DR.

RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY,
LUCKNOW

SEMINAR PAPER

LAW AND MORALITY

TOPIC: The Transgender Persons (Protection of Rights) Bill, 2016

SUBMITTED BY: UNDER THE GUIDANCE OF:

ANANYA SINGH DR. VIKAS BHATI

ROLL NO. 24 ASSISTANT PROFFESSOR (LAW)

SECTION ‘A’ DR. RAM MANOHAR LOHIYA

BA.LLB (Hons.), SEMISTER-IX NATIONAL LAW UNIVERSITY

Signature of student Signature of professor

Acknowledgement

I owe a great many thanks to great many people who helped and supported me in drafting of this
project.

My deepest thanks to our professor Dr. Vikas Bhati the guide of the project for guiding and
correcting various documents of mine with attention and care. He has taken great pain to help me
as and when needed.

I also extend my thanks to the Dean academics Professor C. M. Jariwala for extending his
support. I am also grateful to my parents for their kind co-operation and encouragement. Also , I
am grateful to my friends who helped me out in its development .

ANANYA”
Table of Contents

Introduction ..............................................................................................................4

History of TransgenderCommunity .......................................................................5

Historical Evolution of Transgender Community ................................................6

Mughal Period .......................................................................................................6

British Period ........................................................................................................6

Evolution of transgender legislation ......................................................................7

Current situation for transgender people internationally ...................................8

Discrimination to Transgender People ..................................................................9

Suggestion or Amendments in The Transgender Persons (Protection of

Rights) Bill, 2016 ......................................................................................................9

Domestic Constitutional Analysis & Fundamental Rights of Transgender .....10

Analysis of the bill ..................................................................................................12

Sample Bill ..............................................................................................................14

Conclusion...............................................................................................................15

Bibliography ...........................................................................................................17
Introduction
Transgender community comprises of Hijras, eunuchs, Kothis, Aravanis, Jogappas, Shiv-
Shakthis etc. Eunuchs have existed since 9th century BC. The word has roots in Greek and
means "Keeper of the bed" castrated men were in popular demand to guard women quarters of
royal households. Hinduism, Jainism and Buddhism - and it can be inferred that Vedic culture
recognized three genders. The Vedas (1500 BC - 500 BC) describe individuals as belonging to
one of three separate categories, according to one's nature or prakrti. These are also spelled out in
the Kama Sutra (c. 4th century AD) and elsewhere as pumsprakrtistri-prakrti (female-nature),
and tritiya-prakrti (thirdnature). Various texts suggest that third sex individuals were well known
in pre-modern India, and included male bodied or female-bodied people as well as intersexuals,
and that they can often be recognized from childhood. A third sex is also discussed in ancient
Hindu law, medicine, linguistics and astrology.

The foundational work of Hindu law, the Manu Smriti (200 BC - 200 AD) explains the
biological origins of the three sexes: "A male child is produced by a greater quantity of male
seed, a female child by the prevalence of the female; if both are equal, a third-sex child or boy
and girl twins are produced; if either are weak or deficient in quantity, a failure of conception
results. Indian linguist Patanjali's work on Sanskrit grammar, the Mahabhaya (200 BC), states
that Sanskrit's three grammatical genders are derived from three natural genders.

The earliest Tamil grammar, the Tolkappiyam (3rd century BC) also refers to hermaphrodites as
a third "neuter" gender (in addition to a feminine category of unmasculine males). In Vedic
astrology, the nine planets are each assigned to oneof the three genders; the third gender, tritiya-
prakrti, is associated with Mercury, Saturn and (in particular) Ketu. In the Puranas, there are also
references to three kinds of devas of music and dance: apsaras (female), gandharvas (male) and
kinnars (neuter).

The terms Transgender (T.G.) in contemporary usage, has become an umbrella term that is used
to describe a wide range of identities and experiences, including but not limited to transexual
people, who strongly identify with the gender opposite to their biological sex, male and female. 1

There are four types of people coming under the umbrella term they are—

1
Right to Live with Dignity - A Basic Human Right (With Special Reference to Gender Based Violence and
Discrimination), 24 ALJ (2016-17) 32 at page 50
(1) Persons whose gender identity, gender expression or behavior does not conform to their
biological sex.

(2) T.G. may also include persons who do not identify with their sex assigned at birth. It includes
Hijras/Eunuehs, and they do not identify as either male or female. Hijras are no men by virtue of
anatomy appearance and psychologically, they are not women, though they are like women with
no female reproduction since Hijras do not have reproduction capacities as either men or women,
they are neither men nor women. They claim to be institutional “third gender”. Among Hijras,
there are emasculated (castrated, nirvana) men, non-emasculated men and intersexed persons
(hermaphrodites).

(3) T.G. also includes persons who intend to undergo sex reassignment surgery (SRS), or have
undergone SRS, to align their biological sex with their gender identity in order to become male
or female. They are generally called transsexual persons.

(4) There are persons who like to cross-dress in the clothing of the opposite gender, that is,
transvestites.

History of TransgenderCommunity
Although transsexuality has long held a place in popular culture, the struggle for equality in
society continues. Only a handful of Canadian provinces explicitly include gender identity under
their human rights codes and it's, so far, not specifically mentioned in federal legislation.2 The
story of Transsexuality is a long history of changing societies and perspectives measured against
the “trans person’’ individual position within those societies.3 But it is only in recent decades that
the term “transsexual” has even come into being, and only even more recently that
transsexualism has emerged as a field of scholarly inquiry. Since about the middle of the
twentieth century, transsexualism has achieved a unique status as a result of the official “medical
response” to the transsexual identity.

2
Love, Heather. “Transgender Fiction and Politics.” The Cambridge Companion to Gay and Lesbian Writing, edited
by Hugh Stevens, Cambridge University Press, Cambridge, 2010, pp. 148–164. Cambridge Companions to
Literature.
3
Graham, Philip. “Transgender and Sexuality.” Men and Sex: A Sexual Script Approach, Cambridge University
Press, Cambridge, 2017, pp. 167–176.
In ancient India, Hijra are a caste of third-gender, or transgender group who live a feminine role.
Hijra may be born male or intersex, and some may have been born female.4 Hijras have a
recorded history in the Indian subcontinent from antiquity onwards as suggested by the Kama
Sutra period.

Historical Evolution of Transgender Community

Mughal Period
Hijras played a famous role in the royal courts of the Islamic world, particularly in the
Ottoman empires and the Mughal rule in the Medieval India. They rose to well-known
positions as political advisors, administrators, generals as well as guardians of the
harems. Hijras were consider clever, trustworthy and fiercely loyal and had free access to
all spaces and sections of population, thereby playing a crucial role in the politics of
empire building in the Mughal era. The Hijras also occupied high positions in the Islamic
religious institutions, especially in guarding the holy places of Mecca and Medina the
person of trust, they were able to influence state decisions and also received large amount
of money to have been closest to kings and queens. Thus hijra frequently state the role of
their status in that period.

British Period
In the beginning of the British period in Indian subcontinent hijra used to accept
protections and benefits by some Indian states through entry into the hijra community.
Furthermore, the benefits incorporated the provision of land, rights of food and smaller
amount of money from agricultural households in exact area which were ultimately
removed through British legislation as because the land was not inherited through blood
relations.5

4
"Gay and Lesbian Vaishnava Association, Inc". Galva108.org. Archived from the original on 2018-10-17.
Retrieved 2018-10-18.
5
M. Michelraj, Historical Evolution of Transgender Community in India, Asian Review of Social Sciences ISSN:
2249-6319 Vol. 4 No. 1, 2015, pp. 17-19
Evolution of transgender legislation
In February 2014, the Supreme Court passed a landmark judgement, paving the way for
enshrining the rights of transgenders in law. The apex court deemed that individuals had the right
to the self-identification of their sexual orientation. It ruled that the fundamental rights granted
by the Constitution are equally applicable to transgenders who constitute the 'third gender'.

The judgement also called for affirmative action in education, primary health care, and that
transgenders be identified as beneficiaries of social welfare schemes. The blueprint for
transgender rights legislation draws from the court's directives.

The first effort at framing legislation for the same was made in December 2014 by Tiruchi Siva,
a DravidaMunnetraKazhagam (DMK) Rajya Sabha MP. The Rights of Transgender Persons Bill,
2014, was introduced as a Private Member’s Bill in the Rajya Sabha by Mr. Siva. It was
unanimously passed in the Upper House but was never debated in the Lok Sabha.

The Bill passed in the Rajya Sabha had many progressive clauses including the creation of
institutions like the national and State commissions for transgenders, as well as transgender
rights courts. These remedial measures to prevent sexual discrimination were done away with
when the government drafted The Rights of Transgender Persons Bill, 2015.

Despite these notable omissions, the skeletal framework of the draft Bill borrowed heavily from
its predecessor. After consultation with legal experts and transgender activists, the 2015 draft
Bill was sent to the Law Ministry. It was introduced in the Lok Sabha in August 2016 after
considerable revision to the 2015 draft.6

Now, the 2016 bill is again introduced by Ministry of Social Justice and Empowerment in Lok
Sabha and is expected to be passed by the end of this session.

6
All you need to know about the Transgender Persons Bill, 2016 by Rohan Abram, The Hindu,
https://www.thehindu.com/news/national/all-you-need-to-know-about-the-transgender-persons-bill-
2016/article21226710.ece
Current situation for transgender people internationally
Identification is required for most activities in daily life. These include enrolling at school,
applying for a welfare benefit or a pension, finding a job, opening a bank account, renting
accommodation, accessing health services, voting, and travelling across a border. As a result, the
absence of legal gender recognition potentially impinges on many other rights. This can be
because transgender people are exposed to discrimination and violence, suspected of fraud, or
denied access to legitimate entitlements simply because of their sex or gender identity.

The vast majority of transgender people around the world cannot obtain official documents under
their appropriate name and sex, to match their gender identity. 7 In many parts of the world,
including most of Asia and Africa and in all Pacific island countries, the lack of legislation or
clear judicial or administrative procedures mean that transgender people are legally unable to
change sex details on official documents. In other countries where legal gender recognition is
possible, many transgender people are explicitly excluded because they are married or have
children. If they want to change their gender under law, they are often required to get divorced
first, thereby having to choose between having their marriage or their affirmed gender
recognized and protected under law.

The minority of transgender people internationally who do have access to legal gender
recognition still typically face significant challenges. In all but a handful of countries they must
obtain a diagnosis of Gender Identity Disorder (GID) or gender dysphoria and/or evidence of
having undergonea medical transition. Most countries stipulate this entails “gender reassignment
surgery” or sterilization. Yet many transgender people do not wish to have such medical
treatment, or cannot do so for medical, financial or other reasons. Making medical steps a
prerequisite for legal gender recognition also violates fundamental human rights. At the same
time, denying transgender people access to gender affirming health services undermines their
right to health.

7
Lauren R. Deitrich, Transgender and the Judiciary: An Argument to Extend Batson Challenges to Transgender
Individuals, 50 Val. U. L. Rev. 719 (2016)
Discrimination to Transgender People
Gender identity discrimination in health care settings occurs when you are denied equal access to
health care and services, and/or you are subjected to a hostile or insensitive environment because
you are, or are perceived to be, transgender or gender non-conforming. Such discrimination may
be compounded with discrimination based on other characteristics (i.e. race, sex, sexual
orientation, disability, etc.). Some examples of gender identity-related health care discrimination
are:

1). Being denied complete or partial health insurance coverage; and

2). Inappropriate treatment from health care providers, facilities, or community-based

organizations.

“Seldom, our society realizes or cares to realize the trauma, agony and pain which the members
of Transgender community undergo, nor appreciates the innate feelings of the members of the
Transgender community, especially of those whose mind and body disown their biological sex.
Our society often ridicules and abuses the Transgender community and in public places like
railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are sidelined
and treated as untouchables, forgetting the fact that the moral failure lies in the society’s
unwillingness to contain or embrace different gender identities and expressions, a mindset which
we have to change.8”

Suggestion or Amendments in The Transgender Persons (Protection of

Rights) Bill, 2016
 Need to make sex change surgery a legally exercisable right
 Definition of discrimination should be added in section 2
 Definition of gender identity should be added in section 2
 Reservation for transgender community
 Mechanism to ensure access to justice, including relevant remedies, redress and
compensation, for transgender people who have undergone forced sterilization or
surgery9

8
NALSA vs Union of India, (2014) 5 SCC 438.
9
https://transactivists.org/gender-is-not-an-illness/
  Steps should be taken to repeal any medical classifications on gender diversity in children
 An additional chapter shall be inserted for undertaking training and awareness-raising
for the judiciary, police and other law enforcement officials on gender diversity and the
human rights of trans and gender non-conforming people.

Domestic Constitutional Analysis & Fundamental Rights of Transgender

The exhaustive international and comparative background informed the Court's domestic
constitutional analysis, particularly with respect to the fundamental rights enunciated in Part III
of the Constitution. The Court held that discrimination against transgender persons has the effect
of nullifying and transposing Article 14's guarantees to equality before the law and equal
protection of the laws. It's analysis focused on the protective duties of the government in the
most literal sense, observing that non-recognition of the identity of transgender persons leaves
them particularly vulnerable to harassment, violence, and sexual assault with impunity.
According to the Court, the application of the word "person" in Article 14 is not restricted to
only male and female; transgender persons who are neither male nor female are indeed persons,
and hence entitled to full legal protection of laws in all spheres of State activity, including
employment, healthcare, education, as well as civil rights and citizenship rights. 10

The Court then turned to the specific constitutional prohibitions of sex discrimination in Articles
15 and 16. Article 15 prohibits discrimination by the state and by private actors in places of
public accommodation, while Article 16 mandates equal treatment and prohibits discrimination
in public employment and appointments. The Court centered its analysis on the prevailing
juridical assumption that law should target discrimination based on sex (i.e. the chromosomal or
gonadal sex assigned at birth) rather than gender (i.e. the presence and expression of masculine
and feminine characteristics), the result of which is the denial of fundamental human rights to the
transgender community. It rejects such a myopic construction of Articles 15 and 16, observing
that "both gender and biological attributes constitute distinct components of sex." Therefore, the
Court held, the constitutional prohibition of sex discrimination forbids "treat[ing] people
differently, for the reason of not being in conformity with stereotypical generalizations of binary
genders." "Gender attributes," the Court went on, "include one's self image, the deep

10
National Legal Services Authority v. Union of India, (2014) 5 SCC 445.
psychological or emotional sense of sexual identity and character. The discrimination on the
ground of 'sex' under Article 15 and 16, therefore, includes discrimination on the ground of
gender identity" Also provided for in both these provisions is the requirement placed on the
Central and State governments to take affirmative action measures for the advancement of any
socially and educationally backwards classes of citizens. According to the Court, "Article 15(2)
to (4) and Articles 16(4) read with the Directive Principles of State Policy and various
international instruments to which India is a party, call for social equality, which the transgender
community could realize, only if facilities and opportunities are extended to them so that they
can also live with dignity and equal status with other genders." To that end, the Court declares
that transgender persons, as "socially and educationally backward classes of citizens," are to be
given legal entitlement to reservations in educational institutions and public appointments.11

One of the Court's more unique doctrinal innovations is found in its declaration that Article
19(1)(a), which guarantees "freedom of speech and expression," includes "one's right to
expression of his self-identified gender," whether "expressed through dress, words, action or
behavior or any other form." It noted that the Supreme Court of the states of Illinois and
Massachusetts both struck down municipal laws prohibiting crossdressing on the grounds that
they were fundamentally inconsistent with the values of privacy, self-identity, autonomy and
personal integrity that the Constitution was designed to protect. Gender expression, the U.S.
Courts held, is not merely a personal preference but a necessary symbol of identity.12 Because
gender identity lies at the core of one's personal identity, the Supreme Court reasoned, gender
expression and presentation therefore must be protected under Article 19(1)(a) of the
Constitution of India. For a critical function of the constitutional freedom of expression was the
protection of the "values of privacy, self-identity, autonomy and personal integrity," which the
Court held "are fundamental rights guaranteed to members of the transgender community under
Article 19(1)(a).

The Court then finally turned to Article 21, "the heart and soul of the Constitution," which
speaks of the rights to life and personal liberty. Over time, the scope of Article 21 has been
expanded to include a right to dignity, personal autonomy, and privacy. The Court makes

11
Id
12
Spence Jones, Towards a Universal Construction of Transgender Rights: Harmonizing Doctrinal and Dialogic
Strategies in Indian Jurisprudence, 4 Indon. J. Int'l & Comp. L. 91 (2017)
reference to Francis Coralie Mullin v. Administrator, Union Territory of Delhi, in which the
Supreme Court held that "the right to dignity forms an essential part of our constitutional culture
which seeks to ensure the full K' development and evolution of persons and includes 'expressing
oneself in diverse forms, freely moving about and mixing and comingling with fellow human
being."' In Anuj Garg v. Hotel Association of India, the Court notes that it held that personal
autonomy imposes upon the state not only a negative duty to not interfere with the life or liberty
of an C o individual without the sanction of law, but also a positive obligation to take steps for
ensuring that citizens are able to enjoy a dignified life. From this, the Court concludes that "Self-
determination of gender" and legal recognition thereof "lies at the heart of the fundamental right
to dignity" and is "an integral part of personal autonomy and self expression and falls within the
realm of personal liberty guaranteed under Article 21 of the Constitution of India.”13

Analysis of the bill

Recently, the National Human Rights Commission (NHRC) conducted the first-ever nationwide
survey of the transgender community in India and found that 92% of the people belonging to the
community are subjected to economic exclusion. It is profoundly absurd that we think of
ourselves as inhabiting a “modern” world, and yet there exists a sizeable community of people
who are structurally ostracised and denied the fundamental right to a livelihood. Often, they have
to either resort to—or are forced into—begging or sex work since they remain socially
circumscribed from other forms of employment. The primary crisis faced by the transgender
community is a denial of sexual citizenship. According to the NHRC data, 99% of the
transgender community in India have faced social rejection. Transgender persons cannot inhabit
public spaces and command the same respect that a heterosexual cis-man would receive from his
fellow citizens because their bodies themselves are stigmatised presences. The transgender
community occupies a very specific intersection among marginalised communities that makes
them uniquely vulnerable to sexual violence and medical neglect. Largely, they are estranged
from their families, which removes them from one of the most primary forms of social
legitimacy. As per the NHRC survey, only 2% of transgender persons in India live with their
families.

13
Spence Jones, Towards a Universal Construction of Transgender Rights: Harmonizing Doctrinal and Dialogic
Strategies in Indian Jurisprudence, 4 Indon. J. Int'l & Comp. L. 91 (2017)
The Transgender Persons (Protection of Rights) Bill, 2014 was an attempt to correct this, and
provide the transgender community with opportunities. The bill, which was being debated in
Parliament in August, has gone through several revisions. However, as it stands now, the bill has
neglected to incorporate two crucial recommendations made by a standing committee to review
its provisions in 2017. The first recommendation made a case for reservation for transgender
persons in educational institutions and for jobs. This sort of affirmative action can ensure that the
problem of economic exclusion is addressed.

The second recommendation argued for a legal recognition of the rights of transgender persons
to marriage and partnerships, which is difficult in a country that largely recognises only two
genders. Indians have stubbornly stuck to the gender binary as a basis for defining their
sociocultural reality. The politics of exclusion that the transgender community suffers is rooted
in a hegemony defined by the gender binary. In fact, one of the primary problems that the
transgender community had with the first draft of the bill was how it defined a transgender
person: as neither a man nor a woman. Such a definition is not only derogatory, but also betrays
an inability to think outside of the gender binary by defining a transgender person in negative
terms, as someone who is not of an established and accepted gender. Fortunately, the latest draft
of the bill corrects this satisfactorily and defines a transgender person as “a person whose gender
does not match with the gender assigned to that person at birth.”

There are already several laws that are used to arbitrarily persecute transgender persons. The
anti-begging law is one such. Instituting reservations to ensure financial security for transgender
persons can be one way of countering this. Section 377 of the Indian Penal Code, which prohibits
“unnatural sex acts,” is also frequently used to target transgender persons. As long as Section
377 remains a criminal offence, the transgender community will be vulnerable to arrests.
Consequently, they require a specific legal provision that safeguards their sexual rights and
identity. In this regard, it is vital that the second recommendation to ensure legal recognition of
partnerships and marriage be included in the bill. The bill also fails to define in specific terms,
what counts as discrimination against a transgender person. So, although the bill has been
regarded as progressive, it falls short of addressing the central problem of extending sexual
citizenship to transgender persons.
It has been suggested that any central legislation made to safeguard the rights of the transgender
community in India ought to follow Tamil Nadu’s example. In 2004, Tamil Nadu established a
welfare board specifically for transgender persons. The state offered basic affirmative measures
like concessional housing and vocational training centres, in addition to which free sex
realignment surgery in specific government hospitals was also offered. In August 2018, Kerala
became the second Indian state to offer ₹2 lakh to transgender persons for sex realignment
surgeries. This is the kind of support that the transgender community in India urgently needs
from the government to be able to adequately access healthcare, and overcome the exploitation
and abuse they face at the hands of dubious medical professionals.

Overall, the bill should be provisioned in such a manner that it is able to integrate transgender
persons seamlessly into the fabric of everyday public life. The legal endeavour should be to
support the process of normalising the presence of transgender persons in public spaces, at
workplaces, and in normative domestic spaces.

Sample Bill
1) Section 2 Transgender discrimination occurs when there is a rule or requirement that
disadvantages people who are transgender more than people who are not transgender —
unless it can be shown that the rule or requirement is ‘reasonable in all the
circumstances’.

Discrimination can be of three types:

i. Sexual orientation discrimination

ii. Gender identity discrimination
iii. Intersex status discrimination

Explanation- 1 Sexual orientation discrimination used in section 2(i) means when a person is
treated less favorably than another person in a similar situation because that person has a
sexual orientation towards:

 persons of the same sex, or

 persons of a different sex, or

 persons of the same sex and persons of a different sex.

 Explanation- 2 Gender identity discrimination used in section 2 (ii) means when a person is
treated less favorably than another person in a similar situation because of that person’s
gender-related identity, appearance, mannerisms or other gender-related characteristics of the
person. It does not matter what sex a person was assigned at birth or whether the person has
undergone any medical intervention.

Explanation- 3 Intersex status discrimination used in section 2 (iii) means when a person is
treated less favourably than another person in a similar situation because that person has
physical, hormonal or genetic features that are:

 neither wholly female nor wholly male

 a combination of female and male, or

 Neither female nor male.

2) Proviso to section 14- “the transgender community shall be given 2% horizontal

reservation in the educational institutions run or maintained by the government”
3) Proviso to section 19- “if the harassment to the transgender person is found to be of a
serious nature then the adjudicating officer has a right in rarest of rare case to increase the
punishment to simple imprisonment of five years with fine ”

Conclusion
The current Bill completely eliminates the option of identification as either male or female. On
top of it, the Bill reinforces injurious stereotypes about transgender persons as being part male
and part female.

The basis for this provision comes from the report of an expert committee constituted by the
social justice ministry in 2013. The issue here is that providing for such an onerous procedure
stands in violation of the self-identification principle. It is a mechanism that has been strongly
contested in various civil society suggestions submitted to the ministry.

Transgender groups have argued that such a certificate could be used for the specific process of
channeling entitlement to individuals. However, to make it the very basis for otherwise
recognising transgender identity in any given document again strikes at the heart of NALSA.
Moving to the question of recognition of discrimination, the Bill once again falls short. The
single-section chapter on discrimination forbids discriminatory treatment across a number of
spaces, including educational institutions, healthcare services and employment. What it fails to
do, however, is provide a definition of discrimination to begin with.

The former draft of the Bill did in fact have such a definition. It understood discrimination as a
distinction, exclusion or restriction on the basis of gender identity, which had the purpose or
effect of impairing or nullifying the enjoyment of fundamental human rights and freedoms on an
equal basis with others, and also included denial of reasonable accommodation.

Such an understanding of discrimination would provide a guide to effectively interpreting the

duties against discrimination, which otherwise stand as hollow admonishments.

Rendering them further hollow is the truly baffling lack of enforcement provisions in this Bill.
This is a problem that has plagued earlier iterations of the law as well and even constant
advocacy from civil society on this front seems to have left no mark on the government.

There is simply no punitive mechanism in place as far as potential violation of the duty against
discrimination is concerned. There do, however, exist a number of offences correlated with
penalties that don’t represent community needs. For instance, the Bill criminalises enticing a
transgender person to indulge in the act of begging.

This not only ignores the ground reality that begging is one of the few income generating options
available to a large number of transgender persons, but provides another avenue for the misuse of
the law. There have been a number of instances where transgender individuals have been
disproportionately targeted under the general law related to beggary.

Though imperfect, the Supreme Court's decision in NALSA exemplifies the best of the Indian
constitutional tradition. The Court effectively deployed the doctrinal tools at its disposal to
confront a pressing social ill with sensitivity and creativity. Specifically, the justiciablizing of the
economic and social rights found in Part IV of the Constitution allowed the Court to resurrect
them as enforceable fundamental rights, paving the way for recognition of a third gender in the
Indian legal landscape. Furthermore, the Supreme Court's engine of doctrinal innovation
centered on the usage of international and comparative law as mechanisms for informing
constitutional interpretation, as well as facilitating and enabling constitutional choice. In doing so
it harmonized universal values with a deep national commitment to an inclusive society.
Moreover, it adds to a robust rights jurisprudence that demonstrates the capacity of human rights
law and litigation to be used as an instrument for development. This phenomenon has been made
possible, in part, by a predilection for judicial activism within the judiciary that has effectively
brought prevailing conceptual frameworks of development in law in accordance with global
human rights standards. The juristic and dialogical strategies on which the Court's decision rests,
then, may be used as a model for other jurisdictions to follow when constructing rights regimes
for their own vulnerable populations.

Bibliography
 Sexual orientation, gender identity and intersex status discrimination- Australian Human
Rights commission, https://www.humanrights.gov.au/employers/good-practice-good-
business-factsheets/sexual-orientation-gender-identity-and-intersex
 The Transgender Persons (Protection of Rights) Bill, 2016;
http://www.prsindia.org/uploads/media/Transgender/Transgender%20Persons%20Bill,%
202016.pdf
 Sexual Orientation, Gender Identity and Justice: AComparative Law Casebook (2011);
https://heinonline.org/HOL/LuceneSearch?terms=transgender&collection=all&searchtyp
e=advanced&typea=text&tabfrom=&submit=Go&all=true
 Katie Koch; Richard Bales, Transgender EmploymentDiscrimination, 17 UCLA
Women's L.J. 243 (2008)
 Workplace Discrimination Laws and Policies, HUMAN RIGHTS
CAMPAIGN,http://www.hrc.org/resources/entry/Workplace-Discrimination-Policies-
Laws-and-Legislation
 Jennifer Levi, Protections for Transgender Employees,30 Hum. Rts. 12 (2003)
 Lauren R. Deitrich, Transgender and the Judiciary: An Argument to Extend Batson
Challenges to TransgenderIndividuals, 50 Val. U. L. Rev. 719 (2016)
 Spence Jones, Towards a Universal Construction of Transgender Rights: Harmonizing
Doctrinal and Dialogic Strategies in Indian Jurisprudence, 4 Indon. J. Int'l & Comp. L. 91
(2017)