Looking Beyond the Binaries
Although used quite interchangeably, gender and sex are quite different. While, sex refers to
the biological genitalia a person is born with, gender is a social construct. It refers to the
socially identified characteristics essential to live in a society. While sex can be chromosomal
– male and female and inter-sex; gender comes on a much broader spectrum. Any gender,
other than the two socially accepted ones, man and woman, is termed as non-binary.
In India, transgender people are fondly called hijras, that are neither men nor women by the
virtue of birth. Even though they are not psychologically women, they do get up as women.
Hence, they claim to be an institutional ‘third gender’.
Hijras included emasculated and non-emasculated men, and intersexed people. Transgender also includes people who intend to or have gone under sex reassignment surgery, popularly known as SRS.
Hijras carry a special place in Hindu society, largely owing to their divine loyalty to Lord
Rama. They are quite hard to miss in glistening sarees, bold makeup and crashing the
festivities. People often have mixed reactions upon seeing hijras – starting with fear, ending
in laughter, and divine sense of auspiciousness radiating from them.
However, outside these festivities and sarees, these people are greatly exploited, owing to the stigma and sexual fetishes of cis population, mainly cis men.
Transphobia: Instances of Systematic Failure
India recognized third gender with a landmark judgement, National Legal Service Authority
v. Union of India 1 , famously called the ‘NALSA Judgement’. Held:
Transgender is an umbrella term for people whose gender identity and expression do
not conform with their biological sex.
Art 14 doesn’t restrict the word ‘person’ to the binaries. All people, including the
transgender and the non-binary come under the equal protection before law in all
National Legal Service Authority v. Union of India, 2014, 5 SCC 438.
‘State spheres’. Discrimination on the grounds of sexual orientation and gender
identity does violate Art 14.
The discrimination ground, ‘sex’ in Art 15 and 16 is not just limited to biological sex,
but also intended to include people who consider themselves neither male nor female.
Gender identity is an integral part of Art 19 and 20.
Recognized them as a socially and economically backward class, and acknowledging
that the community is subject to violence in India, said they must have access to
Even after 5 years after the judgement, Government failed to enact a suitable legislation to
give effect to the judgement. The community faces sexual and physical violence in and
outside policy custody and are falsely booked by the police
2 . Further, transgender population has the right to self-determination of identity, which would later become their legal identity
3.Despite this, most transgender people do not have any legal documentation as a result of
which they are unable to receive vaccination 4 as well as certain monetary benefits 5 .
Due to lack of a concrete legislation, there have been several instances, where, based on
NALSA judgment, individuals had to move to court to file for amendments in certain acts, or
owing to the gross violation of their rights guaranteed by the NALSA judgment. However, no
action was taken in either case 6 .
However, Government did introduce a concrete legislation, Transgender Persons Act, 2019,
to give the judgment a legitimate direction. However, there exists immense vacuum between
the judgment and the legislation – the act now requires people to obtain psychological
certificates for ‘new identity’, and a certificate by a medical professional, if undergone an
SRS 7 . This goes against the provision of self-determination and declaration of identity for
seeking legal recognition 8 . Many transgender people do not have resources to obtain
psychological certificates, which results in no legal recognition whatsoever. Further,
reduction in punishment regarding sexual offences against transgender people (as compared
to against a cis woman) 9 reinforces the unequal stature of the community. Further, the act
criminalizes begging 10 .
The act completely ignores a whole lot of core issues – marriage and adoption, political
representations, reservations etc., and hence, has come under heavy scrutiny.
Recommendations and Conclusion
We can start by including pro-LGBTQ content in school curriculum, launching awareness
campaigns and introducing some political representation for transgender community to
consult in the enactment and implementation of laws. Teaching and learning gender-neutral
words can go a long way in reducing day-to-day stigma and transphobic content.
India still has a long way to go, in terms of being trans-inclusive. Clearly, the judgment is not
enough, since the government has not done enough. It took five years to come up with a
concrete law, which didn’t even address the core issues of trans population. Government has
also ignored certain mandated directions by the judgments – like incorporating the
community in SEBC category and making reservations for them.
2 ‘Police harass transgenders most, says study’, (Times of India, 18 th April, 2016),
xt&utm_campaign=cppst, accessed 1 st Nov, 2021.
3 Ibid., q1.
4 Riya Singh Rathore, ‘Thousands of India's transgenders are missing vaccines due to fear, follies and lack of IDs’
(Business Insider India, 30 th June, 2021), https://www.businessinsider.in/india/news/thousands-of-indias-
transgenders-are-missing-vaccines-due-to-fear-follies-and-lack-of-ids/articleshow/83990511.cms, accessed 1 st
5 Shreya Raman, ‘Transgenders can't get state benefits as most official data ignores “other”’, (Times of India,
11 th June, 2021), https://www.business-standard.com/article/economy-policy/denied-visibility-in-official-data-
transgenders-can-t-access-benefits-121061100148_1.html, accessed 1 st November, 2021.
6 Megha Chandra, ‘The Effect Of The NALSA Judgement On Inclusion Of The Transgender Community (Part 3)
(Ungender, 4 th August, 2020), https://www.ungender.in/nalsa-judgment-analysis-human-rights-trans-
community-india-ungender/, accessed 1 st November, 2021.
7 Transgender Persons Act, 2019, s5.
8 Supra, q4.
9 Transgender Persons Act, 2019, s18.
10 Transgender Persons Act, 2019, s19.
About the Author –
Ria Ghelani is a second-year BA LLB student at NMIMS,
interning with Stambh, with a strong passion for all things mental health,
education and LGBTQ+ community.