The constant struggles by trans activists resulted in the judiciary passing a landmark judgement, which amplified and protected trans rights.
The Supreme Court of India in its ground-breaking decision of National Legal Services Authority vs. Union of India AIR (2014) for the very first time distinguished transgender individuals from binary genders (i.e. male/female) and recognised them as a third gender under the Indian constitution. This judgment marked a historic shift in the Indian legal system — one that finally acknowledged gender identity as an integral part of personal autonomy and human dignity. The court took into account the discrimination that the trans community had undergone in India. While the lack of inclusivity in areas of education and employment is a hindrance to their growth and development.
The judgment also highlighted that gender identity goes beyond physical appearance or medical procedures, and is instead rooted in one’s sense of self and psychological experience. This understanding formed the foundation for progressive interpretations of gender and equality in India.
Some of the important points of this Act
- The judgment recognised their right to life and dignity as guaranteed by the constitution. It further directed both central and state governments to take proactive measures in ensuring equal access to public spaces, social welfare schemes, and job opportunities for transgender persons.
- The judgment was then given a statutory effect by formulating the Transgender Persons Act. This Act aimed to translate judicial recognition into actionable rights, bridging the gap between constitutional promises and lived realities.
- The act defines the term transgender as including all individuals whose gender does not conform to the gender assigned to them at birth and includes trans-man and trans-woman (whether or not they have undergone sex reassignment surgery). It also recognises individuals with intersex variations and those who identify as genderqueer, ensuring that protection is inclusive and not restricted to any one identity.
- By legally affirming the right to self-identification, the judgment and subsequent Act laid the groundwork for a more equitable society — one that continues to evolve through awareness, representation, and reform.
Challenges of a transgender person
Through the years the non-recognition of the third gender in both legal and social structure has created a system, where there is a lack of equal protection of the law and socio-economic discrimination in society faced by the trans community.
The Transgender Persons Act aims to create a structure that ensures equal protection and non-discrimination against trans individuals. In the workplace, the Act puts the responsibility on the `establishments’ for creating an anti-discrimination policy against transgender individuals, while providing equal opportunity in matters inclusive of recruitment, promotion, and other employment-related decisions. Under the Act, the term “establishment” covers any company or body corporate or firm, cooperative, trust, agency, or institution. While the act also defines discrimination as denial or discontinuation of access to or enjoyment of, or unfair treatment in employment. The Transgender Persons Act further puts the responsibility on the establishment to :
Provide facilities to transgender persons, Chapter V requires Establishments to ensure compliance with the act and provide facilities as may be prescribed by the act.
Existence of a grievance redressal mechanism to deal with complaints relating to trans individuals, to have a complaint officer to deal with such complaints. Similar to the requirements under the POSH Act (The Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013), organisations should create a grievance redressal mechanism for transgender individuals that protects their interests.
Organisations are required to update their HR, administrative, recruitment, and employee benefit policies and manuals making them inclusive of the rights of trans individuals. Finding ways to be inclusive of the third gender in the workplace through a non-discrimination and equal opportunity policy in place.
Most importantly the responsibility of an organisation is to educate its employees towards values of gender inclusiveness as well as acceptance of transgender persons into the corporate environment. This transition can also be smoothened by the creation of gender-neutral washrooms, dress codes for trans individuals. By also being sensitive towards the struggles of the trans individual the corporates can be the batons of change by creating an inclusive world for the third gender in a binary structure.