Chapter I

INTRODUCTION

“Sex is what you are born with, gender is what you recognize and
sexuality is what you discover.”

-A. Chettiar1

1.1 INTRODUCTION

True concerns about sex and gender were a feature of the present century in
promoting egalitarian participants in the society. Gender is a complex social construct
based upon biological sex, but it is not the same as sex. It can also be argued that
gender alone drives and that sex is an incidental feature. Gender facilitates sexual
interaction and reproduction. Gender is intertwined with identity, expression,
presentation, relationships, child-rearing, societal role and structure, pairing, games,
and eroticism. Human race is a sexually dimorphic species, where physical
appearance is one component of gender marker. Gender becomes fixed in infancy, but
it remains remarkably fluid, full of twists and surprises.

Gender Equality means that the rights, responsibilities and opportunities of

individuals will not depend on whether they are born male, female or a transgender.
Equality does not mean the same as. Promotion of Gender Equality has both a
quantitative and a qualitative aspect. The quantitative aspect refers to the desire to
achieve equitable representation, increasing balance and parity refers to achieving
equitable influence on establishing development priorities and outcomes wherein
equality involves ensuring that the perceptions, interests, needs and priorities to be
given equal weight age in planning and decision making.

‘Transgender’ is an umbrella term coined in the 1970s, which includes persons

whose gender identity, expression or behavior does not conform to societal gender

1. Anitha Chettiar, “Problems Faced by Hijras (Male to Female Transgenders) in Mumbai with
Reference to Their Health and Harassment by the Police” International Journal of Social
Science and Humanity, Vol. 5, No. 9, September 2015, p. 752; Also available at:
http://www.ijssh.org/papers/551-W10007.pdf (last visited on 28th November, 2020). The stated
line was a comment made by the hijra respondents of the study undertaken by the said author.

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norms associated with sex at birth. In addition to those who seek to be recognized as
being of the gender different from the one they were assigned at birth and even pursue
surgical options to align their anatomy. With their gender-identity, some may consider
themselves to fall ‘between’ genders, may not identify strictly to one gender or the
other and may identify themselves as neither fully male nor female.

Transgender individuals and communities face many barriers to full

acceptance in society. One of the issues that have been receiving growing attention is
the experience of discrimination that transgender individuals face when they interact
with the criminal justice system.

It is generally observed that in present circumstances, there are three basic

kinds of exclusions of Transgender in India-

1. Exclusion from Social and Cultural Participation

2. Exclusion from Property

3. Exclusion from Citizen Participation

Though the visibility of transgender people is increasing in daily life, they are
still discriminated, disrespected and downtrodden. One of the main challenges faced
by transgender people is how to live a normal life in a society which maintains rigid
gender norms and beliefs. In National Legal Services Authority v. Union of India and
Ors.2, the Supreme Court had not only recognized transgender as a 'third gender' but
also directed the Centre and the State Governments to take necessary steps for various
Social Welfare Schemes and run public awareness campaigns to erase all the social
stigma attached with the transgender. They have not only been segregated from the
society but also have been ostracized from their rights and privileges. As much as our
society is developing in many aspects but when it comes to transgender people the
society hesitates to accept them as an integral part of the society.

1.2 DEFINITION OF TRANSGENDER

According to Section 2(k) "transgender person" means a person whose gender

does not match with the gender assigned to that person at birth and includes trans-man

2. AIR 2014 SC 1863.

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or trans-woman (whether or not such person has undergone Sex Reassignment

Surgery or hormone therapy or laser therapy or such other therapy), person with
intersex variations, gender queer and person having such socio-cultural identities as
kinner, hijra, aravani and jogta3.

According to Stryker4 “transgender” is a word that “encompasses the whole

spectrum” of gender diversity, that lumps together rather than splits apart the many
subgroups within a large, heterogeneous set of communities.

1.3 CATEGORIES OF TRANSGENDER

Transgender in India, as per their social & biological differences may be

categorized as follows:

Androgyne

An androgyne is a person who does not fit into the typical gender role of his or
her society, Androgynies may identify as beyond gender, between genders, moving
across genders, entirely genderless or any or all of these. They exhibit a variety of
male, female and other characteristics. Androgyne can be either physical or
psychological. Androgyne identities include pangender, ambigender, non-gendered
and agender. Androgen’s identity does not depend on birth sex.

Bigender

A bigender is an individual who moves between masculine and feminine

gender roles such as individuals move between two distinct personalities depending
on context5.

Drag Performers (Drag Kings and Drag Queens)

Drag performers can be either female- bodied or male-bodied individuals or

those in transition; they perform on stage the gender opposite to the sex they were
bom, in an exaggerated or campy fashion. A drag king is a person who was bom as a
female and performs on stage in a hyper masculine style, while a drag queen is a

3. The Transgender Persons (Protection of Rights) Act, (Act No. 40 of 2019) 2019.
4. Susan Stryker (2008)” Transgender History” revised edition 2017, Seal Press Publication, U.S.
p. 123.
5. Fvlerriam-Webster's Medical Dictionary, http://dictionary.reference.com/browse/androgyne

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person born as a male and performs on stage in a hyper feminine style6.

Gender Queer

This includes gender experiences which do not fit into binary concepts and
refers to a contribution of gender identities and sexual orientations. For example, a
person whose gender presentation is sometimes perceived as male, sometimes female
but whose gender identity is female, gender expression is butch and sexual orientation
is lesbian7.

Hijra

The word hijra is an Urdu word derived from the Arabic root ‘hijr’ in its sense
of ‘leaving one’s tribe’. The hijras in India are also known as ‘Jogappas’, ‘Jogtas’,
‘Shiv-shaktis’ and ‘Aravanis’ depending on the region they live. Many hijras choose
to describe themselves as being neither man nor woman. Hijras are also commonly
known as impotent ones. This group consists of people who are born with a male
body, with a non-male or female gender identity and wear women’s clothing and
adopt other feminine gender roles.

Kothis

Kothis are those hijras who take a receptive or feminine role in sex with a
man. They are distinguished as separate gender identity. They dress as women and act
in a feminine manner in public spaces, even using feminine language to refer to
themselves and each other.

Transsexuals

Transsexual people identify as or desire to live and be accepted as a member

of the opposite sex that assigned at birth.

Transvestite

A transvestite is a person who cross dresses or dresses in clothes of the

opposite sex. The term ‘transvestite’ is used as a synonym for the term ‘crossdresser’.

6. E. D. Hirsch, Jr., E.D., Kett, J.F., Trefil, J. (2002) “Transvestite”, The New Dictionary of
Cultural Literacy, Third Edition.
7. Wilchins, Riki Anne, (2002) ‘It’s Your Gender, Stupid’, in Joan Nestle, Clare Howell and Riki
Wilchins (eds.) Genderqueer: Voices from Beyond the Sexual Binary, pp. 23-32.

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Transgender Man or Transman

A transgender man is an individual who was assigned or designated female at

birth (usually based on sexual characteristics), but who identifies as male.

Transgender Woman or Transwoman

A transgender woman is an individual who was assigned or designated male at

birth (usually based on sexual characteristics), but who identifies as female.

1.4 CONSTITUTIONAL AND LEGAL DIMENSIONS OF TRANSGENDER

RIGHTS

1.4.1 Right to Equality

The Constitution of India, 1950 provides every person an equal status before
the law and an equal protection of laws within the territory of India. The State shall
not deny to any person equality before the law or the equal protection of the laws
within the territory of India.8 The word any person here means every individual,
without any discrimination based on any of the category which includes caste, creed,
religion, sex, etc. A transgender in India is included within the words any person‟ and
is given equal status to that of every is gender in India. The transgender community
cannot be discriminated on the ground of non-application of any of the laws within
the nation by reason of their differences and dividing them based on any arbitrary
class.

In Naz Foundation v. N.C.T Delhi9 the Delhi High Court has declared
Section 377 of IPC as unconstitutional. Court has said that Section 377 of IPC insofar
as it criminalizes consensual sexual act of adult in private is violative of Article 14, 15
and 21 of the Constitution. While interpreting Article 14 the Court has said that any
distinction or classification must be made on intelligible differentia which has a
rational relation to the objective sought and must not be unfair or unjust. Section 377
does not distinguish between public and private acts or between consensual and
nonconsensual acts, therefore does not take into account relevant factors such as age,

8. Article 14 of the Constitution of India, 1950.

9. 2010 Cr.L.J 94 (Delhi).

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consent and the nature of the act or absence of harm. Thus, such criminalization in the
absence of evidence of harm seemed arbitrary and unreasonable.

This judgment of Delhi High Court could not sustain and this was overruled
by the Supreme Court in Suresh Kumar Koushal v. Naaz Foundation10 the Supreme
Court has held that Section 377 of IPC is not violative of Article 14, 15 and 21. The
Supreme Court opined that Section 377 does not criminalize a particular people or
identify on sexual orientation. It merely identifies certain acts which if committed
would constitute an offence. Such a prohibition regulates sexual conduct regardless of
gender identity and orientation. This judgment is against the spirit of the
Constitution. Our constitution whose preamble ensures the justice and equality for all,
there are specific articles in the form of the fundamental right dedicated to equality
and non-discrimination, nonetheless people are being discriminated and subject to
harassment on the basis of their sexual orientation.

In National Legal Service Authority v. Union of India11 the interpretation of

the word person was widened and was held that Article 14 of the Indian Constitution
does not restrict the word “person” and its application only to male or female.
Hijras/transgender persons who are neither male/female fall within the expression
person and, hence, entitled to legal protection of laws in all spheres of State activity,
including employment, healthcare, education as well as equal civil and citizenship
rights, as enjoyed by any other citizen of this country. The transgender community
falls within the purview of the Constitution of India and thereby they are entitled to all
the rights as guaranteed under the same

A lot of the confusion has actually arisen from the much-hailed National Legal
Service Authority (NALSA) judgment. Even as the mainstream press and civil society
were celebrating the judgment, many transgender commentators were pointing out its
inherent problems and contradictions. The fact that transgender is an umbrella term
for people whose gender identity and/or expression is different from the gender
assigned to them at birth, and specifically in the case of India, may use to describe a

10. (2014) 1 SCC 1.

11. AIR 2014 SC 1863 at 1890.

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variety of identities, such as kothi, transman, transwoman, transgender, aravani,

gender queer, etc. is not clearly outlined in the judgment.

In Navtej Singh Johar v. Union of India12 on 6th September 2018, the

Supreme Court issued its verdict. The Court unanimously ruled that Section 377 is
unconstitutional as it infringed on the fundamental rights of autonomy, intimacy, and
identity, thus legalising homosexuality in India. The Court explicitly overturned its
Suresh Kumar Koushal v. Naaz Foundation, judgement the Court has held that

1. Section 377 of the Penal Code, in so far as it criminalises consensual sexual

conduct between adults of the same sex, is unconstitutional;

2. Members of the LGBT community are entitled, as all other citizens, to the full
range of constitutional rights including the liberties protected by the
Constitution;

3. The choice of whom to partner, the ability to find fulfilment in sexual

intimacies and the right not to be subjected to discriminatory behavior are
intrinsic to the constitutional protection of sexual orientation;

4. Members of the LGBT community are entitled to the benefit of an equal

citizenship, without discrimination, and to the equal protection of law.

1.4.2 Prohibition Against Discrimination

The State shall not discriminate against any citizen on grounds only of
religion, race, caste, sex, place of birth or any of them.13 Transgender are human
being so that they are not discriminate on them.

The Transgender Persons (Protection of Rights) Act, 201914 says that no

person or establishment shall discriminate against a transgender person on any of the
following grounds, namely-

a) the denial, or discontinuation of, or unfair treatment in, educational

establishments and services thereof;

b) the unfair treatment in, or in relation to, employment or occupation;

12. (2018) 10 SSC 1.

13. Article 15 of the Constitution of India, 1950.
14. Act No. 40 of 2019.

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c) the denial of, or termination from, employment or occupation;

d) the denial or discontinuation of, or unfair treatment in, healthcare services;

e) the denial or discontinuation of, or unfair treatment with regard to, access to,
or provision or enjoyment or use of any goods, accommodation, service,
facility, benefit, privilege or opportunity dedicated to the use of the general
public or customarily available to the public;

f) the denial or discontinuation of, or unfair treatment with regard to the right of
movement;

g) the denial or discontinuation of, or unfair treatment with regard to the right to
reside, purchase, rent, or otherwise occupy any property;

h) the denial or discontinuation of, or unfair treatment in, the opportunity to stand
for or hold public or private office; and

i) the denial of access to, removal from, or unfair treatment in, Government or
private establishment in whose care or custody a transgender person may be.15

1.4.3 Right to Employment or Occupation

Article 16 of the Constitution talks about equality of opportunity in matters of

public employment. It includes the no person or establishment shall discriminate
against a transgender person in employment or occupation. Article 16 (2) says no
citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth,
residence or any of them, be ineligible for, or discriminated against in respect or, any
employment or office under the State.

Supporting the objective of Article 16, the Transgender Persons (Protection of

Rights) Act, 2019 also provides that no establishment shall discriminate against any
transgender person in any matter relating to employment including, but not limited to,
recruitment, promotion and other related issues.16 Every establishment shall ensure
compliance with the provisions of this Act and provide such facilities to transgender
persons as may be prescribed.17 The Act further provide that every establishment shall

15. Section 3 of the Transgender Persons (Protection of Rights) Act, (Act No. 40 of 2019) 2019.
16. Section 9 of the Transgender Persons (Protection of Rights) Act, (Act No. 40 of 2019) 2019.
17. Section 10 of the Transgender Persons (Protection of Rights) Act, (Act No. 40 of 2019) 2019.

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designate a person to be a complaint officer to deal with the complaints relating to

violation of the provisions of this Act.18

1.4.4 Right to Life

No person shall be deprived of his life or personal liberty except according to

procedure established by law19. The right to choose one’s own identity is one of the
most essential right under this article to life with dignity, and this aspect is covered
and protected by this Article as it symbolizes the most important right being a human,
a right to live, which the State is required to protect from violation. The transgender
communities have a right to dignified life which is one of the most important aspects
of Article 21 of the Constitution of India. Recognition of gender identity provides the
recognition of their right to dignity and non-recognition violates the same, they have
full right to express and live their life without fear. Also, the right to
reputation20extends to their protection.

1.4.5 Right to Identity

The Supreme Court of India held that recognising only two gender identities
(male and female) violated constitutional rights. In National Legal Services Authority
v. Union of India and others21, the Court found that the right to self-identify one's
gender, including as “third gender”, was an important part of the constitutional right
to live with dignity. Further, the state was required to take affirmative action measures
in order to achieve equality for transgender people. The decision – its tone and
approach in stark contrast to the Court's recent regressive decision in Suresh Kumar
Koushal and another v. Naz Foundation and others22 should offer inspiration to
courts in the many countries which continue to recognise only a gender binary.

1.4.6 Right to Health Care

The common conception of transgender health is that it refers only to medical

procedures involved in transition. However, Transgender health is a much broader

18. Section 11 of the Transgender Persons (Protection of Rights) Act, (Act No. 40 of 2019) 2019.
19. Article 21 of the Constitution of India, 1950.
20. State of Maharashtra v. Public Concern for Governance Trust, A.I.R. 2003 S.C. 223. The Court
held that a good reputation was an element of personal security and was protected by the
Constitution, equally with the right to the enjoyment of life, liberty and property.
21. AIR 2014 SC 1863 at 1890.
22. 2010 Cr.L.J. 94 (Delhi).

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field. As the World Health Organization recognizes, health is a state of complete

physical, mental, and social well-being, not merely the absence of disease or
infirmity. The full picture of transgender health thus involves broad recognition of all
the services, protections, and resources that transgender people need to live healthy
lives in safe communities. This includes a range of primary and other health care
services, as well as a focus on socio-economic determinants of health such as identity
document policies poverty, employment, housing and public acceptance of
transgender people.

Transgender people worldwide experience substantial health disparities and

barriers to appropriate health care services that keep them from achieving the highest
possible health status. Among other health disparities, transgender people are
significantly more likely than the general population to be targeted for violence and
harassment, to contract HIV, and to be at risk for mental health concern such as
depression and attempted suicide.23

In this regard, the Transgender Persons (Protection of Rights) Act, 2019

provides that the appropriate Government shall take the following measures in
relation to transgender persons, namely:

a) to set up separate human immunodeficiency virus Sero-surveillance Centers to

conduct sero-surveillance for such persons in accordance with the guidelines
issued by the National AIDS Control Organisation in this behalf;

b) to provide for medical care facility including sex reassignment surgery and
hormonal therapy;

c) before and after sex reassignment surgery and hormonal therapy counselling;

d) bring out a Health Manual related to sex reassignment surgery in accordance

with the World Profession Association for Transgender Health guidelines;

e) review of medical curriculum and research for doctors to address their specific
health issues;

23. Sujita Sethi and Madhusmita Barwa, “Transgender Health and Their Rights in India”,
International Journal of Research in Social Sciences, Vol. 8 Issue 10(1), October 2018, p. 282.

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f) to facilitate access to transgender persons in hospitals and other healthcare

institutions and centers;

g) provision for coverage of medical expenses by a comprehensive insurance

scheme for Sex Reassignment Surgery, hormonal therapy, laser therapy or any
other health issues of transgender persons.24

1.4.7 Right to Change in Gender

Transgender people in India are allowed to change their legal gender post-sex
reassignment surgery under legislation passed in 2019, and have a constitutional right
to register themselves under a third gender.25

1.4.8 Right to Residence

No child shall be separated from parents or immediate family on the ground of

being a transgender, except on an order of a competent court, in the interest of such
child.26 Every transgender person shall have-

a) a right to reside in the household where parent or immediate family members

reside;

b) a right not to be excluded from such household or any part thereof; and

c) a right to enjoy and use the facilities of such household in a non-

discriminatory manner.27

Where any parent or a member of his immediate family is unable to take care
of a transgender, the competent court shall by an order direct such person to be placed
in rehabilitation center.28

1.4.9 Right to Education

Every educational institution funded or recognised by the appropriate

Government shall provide inclusive education and opportunities for sports, recreation

24. Section 15 of the Transgender Persons (Protection of Rights) Act, (Act No. 40 of 2019) 2019.
25. Section 7 of the Transgender Persons (Protection of Rights) Act, (Act No. 40 of 2019) 2019.
26. Section 12(1) of the Transgender Persons (Protection of Rights) Act, (Act No. 40 of 2019) 2019.
27. Section 12(2) of the Transgender Persons (Protection of Rights) Act, (Act No. 40 of 2019) 2019.
28. Section 12(3) of the Transgender Persons (Protection of Rights) Act, (Act No. 40 of 2019) 2019.

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and leisure activities to transgender persons without discrimination on an equal basis

with others.29

1.5 LEGISLATIVE ENACTMENTS VIS-A-VIS TRANSGENDER RIGHTS

The enactment of different laws by the legislature is the outcome of

constitutional provisions which provides legal sanctity by way of establishing the
right in favor of this class. The relevant Acts which establish the identity of this class
though not specifically are discussed below.

1.5.1 The General Clauses Act, 1897

The term ‘person’ under the Act30 is couched with a wider ambit i.e., it
includes any company or association or body of individuals, whether incorporated or
not. Section 13 of the said Act31 stipulates that the words importing the masculine
gender shall be taken to include females. This stipulation is itself conditioned by
statutory direction unless there is anything contradictory in the subject or context. A
harmonious reading must be given to the aforesaid provisions which would clearly
state that Transgender persons would fall within the ambit of the definition of the term
‘person’.

1.5.2 The Hindu Marriage Act, 1955

Section 5 of this Act32 prescribes the essentials of a Hindu marriage. As per

this section, two Hindus, one of whom can be identified as bride and other the
bridegroom, can solemnize a marriage, unless it is barred by subsection (iii), (iv), and
(v) of the section. Therefore, transsexuals who have got their sex reassigned in all of
their official documents and can legally identify themselves to be female or male, i.e.,
bride or bridegroom, can get their marriage legally recognised. Such a marriage is
also not a subject matter of challenge by a third person, since a petition for nullity of
marriage or for divorce can be brought only by the parties to the marriage.

29. Section 13 of the Transgender Persons (Protection of Rights) Act, (Act No. 40 of 2019) 2019.
30. Act No. 10 of 1897.
31. Available on http://www.advocatekhoj.com/library/bareacts/generalclauses/13.php?Title=
General%20Clauses%20Act,%201897&STitle=Gender%20and%20number accessed on 10
August, 2021 at 02:45 pm.
32. Hindu Marriage Act, (Act No. 25 of 1955) 1955.

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As per Section 5 of this Act, only a marriage of a bride and a bridegroom is

valid and recognised. The terms “bride” and “bridegroom” are gendered terms. It
necessarily translates to “woman” and “man” on their wedding day. Thus, it provides
no recognition to marriages for the third gender.

1.5.3 The Citizenship Act, 1955

The Act33 stipulates the acquisition and determination of Indian Citizenship

whereas there is no clear-cut provision which expressly or impliedly determines sex
or gender identity as a pre-condition to acquire citizenship. Special measures have
been taken by the Election commission to enroll the transgender persons as electors.34

1.5.4 The Hindu Adoptions and Maintenance Act, (HAMA) 1956

Adoption is one of the forms of relationship that is recognised under the

umbrella of family, and thus makes it part of the fundamental right to have a family.
Under personal laws, only Hindus were allowed to act as legal parents for the adopted
child. No other personal law in India recognised such a right. However, the Juvenile
Justice (Care & Protection of Child) Act, 201535, acting as a secular legislation has
provided people from any religious denomination to adopt a child. For analysis of the
position of transgenders, both the Hindu Adoptions and Maintenance Act and the
Juvenile Justice (Care & Protection of Child) Act, 2015 is imperative:

Hindu Transsexuals after getting their sex reassigned can validly adopt a child
after fulfilling the conditions under Section 7 in case of males and Section 8 in case of
females.36 There is no formal scrutiny required for adoptions under HAMA, and
transsexuals can validly adopt children privately from their parents. However, in case
of adoption which doesn’t involves their natural guardians, there is higher level of
scrutiny where the transsexuals have to prove before the court that they are actually
eligible, under Section 7 or Section 8 of the HAMA.

33. Act No. 57 of 1955.

34. Available on https://timesofindia.indiatimes.com/city/jaipur/community-demands-voter-id-
cards-referring-to-them-as transgender/articleshow/65555350.cms accessed on 12 August, 2021
at 06:10 pm.
35. Act No. 2 of 2016.
36. The Hindu Adoptions and Maintenance Act, (Act No.78 of 1956) 1956.

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The HAMA under Sections 7 & 8 recognises a valid adoption only if it is done
by a male or female, and thus, third genders are out of the scope of application of this
Act. Also, by virtue of Sections 4 & 5 of the said Act, adoptions by virtue of the
custom of reet in Hijras have been delegitimized, by providing overriding powers to
the provisions of the Act over customs.

1.5.5 Muslim Law

The essentials required to be fulfilled under Mohammedan Law for a civil

contract of marriage just require parties to be of opposite sexes, and not man and
woman. Hence, so long as the party belonging to the third gender marries someone
from the opposite sex, the marriage is valid. Therefore, two parties who belong to
third gender, but have different assigned sexes could marry under Mohammedan Law.
Similarly, a third gender person could marry a cis-gender person so long as they are a
heterosexual couple. This has been derived specifically from the textual interpretation
of Mohammedan Law in India, as no reported fact-situation depicting conflicts in
such an interpretation exist so far.37

1.5.6 The Juvenile Justice (Care and Protection of Children) Act, 2015

Section 41(6) of this Act38 is a path breaking reform that provides the right to
any “person” to adopt a child, and not a “male” or “female”. Additionally, it also
confers the right on the third gender couple to raise a child (if they are recognised as a
couple) since they can be classified as a childless couple under the provision.

1.5.7 The Transgender Persons (Protection of Rights) Act, 2019

The object of this Act39 is to provide for protection of rights of transgender

persons and their welfare and for matters connected therewith and incidental thereto.
The Transgender Persons (Protection of Rights) Act, 2019 seeks to recognise the
identity of transgender persons and prohibit discrimination in, inter alia, the fields of
education, employment, healthcare, holding or disposing of property, holding public

37. Asaf A. A. Fayzee, Outlines of Mohammedan Law 11 (Oxford University Press, New Delhi, 5th
ed., 2009).
38. Act No. 2 of 2016.
39. Act No. 40 of 2019.

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or private office and access to and use of public services and benefits. The impotent
provisions of this Act have been mentioned in the forgoing discussions.

1.6 GOVERNMENT POLICIES VIS-A-VIS TRANSGENDER RIGHTS

1.6.1 National Education Policy, 2020

In the 66 pages long National Education Policy (NEP) 2020, the word
‘gender’ appears only 16 times precisely. While NEP 2020 claims to have approached
gender as a ‘cross-cutting priority’ the mention of the word comes up substantially
only towards the end. The single tangible commitment from the government in
actualising this priority is stated in the setting up of a “Gender Inclusion Fund”,
ostensibly to assist in providing quality and equitable education for all girls, in
partnership with states and local community organisations. The Policy does not bring
the transgender students within the ambit of the “Gender-Inclusion Fund”.

Though, the section speaks of imparting a special curriculum for the

transgender students but fails to put forth the necessary tools and methodology to
adopt the same. It does not squarely address how to ensure the retention in school of
these transgender students and totally misses the point that gender equality is also
about boys and men and their battles with toxic male masculinity. The biggest gap is
the presence of any mention of how to create gender-equal sensitive mindsets for men
and boys and complete presence of any acknowledgement of the need to undo the
constant socialisation of young boys to acquire the gender-stereotyped traits of
‘strength’ and ‘masculinity’. Thus, the importance of having programmes that are
particularly targeted towards boys along with girls and transgenders is glaringly
missing. This policy is thus guilty of removing the spotlight from boys and men in
establishing a gender-equal education system.

1.6.2 State Policies

The states of Tamil Nadu and Kerala were the first Indian states to introduce a
transgender welfare policy. According to the policy, transgender people can access
free sex reassignment surgery (SRS) in government hospitals (only for male-to-
female), free housing, various citizenship documents, admission in government
colleges with full scholarship for higher studies, alternative sources of livelihood

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through formation of self-help groups (for savings) and initiating income-generation

programmes (IGP). Tamil Nadu was also the first state to form a transgender welfare
board with representatives from the transgender community.40 Kerala started
providing free surgery in government hospitals in 2016.41

The state of West Bengal set up a transgender welfare board in 2015 to

coordinate all policy decisions and development work pertaining to the transgender
population in the state.42The board, however, has been labelled an “all-around failure”
by several transgender activists. Supposed to meet once every month with
representatives from numerous state government departments, the board has only met
five times as of July 2017.43

In July 2016, the state of Odisha enacted welfare benefits for transgender
people, giving them the same benefits as those living below the poverty line. This was
aimed at improving their overall social and economic status, according to the Odisha
Department of Social Security.44

On 28 November 2017, N. Chandrababu Naidu, the Chief Minister of Andhra

Pradesh, announced the enactment of pension plans for transgender people. On 16
December 2017, the Andhra Cabinet passed the policy. According to the policy, the
State Government will provide an amount of ₹1,500 per month to each transgender
person above the age of 18 for social security pensions. The Government will also
construct special toilets in public places, such as malls and cinema halls, for
transgender people. In addition, the state has also established a transgender welfare
board.

In January 2018, the Kashmiri Finance Minister introduced a proposal to

the Jammu and Kashmir Legislative Assembly that would grant transgender people
free life and medical insurance, and a monthly sustenance pension for those aged 60+

40. Karthikeyan, Divya (25 May 2017). “Tamil Nadu, once a pioneering state for welfare of
transgenders, now shuns the third gender.”
41. Devasia, TK. “Why Kerala's free sex-change surgeries will offer a new lifeline for the
transgender community”, Scroll.in. Retrieved 19 March 2016.
42. The Transgender Welfare Development Board, West Bengal – A Wasted Potential, Centre for
Law & Policy Research. 13 April 2017.
43. The Hindustan Times, Tuesday, 4th July 2017.
44. Dash, Jatindra (2 June 2016). “Odisha becomes first state to give welfare to transgender
community” Reuters.

[16]
 Introduction

and registered with the Social Welfare Department. Transgender activists have
criticised aspects of the bill, including its requirement to establish medical boards to
issue "transgender certificates".

The Government of Delhi announced its intention in May 2018 to establish a

seven-member committee to review issues surrounding the transgender community,
including concerns of sexual abuse, discrimination at work as well as other societal
problems. "We will have a dedicated cell for transgender people, which will be
headed by a representative from the community. The commission receives a lot of
complaints of abuse against them. The cell will enable us to focus on issues faced by
[transgender people] and providing members greater support and safety.", said Swati
Maliwal, chief of the Delhi Commission for Women.

In July 2018, the Rajasthan Transgender Welfare Board (RTWB) announced

it would begin issuing "multi-purpose identity cards" to about 75,000 transgender
people in the state to help them access government schemes and benefits.

The Uttarakhand High Court directed the State Government in late September
2018 to provide reservation for transgender people in educational institutions, and to
frame social welfare programmes for the betterment of transgender people.

In early 2019, the Social Welfare Department of Assam published a draft

“transgender policy” with numerous objectives, including providing transgender
people access to educational institutions, providing shelter and sanitation for the
homeless, raising awareness, and issuing self-identification identity cards. The All-
Assam Transgender Association has criticised certain aspects of the policy, namely its
definition of the term "transgender".

In February 2019, the Maharashtra Government set up a “Transgender

Welfare Board” to conduct health programmes and provide formal education and
employment opportunities to transgender people. The board provides skill
development programmes to help transgender people find a job and free
accommodation for those seeking scholarships. A similar board was also set up in the
neighbouring state of Gujarat that same month. The Gujarat board provides various
welfare programmes for employment and education, and coordinates with state

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 Introduction

departments to ensure that the transgender community is able to take advantage of

government schemes. An educational campaign was also established in order to
sensitise the public.

In July 2019, the Bihar Government announced the creation of a transgender

welfare board, which would investigate and report on social and legal challenges
faced by transgender people in the state and provide financial assistance of up to
₹150,000 for sex reassignment surgery. In addition, those who refuse house on rent or
medical facilities to transgender individuals would be eligible for imprisonment
ranging between six months to two years.

In 2014, after the Supreme Court had identified transgender people as the third
gender, the Uttar Pradesh Kinnar Akhada Parishad had demanded the government to
set up a transgender welfare board. In March 2019, the State Law Commission had
submitted a proposal to the government for acknowledging the demands of the
transgender and protecting their civil and other rights.

The commission had drawn the attention of the government towards the
inheritance laws that did not include the transgender people. The Uttar Pradesh
Assembly passed the Uttar Pradesh Revenue Code Bill, 2020 to identify and allow the
transgender people in the state to inherit ancestral agriculture land, during this
monsoon season.

In September, 2020 after granting transgenders the rights to inherit their

ancestral agricultural land, the Uttar Pradesh government has decided to set up a
transgender welfare board. The transgender welfare board will identify transgenders
in Uttar Pradesh, enlist them, issue identity cards and ensure their enrolment in
various educational institutions. The government also intends to launch different
welfare schemes for the community for their social and economic rehabilitation into
the mainstream of society. The board would work for the welfare and uplift of the
transgender community. Along with the state government officers, the board would
also include representatives of transgenders and members of social organisations
working for their welfare.

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 Introduction

1.7 INTERNATIONAL LEGAL FRAMEWORK ON TRANSGENDER

RIGHTS

1.7.1 The Universal Declaration of Human Rights (UDHR) 194845

All human beings are born free and equal in dignity and rights. They are
endowed with reason and conscience and should act towards one another in a spirit of
brotherhood.46 Article 3 says everyone has the right to life, liberty and security of
person. And also, everyone has the right to recognition everywhere as a person before
the law47.

1.7.2 The International Covenant on Civil and Political Rights (ICCPR) 196648

Every human being has the inherent right to life. This right shall be protected
by law. No one shall be arbitrarily deprived of his life49. No one shall be subjected to
torture or to cruel, inhuman or degrading treatment or punishment. In particular, no
one shall be subjected without his free consent to medical or scientific
experimentation.50 Article 16 says everyone shall have the right to recognition
everywhere as a person before the law. No one shall be subjected to arbitrary or
unlawful interference with his privacy, family, home or correspondence, nor to
unlawful attacks on his honour and reputation.51

1.7.3 The Convention on the Elimination of All Forms of Discrimination Against

Women, 197952

States Parties shall take all appropriate measures to eliminate discrimination

against women in the field of employment in order to ensure, on a basis of equality of
men and women, the same rights, in particular53:

a) The right to work as an inalienable right of all human beings;

45. The Declaration was proclaimed by the United Nations General Assembly in Paris on 10th
December 1948, General Assembly resolution 217 A.
46. Article 1 of the Universal Declaration of Human Rights, 1948.
47. Article 6 of the Universal Declaration of Human Rights, 1948.
48. Adopted and opened for signature, ratification and accession by General Assembly resolution
2200A (XXI) of 16 December 1966, into force 23 March 1976.
49. Article 6 (1) of the International Covenant on Civil and Political Rights, 1966.
50. Article 7 of the International Covenant on Civil and Political Rights, 1966.
51. Article 17 (1) of the International Covenant on Civil and Political Rights, 1966.
52. Adopted in 18th December, 1979 by the UN General Assembly.
53. Article 11 (1) of the Convention on the Elimination of All Forms of Discrimination against
Women, 1979.

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 Introduction

b) The right to the same employment opportunities, including the application of

the same criteria for selection in matters of employment;

c) The right to free choice of profession and employment, the right to promotion,
job security and all benefits and conditions of service and the right to receive
vocational training and retraining, including apprenticeships, advanced
vocational training and recurrent training;

d) The right to equal remuneration, including benefits, and to equal treatment in

respect of work of equal value, as well as equality of treatment in the
evaluation of the quality of work;

e) The right to social security, particularly in cases of retirement, unemployment,

sickness, invalidity and old age and other incapacity to work, as well as the
right to paid leave;

f) The right to protection of health and to safety in working conditions, including

the safeguarding of the function of reproduction.

1.7.4 The Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment,54 (CAT) 1984

Each State Party shall take effective legislative, administrative, judicial or

other measures to prevent acts of torture in any territory under its jurisdiction.55

1.7.5 The Yogyakarta Principles, Indonesia, 200656

The Yogyakarta Principles is a document about human rights in the areas of

sexual orientation and gender identity, published as the outcome of an international
meeting of human rights groups in Yogyakarta, Indonesia, in November 2006. In
furtherance of the Yogyakarta Principles, YP Plus 10 was adopted on 10th Nov. 2017
to supplement the Yogyakarta principles. The YP plus 10 documents emerged from
the intersection of the developments in international human rights law with the
emerging understanding of violations suffered by persons on grounds of sexual

54. Adopted by the General Assembly of the United Nations on 10 December 1984 (resolution
39/46) and into force on 26 June 1987.
55. Article 2 (1) the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, 1984.
56. The Yogyakarta Principles, Indonesia in November 2006.

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 Introduction

orientation and gender identity and the recognition of the distinct and intersectional
grounds of gender expression and sex characteristics. The importance principles under
the Yogyakarta Principles are related to the Right to the Universal Enjoyment of
Human Rights57, the Right to Equality and Non-Discrimination,58 the Right to
Recognition before the Law,59the Right to Life,60the Right to Privacy,61the Right to
Treatment with Humanity while in Detention,62the Protection from Medical Abuses.63

1.8 STATEMENT OF PROBLEMS

Transgenders as an integral part of our society have been excluded from all the
mainstream social cultural and economic activities continuously and systematically
since ancient times. In this regard, the research firstly revolves around the question of
the availability of transgender welfare schemes in India. Secondly the research
proceeds to ascertain the various transgender identities that exist in India and
discussion around preference for Identity/ identities. Thirdly, the research analyses the
question of the efficacy of international and national legal framework in ensuring the
transgender right. Fourthly the research will also explore the question of Efficacy of
the state policies in ensuring Social cultural and economic opportunities for
transgender.

1.9 OBJECTIVES OF THE STUDY

The objectives of the study are as follows:

1. To analyze the Rights of Transgender in National and International

perspective.

2. To analyze and examine the Implementation of laws in India regarding

transgender.

3. To analyze and examine the Responsibility and Accountability of the State

and society.

57. Principle 1 of the Yogyakarta Principle.

58. Principle 2 of the Yogyakarta Principle.
59. Principle 3 of the Yogyakarta Principle.
60. Principle 4 of the Yogyakarta Principle.
61. Principle 6 of the Yogyakarta Principle.
62. Principle 9 of the Yogyakarta Principle.
63. Principle 18 of the Yogyakarta Principle.

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 Introduction

4. To elaborate their psychological, physical, and social differences.

5. To analyze and examine the Transgender Persons (Protection of Rights) Act,

2019.

1.10 HYPOTHESIS

The legal status of Transgender as a person and their rights have not been
equated with other gender due to prevailing social bias against them at every stage in
India. In the wake of increased demands for equal social and legal rights of
transgender, the laws and policies enacted in this regard have failed to make any
positive impact.

1.11 RESEARCH METHODOLOGY

The researcher has adopted the doctrinal method of the study. As a part of
doctrinal study, all the primary and secondary sources of information have been
analyzed and evaluated. Secondary resources include research Articles, books and
other relevant publications related to the study. The descriptive and analytical
methods of writing have been adopted also. In order to maintain the writing standard
and uniformity in the thesis, Indian Law Institute method has been used for citation,
acknowledgement, referencing and bibliography.

1.12 LITERATURE REVIEW

Several works had been done related to Rights of Transgender in India. These
works had been done in several dimensions. Here the researcher is to survey selective
literature.

Law Like Love: Queer Perspectives on Law64 is a collection of research papers in a

book form. This book contains various articles written by various authors highlighting
LGBT issue in the context of Delhi High Court Judgment of 2009. Some playful,
some critical and others reflective and irreverent, this unique collection of pieces
brings the life, structures and institutions of law alive and shine with relevance in the
contemporary moment.

64. Arvind Narain and Alok Gupta, Law Like Love: Queer Perspectives on Law (Yoda Press
Publication, New Delhi, May 2020).

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 Introduction

Ardhanarishvara the Androgyne: Probing the Gender Within65 This book has
successfully attempted to reveal that while western perceptions have always classified
human beings into either male or female, the India belief in the androgynous nature of
human stems from the divine concept of Ardhanarishvara, literally half man and half
woman. More a philosophical construct than a social or cultural expression, the divine
nature of this ideology lent it an initial acceptability. Today, however, it has emerged
from the closet as a social manifestation, causing the blurring of traditional sex roles.
This book dares to challenge, question, muse over, analyse and stretch over frontiers
of mind towards the hard-hitting reality of gender expression.

Sexual and Gender Diversity66 Thailand allows an open array of LGBT venues,
organisations and events, and the country is famous for quality trans medical
procedures. The government advertises the country as an LGBT friendly tourist
destination. Police do not raid or harass LGBT venues and events. In Thai society,
individual gays and lesbians are rarely “out” to their birth families or on the job.
Trans, in contrast, are visible and are limited in acceptance in families and
employment. Discrimination on grounds of sex, gender identity and gender expression
are prohibited by the Gender Equality Act, which may apply, as well, to sexual
orientation discrimination. The English language press is very LGBT friendly, but the
Thai language press is more negative. Thai films with gay characters are common,
though often with trans comic stereotypes. Trans are unable to get the “sex”
designation on personal documents altered. Discussions are underway on a Gender
Identity Law to allow this change. A draft law to allow same-sex couples to register
their relationships and gain limited legal rights was given preliminary approval by the
cabinet in December 2018. Some political parties now support legal recognition of
same-sex relationships.

Encyclopedia of Human Rights67 in this article, the author asserts that nowhere in
the body of United Nations treaties and declarations is there any reference to

65. Dr. Alka Pande, Ardhanarishvara the Androgyne: Probing the Gender Within (Rupa
Publications India Pvt. Ltd. New Delhi, February 2004).
66. Douglas Sanders, Sexual and Gender Diversity (Routledge Handbook of Contemporary
Thailand, 2019).
67. David P. Forsythe, Encyclopedia of Human Rights 2672 (Oxford University Press, Volume 4,
Volumes 5, 2009).

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 Introduction

homosexual, bisexual, transsexual, intersexual or transgendered individuals. The

author has further discussed the problem of discrimination against homosexual,
bisexual, intersexual and transgendered individuals in the light of UN treaties,
Convention and various case laws.

Crystallising Queer Politics- The Naz Foundation Case and its Implications for
India’s Transgender Communities68 in this article, it has been argued that the Naz
Foundation judgment extends beyond the mere reading down of Section 377 of the
Indian Penal Code and provides the plinth for elimination of all forms of
discrimination against persons, not merely on the basis of their sexual orientation but
also their gender identity. In this article, the author has discussed the impact of the
Naz Foundation Case on the legal status of transgendered individuals in the Indian
Society.

Same Sex Love and Indian Penal Code Sec-377: An Important Human Rights
Issue for India69 in this article author discusses the repercussions of criminalization
of same sex sexual activity under Section 377 of the Indian Penal Code in the light of
various mandates of International Human Rights law and also examines the
development of the rights of LGBT community on international front. The paper
discusses the relatively new phenomena of “sexual orientation” and “gender identity”,
the reasons why criminalisation of samesex sexual activity by IPC Sec. 377 is an
important human rights issue for India, the roots of Sec. 377 in Christian religious
law, and the repeal of its equivalent in English criminal law.

Transgender Rights70 “Transgender Rights is a magisterial collection of essays

covering cutting-edge legal developments, movement histories, and political theory,
written by some of the most celebrated names in both trans activism and scholarship.
This book introduces transgender/transsexual/intersex social, political, and legal
issues to a broad audience.

68. Siddharth Narrain, “Crystallising Queer Politics- The Naz Foundation Case and its Implications
for India’s Transgender Communities” pp. 255-270, 2 NUJS L. Rev., (July-September 2009).
69. Robert Wintemute, “Same Sex Love and Indian Penal Code Sec-377: An Important Human
Rights Issue for India” pp. 31-65, 4 NUJS L. Rev., (January - March, 2011).
70. Paisely Currah, Richard M. Juang, and Shannon Price Minter, Transgender Rights (University of
Minnesota Press, Minnesota, First edition, 18 August 2006).

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 Introduction

Red Lipstick: The Men in My Life71 This book based on life of Laxmi Narayan
Tripathi, known simply as Laxmi, is an activist and classical dancer from Mumbai.
Assigned male at birth, she embraces a hijra identity for herself. It is the generic
blanket term used for eunuchs, intersex, and transgender people in the Indian
subcontinent. They are constitutionally recognized as belonging to the “third gender”
in countries of this region. Laxmi is the first transgender person to represent Asia
Pacific at the United Nations and she was even a participant on Bigg Boss, the Indian
version of Big Brother. In Red Lipstick, written in collaboration with Pooja Pandey
and published in 2016, Laxmi provides a no-holds-barred account of her remarkable
life with its ups and downs. It is the sensational story of sexual awakening and self-
acceptance, charting her journey from a simple child to a living icon.

Neither Man nor Women: The Hijras of India72 one of the most outstanding
literature highlighting the roles of Hijras in association with mother goddess so as to
embrace feminism in attaining a special and spiritual figure within the society. In
addition, it also provides us a deep understanding of who they are and how they wish
to identify themselves, giving a clear conception about difference between Trans-man
and trans-women. Unique and valuable study of culture, society, and behavior in
relation to gender roles.

With respect to Sex: Negotiating Hijras identity in south India73 is intensive work
done by Gayatri Reddy highlighting the complex relationship between the Hijras and
the local people in negotiating their identity across various aspects of life. She also
stresses on the roles they contributed while performing the rituals and functions and
made an attempt to understand their uniqueness character in establishing their
identity.

Monograph on Clan Culture of Hijras74 is a beautiful piece of work illustrating the

formation of Hijras identity in Bangalore within outside and inside of Gharanas with

71. Laxmi Narayan Tripathi and Pooja Pande, Red Lipstick: The Men in My Life (Penguin Random
House India, 31 August 2016).
72. Serena Nanda, Neither Man nor Women: The Hijras of India (Wadsworth Publishing Company,
1990).
73. Gayatri Reddy, With respect to Sex: Negotiating Hijras identity in South India (Yoda Press, New
Delhi, 2006).
74. Tissy Mariam Thomas, Monograph on Clan Culture of Hijras (Centre for Research Projects,
Christ University Bangalore, 2013).

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 Introduction

concern to social, political, economic and cultural barriers. He also stresses on need of
creating awareness on Hijras towards hostility and intolerance prospective from the
main stream.

The Legal Status of Transsexual and Transgender Persons75 this book examines
questions that are thus far under-researched, namely what the full legal consequences
of a legal change of sex/gender should be - for example, with regard to the existing
legal relationships, such as marriages and registered partnerships, but also concerning
children and parentage. The Legal Status of Transsexual and Transgender Persons is
the result of an international research project, including not only national reports from
14 European and non-European jurisdictions, but also two chapters that look at legal
sex/gender changes from a Christian perspective, and one chapter from a medical-
psychological perspective. The final chapter compares and contrasts the different
approaches and requirements and makes recommendations for best practice and law
reform.

Intersexuality and the Law: Why Sex Matters76 in Intersexuality and the Law, Julie
A. Greenberg examines the role those legal institutions can play in protecting the
rights of people with an intersex condition. She also explores the relationship between
the intersex movement and other social justice movements that have effectively
utilized legal strategies to challenge similar discriminatory practices. She discusses
the feasibility of forming effective alliances and developing mutually beneficial legal
arguments with feminists, LGBT organizations, and disability rights advocates to
eradicate the discrimination suffered by these marginalized groups.

Transgender History77 Transgender History includes informative sidebars

highlighting quotes from major texts and speeches in transgender history and brief
biographies of key players, plus excerpts from transgender memoirs and discussion of
treatments of transgenderism in popular culture.

75. Jens M. Scherpe, The Legal Status of Transsexual and Transgender Persons p. 167 (Intersentia,
Sheraton House, 2015).
76. Julie A. Greenberg, Intersexuality and the Law: Why Sex Matters (New York University Press,
2012).
77. Susan Stryker, Transgender History (Seal Press, New York, 2008).

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 Introduction

1.13 SCHEME OF THE STUDY

The structure of the study is divided into seven chapters:

Chapter I: Introduction

This Chapter is brief framework for discussion of rights of transgender in

India and its legal issues and challenges. This chapter also contains meaning,
definition, categories of Transgender, Constitutional and Legal Dimensions of
Transgender Rights, Legislative enactments, Central & State Government Policies,
International Legal Framework, Statement of Problems, Objectives of the study,
hypothesis, Research Methodology, literature review and Scheme of the study.

Chapter II: Meaning Definition and Historical Background of the Rights of

Transgender

This chapter mainly examines the meaning, definition and historical

background of the transgender right of in India. Meaning of transgender and historical
background is divided in four-part consisting of ancient period, followed by medieval
period, colonial period and lastly modern period. This chapter also discusses the
social, cultural, religious and legal status of transgender in different religions.

Chapter III: Rights of Transgender: International Perspective

This chapter brings to fore the discussion on international perspective related

to rights of transgender as human as under human rights laws. In this regard, the
international conventions which have provisions relating to the transgender and
constitutional provisions of the different countries have been discussed. Lastly, this
chapter contains the statutory provisions of trans-gender in various countries.

Chapter IV: Rights of Transgender: National Perspective

This chapter deals with the status of transgender under Indian Constitution as
well as other statutory provision relating to the transgender such as the Transgender
Person (Protection of Rights) Act, 2019, Family Laws, Labour Law, The Insurance
Act, 1938, The Public Liability Insurance Act, 1991, other laws. This chapter also
discusses the social and political challenges of transgender in India.

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 Introduction

Chapter V: Rights of Transgender: Judicial Approach in India

This chapter deals with Judicial response relating to the Transgender Rights in
India and in this regard, it discussed the issues of Legal recognition of transgender
identity, Rights of transgender marriage, Sex reassignment surgery, Homosexuality
and decriminalizes of unnatural offences, etc. which has been discussed in various
decisions.

Chapter VI: Rights of Transgender: Legal Issues and Challenges

This chapter is an attempt to explain the legal issues and challenges regarding
Transgenders. In this chapter it is also discussed what are legal issues and challenges
like need of empowerment for transgender, social status of the transgender, violations
against sexual minorities, transgender and policies treatment, transgender and
discrimination, health status of transgender, transgenders and media, etc.

Chapter VII: Conclusion and Suggestions

The last chapter conclude the work on the basis of whole of the study and
proposes accordingly various suggestions to settle those issues and challenges
outlined the research.



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