essay on transgender in india

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Leaving no one behind: Transgender inclusion in India's sustainable development

Author : Sharon Sarah Thawaney

Expert Speak Terra Nova

Published on nov 28, 2023.

Implementing inclusive policies aligned with SDGs is crucial to counteract discrimination against transgender in India

The 2030 Agenda for Sustainable Development provides a comprehensive framework for addressing global challenges and fostering a more equitable and sustainable future for all. Its 17 Sustainable Development Goals (SDGs) are not only a blueprint for achieving peace and prosperity for both the planet and its people but also a clarion call for global cooperation amongst United Nations (UN) member states. These goals seek to achieve socio-economic development, with the underlying theme of “ Leaving no one behind ” (LNOB). This theme goes beyond helping the most impoverished—it involves fighting discrimination and reducing inequalities globally, based on the UN human rights framework.

Transgender  is an umbrella term that can be used to encompass people whose gender identity is different from the gender ascribed at birth.  

This essay seeks to explore the status of the transgender community in India’s sustainable development journey. By analysing transgender rights in India, this brief envisions how the SDGs can help foster an environment that guarantees inclusion, equality, and social justice for this community.

Transgender  is an umbrella term that can be used to encompass people whose gender identity is different from the gender ascribed at birth. India, within the South Asian socio-cultural context, carries one of the richest histories of the ‘ Hijras ’ —who represent only one segment of the transgender community among other gender non-conforming identities. Evidence of this community is referenced in various temple carvings and religious scriptures. Even during the Mughal era, hijras held prestigious positions in the royal court . However, this community did not find a place within Western perceptions of gender and was classified as “criminals” under the Criminal Tribes Act of 1871 by the British colonisers. This marked the institutionalisation of the transgender community's marginalization—a situation that persists to this day.

The nature of this marginalisation is evident, with the transgender community consistently facing significant barriers in accessing healthcare , education , housing , and employment . Their daily lives are marred by the pervasive influence of stigma, discrimination, and violence, all of which are perpetuated by deeply ingrained societal biases and institutional inadequacies left unaddressed, effectively relegating them to the peripheries of society.

The 2011 census for the first time, introduced the 'other' category alongside male and female for gender identification. However, it's important to highlight that the census did not collect specific data on 'transgender' individuals. This 'other' category accounted for 4, 87,803 individuals, and various welfare measures are based on this number, for the transgender community. Thus, this is not an accurate number, creating a flawed space for gender identification.

A groundbreaking milestone was arrived at with the Indian Supreme Court’s historic NALSA judgment , affirming the right to self-identification of gender for transgender persons—which, however, carries its own set of challenges . 

Over the past decade, India has made substantial progress in advancing the rights and socio-economic inclusion of transgender individuals. In 2014, a groundbreaking milestone was arrived at with the Indian Supreme Court’s historic NALSA judgment , affirming the right to self-identification of gender for transgender persons—which, however, carries its own set of challenges . Additionally, in 2018 Section 377 was decriminalised , legalising consensual same-sex adult relationships. These legal strides were complemented by the enactment of the Transgender Persons (Protection of Rights) Act in 2019 , which, along with subsequent rules in 2020 , articulated and safeguarded the rights of transgender individuals across various sectors, including education, healthcare, and the workplace, with a focus on improving their overall welfare. These have culminated in the launch of the National Portal for Transgender Persons and with it a slew of welfare measures . The Act in itself is heavily contested; further bureaucratic processes coupled with a stigmatised approach have made it difficult for these to reach actualisation

By aligning with the SDGs, India can tap into a wealth of international commitments and best practices related to gender equality, inclusivity, and human rights. The Universal Declaration of Human Rights which underscores the equality and dignity of every person globally has resolutions, outlined in the Yogyakarta Principles . These frameworks collectively underscore the imperative of ensuring the rights and well-being of transgender persons on a global scale. Therefore, we can consider that the foundation for the inclusion of trans rights within the SDGs is rooted in the goals themselves and international treaties.

SDG 1 is dedicated to eradicating multidimensional poverty, and transgender individuals are at greater risk due to systemic exclusion from economic, housing, and employment structures. This exclusion is further heightened by their disconnection from family and/or social support networks.

The Universal Declaration of Human Rights which underscores the equality and dignity of every person globally has resolutions, outlined in the Yogyakarta Principles .

Turning to SDG 4 , this focuses on education, bringing to light a crucial factor that hinders their economic opportunities. In India, the National Human Rights Commission Survey in 2018 , finds that a staggering 96 percent of transgender individuals face employment discrimination; they are often relegated to low-paying or exploitative occupations, such as sex work and panhandling, where 92 percent are denied employment opportunities. This is owed to the non-inclusive nature of schools, towards gender-deviant children. The “other” category exhibits high dropout rates, and low pass percentages, indicating a significant educational disparity , with a literacy rate of 56.1 percent, notably lower than the national average of 74.04 percent.

It is intriguing yet noteworthy that SDG 5 , focusing on gender equality, does not explicitly encompass gender non-conforming identities in its targets . However, SDG 8 seeks to promote inclusive economic growth, quality employment opportunities, and secure employment, which is crucial for marginalised groups like the transgender community.

SDG 10 , focused on reducing inequalities, emphasises inclusive social, economic, and political inclusion without discrimination. Therefore, this SDG could be broadly understood to encompass gender non-conforming individuals , like the transgender community.

Several Indian states are at the forefront of championing transgender rights. Notably, Odisha has pioneered a dedicated transgender policy to boost the social and economic well-being of the community. In 2021, Karnataka made history by amending recruitment rules to introduce a 1 percent reservation for transgender individuals. The state has also implemented welfare measures , addressing issues like the 58 percent dropout rate and providing scholarships. Additionally, Tamil Nadu has taken a significant step by incorporating transgender individuals into the Most Backward Classes (MBC) category , aligning with OBC, a move that recognises and tackles their social and economic needs.

Karnataka made history by amending recruitment rules to introduce a 1 percent reservation for transgender individuals. 

Despite laws in India addressing transgender issues, challenges persist due to the deep-seated societal stigma rooted in British colonial practices that crept its way into our Constitution. Therefore, implementing inclusive policies aligned with SDGs is crucial to counteract ongoing discrimination institutionalised during the colonial era.

The SDGs, serving as a global guide for sustainable development, take the lead in shaping inclusive policies. Although SDG 5, focusing on gender equality, does not explicitly mention the transgender community, overlooking these identities contradicts the fundamental principle of “Leaving no one behind”. We must explore the implementation of SDGs within an inclusive environment and consider how these goals can be incorporated into India's development agenda for the transgender community.

Sharon Sarah Thawaney is the Executive Assistant to the Director (Kolkata) at the Observer Research Foundation

• GENDER ISSUES
• Sustainable Development
• 2011 census
• Gender equality
• Global commitments
• global equality
• Hijras history
• Inclusive growth
• Legal milestones
• SDGs impact
• SDGs relevance
• societal barriers
• Transgender rights in India
• UN cooperation

The views expressed above belong to the author(s). ORF research and analyses now available on Telegram! Click here to access our curated content — blogs, longforms and interviews.

Sharon Sarah Thawaney

Sharon Sarah Thawaney is the Executive Assistant to the Director - ORF Kolkata and CNED, Dr. Nilanjan Ghosh. She holds a Master of Social Work ...

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In the evolving landscape of reproductive rights, the intersectionality of gender identities and abortion rights in India demands critical examination. Recognising the multifaceted challenges faced by transgender individuals in accessing healthcare, this essay explores the imperative for specific legal provisions safeguarding their reproductive autonomy. In a country where societal norms often marginalise transgender communities, the discourse on abortion rights becomes inherently linked to broader conversations on inclusivity and justice.

Yet, within the existing legal framework, affording transgender individuals the right to abortion is attainable, a standpoint this essay contends.

What are the issues faced by the trans community?

The presence of transgender individuals in the Indian subcontinent can indeed be traced back to ancient times, as evidenced by mentions in ancient Hindu texts. Despite this historical acknowledgement, contemporary Indian society continues to pose significant challenges for the transgender community, rendering them one of the most vulnerable groups.

Stigmatisation surrounding transgender identity remains pervasive in today’s society, making it difficult for transgender individuals to assimilate into mainstream culture. This social stigma often forces them to live in isolation, estranged from broader societal acceptance. Discrimination and oppression against the transgender community persist, exacerbating their vulnerability. Recently, it surfaced in the form of a petition filed by a transwoman teacher in the Indian Supreme Court against her dismissal allegedly because of her transgender identity.

Moreover, a pressing issue faced by transgender individuals is the lack of access to proper medical care . Transgenders often encounter difficulties in obtaining appropriate healthcare services, which should encompass not only general medical needs but also specific healthcare related to gender identity.

History of transgender rights in India

The NALSA judgment, officially known as the National Legal Services Authority v. Union of India , marked a significant milestone in recognising and affirming the rights of transgender individuals in India. In this landmark ruling, the Supreme Court acknowledged the need for legal recognition of the transgender community.

The Court’s directives encompassed various measures for transgender individuals, including the establishment of separate HIV Sero-surveillance Centres, the resolution of social challenges without requiring gender confirmation surgeries, the provision of medical care and distinct facilities, the formulation of social welfare schemes, the promotion of public awareness for inclusivity, and the restoration of respect and historical significance transgenders in society.

However, one key aspect of the judgment was the shift from a ‘biological test’ to a ‘psychological test’ for identifying gender. The court emphasised that gender identity should not be solely determined by biological factors but should also consider an individual’s psychological sense of self. This change in perspective aimed to provide a more inclusive and comprehensive understanding of gender. Moreover, the NALSA judgment upheld the right of transgender individuals to self-identify their gender. The Supreme Court directed both the Central and State governments to legally recognise the self-identified gender of transgenders, emphasising that any form of discrimination against them would violate their fundamental rights.

By recognising the rights of transgenders and advocating for their legal recognition, the NALSA judgment played a crucial role in promoting inclusivity and safeguarding the fundamental rights of transgender individuals in India.

A welcome step by the Indian Supreme Court

The judgment in X v. Health & Family Welfare Department , particularly the statement authored by Justice D.Y. Chandrachud, has significantly brought abortion rights into the spotlight in India.

The case specifically dealt with the abortion rights of ‘unmarried’ women under the Medical Termination of Pregnancy Rules, 2003 (MTP Rules), and the Medical Termination of Pregnancy Act, 1971 (MTP Act). MTP Act and MTP Rules are the legislations which lay down the laws and rules for abortions in India. In this case, the court affirmed that unmarried and single women have the reproductive right to abortion under section 3(2)(b) of the MTP Act, which allows termination by a registered medical practitioner for a prescribed category of women, as per the MTP Rules, if the pregnancy duration is between twenty and twenty-four weeks, provided at least two registered medical practitioners are involved. Similarly, it was held that Rule 3B of the MTP Rules explicitly includes unmarried and single women under 3B(c), addressed under the ‘change of marital status’ category. Rule 3B lists down the category of women eligible for abortion as per section 3(2)(b) of the MTP Act.

However, what stirred controversy and drew attention to the case was the inclusive language used by Justice D.Y. Chandrachud. The statement, “…we use the term ‘woman’ in this judgment as including persons other than cis-gender women who may require access to safe medical termination of their pregnancies,” marked a crucial departure from traditional interpretations. By expressly including individuals beyond cis-gender women in the definition of ‘woman,’ the judgment sought to expand the scope of the MTP Rules and MTP Act to encompass even transgender individuals.

Although the appellant’s prayers did not specifically address the issue of gender, the Supreme Court’s proactive stance in interpreting and expanding the scope of the MTP Act can be seen as an instance of judicial activism.

This judicial activism is considered essential as it broadens the ambit of the MTP Act, ensuring that transgender individuals have access to proper medical facilities and can exercise their reproductive rights without hindrance. The court’s decision reflects a commitment to inclusivity and underscores the importance of adapting legal interpretations to contemporary understandings of gender and reproductive rights.

A case for transgender abortion rights

Apart from the X v. Health & Family Welfare Department ruling, which broadened abortion rights for unmarried and single transgender individuals, there exists the potential for the extension of these rights to encompass all categories of transgender persons, mirroring the existing rights afforded to cisgender counterparts.

The definition of ‘woman’ remains unspecified in both the MTP Rules and the MTP Act. Rule 3B of the MTP Rules outlines the ‘categories of women’ eligible for abortion under section 3(2)(b) of the MTP Act but does not explicitly address whether this includes transgender individuals. In cases of ambiguity, the ‘mischief rule’ is applied, akin to the ‘purposive’ interpretation of a law, which seeks to identify the intended remedy for the law’s mischief or the purpose.

The mischief aimed to be addressed by the MTP Act was the liberalisation of abortion provisions for health, humanitarian, and eugenic reasons, as stated in the Statement of Object and Reasons of the MTP Act. Notably, the Act and Rules refrain from specifying ‘woman’ as exclusively referring to biological gender, utilising the term more broadly.

Furthermore, drawing from the NALSA judgment, which acknowledges that transgenders can self-identify as men, women, or third gender, it is arguable that transgenders identifying as women should fall within the purview of the MTP Act. Also, the same judgment emphasises the responsibility of Central and State Governments to ensure proper medical care for transgenders. Given that abortion is an integral aspect of medical care, it can be contended that the government should extend facilities for abortion to transgender individuals.

Additionally, the prohibition against discrimination under section 3(b) of Transgender Persons (Protection of Rights) Act, 2019 explicitly states that no person or establishment is allowed to discriminate against a transgender individual, particularly concerning healthcare services. This includes actions such as denying or discontinuing healthcare services or subjecting transgender individuals to unfair treatment in the realm of healthcare. Moreover, the government is mandated under section 15 of the same Act to address transgender healthcare by reviewing medical curricula for their specific needs and facilitating increased access to hospitals and healthcare institutions.

The way forward

It is imperative for the government to introduce an amendment to the MTP Act and MTP Rules to explicitly incorporate transgender individuals within the scope of these legislations. Drawing inspiration from the recent post-colonial criminal law legislation Bharatiya Nyaya Sanhita , where ‘transgender’ is included under the term ‘gender’ under section 2(10), a parallel approach could be adopted within the MTP Rules and MTP Act. This would entail incorporating transwomen within the definition of ‘women,’ ensuring equitable reproductive rights.

Moreover, adopting such an approach aligns seamlessly with the progressive trajectory of the evolving legal landscape, thereby safeguarding and acknowledging the reproductive autonomy of transgender individuals. By explicitly recognising and protecting their reproductive rights within the framework of the MTP Act and MTP Rules, this proposed amendment reflects a commitment to inclusivity and the principle of equal rights for all. It signifies a pivotal step towards dismantling barriers that may disproportionately affect transgender individuals, affirming their right to make informed choices about their reproductive health. This proactive legal stance not only promotes societal equality but also underscores the government’s commitment to upholding the fundamental rights of every citizen, regardless of gender identity.

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