Time to "act": Guaranteeing full citizenship of transgender persons in India

Abstract

Equality is firmly etched not only in the Preamble but also in the Equality Code (Arts. 14-18) of the Constitution of India. Yet, even more than seven decades after the Constitution came into force, the Republic is far from achieving this equality. In particular, gender minorities suffer from the highest level of marginalization in every aspect of their public and private lives. The full citizenship of transgender individuals was recognized in the National Legal Services Authority v Union of India and Ors (NALSA) judgment. But transgender individuals continue to suffer from abandonment, abuse, harassment, discrimination in education, employment, housing, public access to other basic facilities, and lack of familial rights. Recognition as a person is the most prized possession for a human being. But even this is being consistently denied to transgender individuals. Law, which is expected to protect the interests and safeguard the rights of all, has unfortunately, let down the community. The Transgender Persons (Protection of Rights) Act 2019, has not only failed to secure the identity, social position, and rights of transgender individuals but has reversed several guarantees that the NALSA put forth. The community deserves comprehensive and progressive legislation. The law so enacted must respect, protect, and promote their human rights, and also do much more to ensure that centuries of marginalization is reversed. To this end, this chapter sheds light on key areas such as defining transgender and intersex persons, right to recognition of gender identity, ways to address discrimination and hate crimes, provisions for intersex persons, recognition of conjugal rights, kinship, right to education, employment, healthcare, etc., that must be urgently and systematically addressed through legislative intervention. Along with reference to constitutionally guaranteed rights, international human rights instruments, progressive trans-inclusive laws from around the world have also been extensively referred.