control over their lives and the resources available to them; they may become stigmatized and are often at the receiving end of negative public attitudes.

The marginalized people may be limited opportunities to make social contributions and they may develop low self-confidence and self-esteem and may become isolated.13Also they have relatively limited access to valued social resources such as education and health services, housing, income, leisure activities and work.

The myriad problems facing Transgender people who are homeless include a lack of housing and services that meet their specific needs. They are living on city’s streets because they were thrown out of their homes for being queer, or ran away to escape an abusive situation. Abuse and harassment of Transgender homeless people is rampant in the shelter system. Homeless Transgender youth are without economic support, often engage in drug use and risky sexual behaviours, and often develop mental health disorders.

Poor Economic Conditions and Discrimination in the Workplace:

Low literacy rate and social exclusion further limits the employment and livelihood opportunities for transgender community. There are several factors responsible for their economic deprivations which are as Exclusion from Family and Society, Stigma and Discrimination at work place, Lack of knowledge and training in vocational skill development, Lack of opportunities and Lack of confidence in engaging them by employers.

Stigma, discrimination and violence against gender-nonconforming and transgender children in families and school systems, are further compounded by economic marginalization. Those transgender individuals who manage to survive the hostility they encounter as children and youth, find their employment opportunities as to be curtailed, both by the limited formal education many have had, and by stigma and discrimination in recruitment practices of many employers, as well as hostility in most workplaces, absence of gender-appropriate rest rooms, etc.

Depression, anxiety, and suicidal tendencies

The transgender persons are forced to go out of their family and community; they are refused from education, employment and getting a house for rent they also stay at slums and many people under the same roof in addition to this they are ill-treated at health-care centres. All the transgender persons are belonging to lower socioeconomic status have high level of perceived stigma, have poor social support from family, friends and significant others and their level of perceived stress is high.

The discrimination of the transgender persons in the society has prevented them from obtaining an education, job, and housing because of which they are living in slums or street and have to resort to begging and sex work this pitiful conditions have lead them to breakdown further and end their life in suicide.

Stigma, discrimination, and violence against transgender persons occur across multiple social and institutional contexts; they are verbally harassed, physical and sexually abused and blackmailed by the police and rowdies the rejection, hateredness, verbal and physical abuse from friends and family members, stigmatization, refusal of services, and derogatory labelling at health-care system, etc., have lead them to lose interest in day-to-day activities; the risk of HIV17 and HIV status increase their psychological distress, and they express thoughts of committing suicide.

The suicidality among sexual minority community is associated with poor mental health condition in forms of mental illness, psychological pain, emotion fatigue, and low self-esteem; life being hard, being confused about one’s sexuality or difficulty in accepting it, not being able to disclose one’s sexuality, bullying, history of forced sex, gender-based discrimination, and victimization and isolation are the other reasons for suicide among this population.

IDENTITY CONFLICTS

Transgender was given a higher position in the ancient days and in the olden times even during the Mughal period and they were destined to enjoy privileges in near future, but sadly none of the vows of olden times are fulfilled now but now to safe guard them new regulations and rules are being offered by the government even new policies are designed and it is hoped through these their socio economic status will be uplifted. Transgender suffer from mental health problems like depression and suicidal tendencies. So the society and the doctor must understand what drives them towards these.

One focus of mainstream LGBT activism is the issue of decriminalisation, seeking to remove section which criminalises sexual activity ‘against the order of nature’ and is interpreted to criminalise same-sex sexual acts. In spite of all the basic fundamental rights given by the constitution till date they are unable to live a better and free life under the sky, thought the laws, rights grants them permission to have a good life, but still In different parts of the world mainly India they have to fight and cry for their rights in every field.

Devoid of any skills or education,21 consequently they do not get job opportunities. Furthermore, as many government forms recognize only the two genders, Male and Female, has prevented them from benefitting from many schemes, which are otherwise available to other marginalized communities. 22 Therefore, identity conflict among transgender people is a socially constructed struggle that is exacerbated by strict gender norms, discrimination, and lack of acceptance rather than just being a psychological problem.

Devoid of any skills or education,21 consequently they do not get job opportunities. Furthermore, as many government forms recognize only the two genders, Male and Female, has prevented them from benefitting from many schemes, which are otherwise available to other marginalized communities. Therefore, identity conflict among transgender people is a socially constructed struggle that is exacerbated by strict gender norms, discrimination, and lack of acceptance rather than just being a psychological problem.

LEGAL FRAMEWORKS

Right of Transgender Persons Bill, 2014

The Right of Transgender Persons Bill, 2014 was introduced in Rajya Sabha and passed unanimously, ensuring substantive rights for transgender persons, including equality, nondiscrimination, life, personal liberty, free speech, and protection from abuse and violence. The Bill mandates the government to provide inclusive education, vocational training, selfemployment schemes, and healthcare facilities for transgender persons.

The Transgender Persons (Protection of Rights) Act, 2019

India has made significant strides in recognizing and protecting the rights of transgender individuals. This progress is primarily driven by the enactment of the Transgender Persons (Protection of Rights) Act, 2019, and the Transgender Persons (Protection of Rights) Rules, 2020. These legal frameworks aim to address the pervasive discrimination and the marginalization faced by transgender persons, ensuring their rights and dignity is upheld.

The primary objective of the legislation is to provide a comprehensive legal recognition to transgender persons and to safeguard them from discrimination in various spheres of life, including education, employment, healthcare, housing, and access to public facilities. The Act defines a “transgender person” as an individual whose gender does not match with the gender assigned at birth and includes trans-men, trans-women, persons with intersex variations, gender queer individuals, and those with socio-cultural identities such as hijra, aravani, and kinner.

In response to the NALSA judgment and the growing demand for legal protection for transgender individuals, the Indian Parliament enacted the Transgender Persons (Protection of Rights) Act, 2019. This legislation aims to provide a comprehensive legal framework for the protection of transgender rights. One of the central features of the Act is the prohibition of discrimination against transgender persons. It mandates that no individual or establishment shall discriminate against a transgender person in matters relating to education, employment, healthcare, access to public goods and facilities, right to movement, residence, property, and participation in public or private services.

Criminal Tribes Act, 1871

In 1871, the British enacted the Criminal Tribes Act, 1871 Hijras were reportedly harassed by police by threatening to file a criminal case under Sec-377 IPC. In July 2009, the Delhi High Court ruled that consensual same-sex relations between adults in private cannot be criminalized. Soon after that judgement, appeals in the Indian Supreme court objecting to the ruling were lodged; the Indian government has yet to submit a formal response.

CONSTITUTIONAL GUARANTEES FOR TRANSGENDER RIGHTS IN INDIA

Article 14 -Right to Equality before Law and Equal Protection of Laws

The apex Court interpreted any person in the said article which means that equality is not limited to male and female but extends to all genders, including those beyond the binary framework.23 This article guarantees that transgender individuals are entitled to equal treatment in all spheres that is social, legal, and economic. Any form of discrimination or exclusion based solely on gender identity violates the constitutional promise of equality.

Article 15 – Prohibition of Discrimination

Article 15(1) prohibits the State from discriminating against any citizen on the grounds of religion, race, caste, sex, or place of birth. In NALSA, 24 the Supreme Court expanded the meaning of the term “sex” to include gender identity and expression, affirming that discrimination against transgender persons constitutes discrimination “on the ground of sex.” Further, Article 15(4) empowers the State to make special provisions for the advancement of socially and educationally backward classes. The Court recommended that transgender persons be treated as such a backward class, thereby becoming eligible for reservations and welfare measures in education and employment.

Article 16 – Equality of Opportunity in Public Employment

Article 16 guarantees equal opportunity in matters of public employment. It prohibits discrimination in State employment on similar grounds as Article 15. The NALSA judgment emphasized that transgender persons should have equal access to public employment and directed the government to treat them as a socially and educationally backward class, ensuring affirmative action in public offices and jobs.

Article 19(1)(a) – Freedom of Speech and Expression

Article 19(1)(a) guarantees the freedom of speech and expression to every citizen. This includes the right to express one’s gender identity, dress, behaviour, and lifestyle. In NALSA, the Supreme Court recognized that transgender persons have the right to express their gender through their preferred clothing, pronouns, or mannerisms. Suppressing or restricting such expression amounts to a violation of Article 19(1)(a). This provision affirms that gender expression is a fundamental form of personal freedom, intrinsic to human dignity and autonomy.

Article 21 – Right to Life and Personal Liberty

Article 21 has been interpreted broadly to encompass the right to live with dignity, privacy, and autonomy. The Supreme Court in NALSA held that gender identity is an integral part of personal autonomy and self-determination, protected under Article 21. Forcing individuals toconform to a gender that does not align with their identity violates their right to life and liberty. Sexual orientation and gender identity are essential aspects of personal privacy and dignity. Furthermore, decriminalized homosexuality and emphasized the dignity and equality of all sexual and gender minorities. The right to life under Article 21 thus includes the right to live authentically as one’s true gender, free from coercion or discrimination.

Article 23 – Prohibition of Exploitation

Transgender persons are often subjected to human trafficking, forced labour, and sexual exploitation. Article 23 prohibits traffic in human beings and other forms of forced labour, providing a constitutional safeguard against such practices. The State is obligated to take measures to protect transgender persons, especially those driven into begging or prostitution due to social exclusion and unemployment.

Fundamental Duties (Article 51A)

Article 51A (e) directs every citizen to renounce practices derogatory to the dignity of women, which has been interpreted in modern jurisprudence to extend to all genders. Citizens are expected to uphold the dignity and equality of transgender individuals as part of their constitutional duty. Thus, The Constitution of India, through its spirit and evolving judicial interpretation, provides a comprehensive framework for protecting transgender rights. These guarantees ensure that transgender persons are entitled to equality, dignity, autonomy, and nondiscrimination

STRUCTURAL TRANSFORMATION

These findings have important implications for future research. For instance, suicide surveillance systems need to be established in India in regions where they currently do not exist. Nationally representative surveys of suicide, such as the one conducted that are important in understanding suicide at the national level. There needs to be a clear framework for reservations in educational institutions and employment to provide transgender individuals with equal opportunities. Comprehensive healthcare policies must be developed to address the unique medical needs of transgender individuals, including mental health support and gender-affirming treatments. A transgender person may apply to the District Magistrate for a certificate of identity, which serves as official recognition of their transgender status.

Promoting Affirmative Spaces for Transgender Safety and Support

Creating affirmative spaces for transgender persons is essential to ensure their safety, dignity, and equal participation in society. An affirmative space is one that actively validates and supports the gender identity, expression, and experiences of transgender and gender-diverse individuals.

Transgender persons in India often face systemic marginalization ranging from exclusion in families and schools to workplace discrimination and denial of healthcare. These experiences of rejection and stigma result in deep psychological distress, unemployment, and homelessness, leaving many vulnerable to violence and exploitation. The constant experiences of humiliation and invisibility lead to identity conflicts, loss of selfworth, and psychological distress, which can result in suicidal thoughts.

Affirmative spaces serve as safe environments where transgender persons can express themselves freely without fear of ridicule, harassment, or violence. They provide emotional, social, and institutional support, helping transgender individuals to heal from trauma and build confidence in their identity preventing the cases of suicide.

CONCLUDING REMARKS

Ensuring gender justice for transgender persons in India is both a constitutional mandate and a moral duty. Despite progressive judgments like NALSA v. Union of India (2014) and the Transgender Persons (Protection of Rights) Act, 2019, transgender individuals continue to face discrimination, exclusion, and violence. These social injustices often lead to deep emotional distress, identity conflicts, and alarmingly high rates of suicide within the community The prevention of suicides among transgender persons is not merely a mental health concern but a social responsibility.

Discrimination, rejection, and stigma must be replaced by empathy, awareness, and institutional support. Families, schools, and the State must collectively work to create an environment where every transgender person feels respected and valued. In conclusion, the essence of India’s constitutional vision equality, liberty, and dignity will only be realized when transgender individuals can live freely without fear or prejudice. The creation of supportive, inclusive spaces is therefore not just a policy need but a moral commitment to humanity itself.

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