Legal Rights and Recognition of Third Gender in India

Shivendra Pratap Singh

Advocate

High Court Lucknow

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India’s rich cultural history has long recognized the existence of people beyond the male-female binary, such as the Hijra community. However, it is only in recent times that the legal system and the Constitution have begun to extend unequivocal rights and recognition to the third gender. This is a significant shift towards ensuring equality, dignity, and inclusivity for all.

1. Legal Recognition:

  • National Legal Services Authority v. Union of India (2014): This landmark judgment by the Supreme Court of India is a cornerstone in the recognition of transgender rights. The Court officially recognized the third gender for the first time and emphasized that they should be considered a ‘socially and educationally backward class’, thus eligible for reservations under the Constitution.

2. Right to Self-identification:

  • Following the NALSA judgment, transgender persons have the right to self-identify their gender as male, female, or third gender. This self-determination is recognized not just in social contexts but also in official documents like voter IDs, passports, and driver’s licenses.

3. Constitutional Protections:

4. Right to Health:

  • The Supreme Court directed central and state governments to take steps for providing medical care to transgender individuals, including separate public health facilities.

5. Education and Employment:

  • The third gender has the right to reservations in educational institutions and jobs, acknowledging the historical discrimination they’ve faced.

6. Protection from Discrimination:

  • The Transgender Persons (Protection of Rights) Act, 2019: This legislation prohibits discrimination against a transgender person in areas such as employment, education, housing, and healthcare. It also provides for a mechanism for obtaining a certificate of identity as a transgender person.

7. Protection from Sexual Offences:

  • The 2019 Act also criminalizes the enticement of a transgender person into forced or bonded labor, denying them the use of public spaces, and wrongful eviction from their homes. Furthermore, it protects them from physical, sexual, verbal, emotional, and economic abuse.

8. Welfare Measures:

  • Both central and state governments have been directed to create welfare schemes for the third gender, addressing their needs in health, education, and social security.

Challenges and Criticisms:

While these legal provisions mark significant progress, they are not without their critiques:

  • The requirement in the 2019 Act for a transgender person to obtain a certificate to be recognized as such has been criticized for not truly respecting the principle of self-identification.
  • The definition of “transgender” in the Act has also faced criticism for not being comprehensive and reflective of the community’s understanding.
  • There are also concerns about the lack of proper implementation mechanisms for the welfare schemes and protective measures outlined in various policies and laws.

Conclusion:

The legal recognition and rights extended to the third gender in India mark monumental steps toward equality and justice. However, true inclusivity will be achieved when these rights are implemented in spirit, ensuring that the third gender can lead dignified, safe, and fulfilling lives, free from societal prejudice and discrimination.