The LGBTQ community have gone through years of systemic oppression.

The lack of
recognition and representation that the community has suffered because of the taboo
attached to them. Their recognition as the third gender was the first stepping stone in the
process to recognise their rights as a community. In April 2014, the Supreme Court of
India ruled in NALSA vs Union of India that the rights and freedoms of transgender
people in India were protected under the Constitution; in September 2018, the Supreme
Court also decriminalized adult consensual same-sex relationships in the Section 377
judgment review. Both judgments mark an important moment for LGBT rights that not
only reversed a relic of British imperial rule but also ordered that LGBT Indians be
accorded all the protections of their constitution. This was a welcome victory, but it does
not necessarily mean that LGBT people in India are fully free or perceived as equal
among their fellow citizens. It underscores how much work remains to be done in India
and the rest of the world to overturn antiquated and repressive anti-gay laws. In the Naz
Foundation case, the court held that is an instant case of how the right to equality under
Article 14 is to be applied is given under Article 15. Article 15 is a specie to the genus of
Article 14 for the enforcement to right to equality. Article 15 prohibits discrimination on
several enumerated grounds, which include 'sex'. The ambit of the term sex can be
expanded to the concept of sexual orientation. The term has been defined as an
individual's preference in terms of sexual relationship with others - whether homosexual
or heterosexual. The principle behind the prevention of discrimination on the basis of sex
is to prevent behaviour that treats people differently for the reason of not conforming with
generalization concerning "normal" or "natural" gender roles. After the breakthrough in
the nine-judge bench decision on the right to privacy, Justice Puttuswamy said that "a
minuscule fraction of the country's population constitutes lesbians, gays, bisexuals or
transgender" is not a sustainable basis to deny the right to privacy and hence opposes the
decision in Suresh Khaushal vs Naz Foundation Case. Though the recognition of rights of
the transgender community in judgements is a huge step forward to curb the oppression
but the fact that the hierarchy of discrimination is deep. India does not have a
comprehensive anti-discrimination code. While the Constitution prohibits discrimination, that
injunction only applies to the government and its instrumentalities. As a response to this, the
Parliament implemented the Transgender Persons (Protection of Rights) Act, 2019. To this
certain draft rules were added in July 2020. But this law has some serious shortcomings. Here
we discuss some rights guaranteed to a transgender under the constitution and the Act.
 Statute
Section/Articl Headings
e
Article 14 Equality before law The In the NALSA judgement, it
State shall not deny to any violation to Art14. This art
person equality before the protection of laws to everybo
law or the equal protection and female but also includ
of the laws within the protection of laws provided
territory of India community is prone to a lo
Prohibition of prone to sexual assault and
discrimination on grounds orientation or gender identity
of religion, race, caste, sex
or place of birth.
Article 15 Art 15 also provides taking
Prohibition of educationally backward clas
discrimination on grounds mention in the article prohib
of religion, race, caste, sex discrimination against them
Constitution or place of birth categorised as socially and e
some affirmative actions to u
of India Article 16 Equality of opportunity in Article 16 not only prohibits
matters of public but also imposes a duty on th
employment relating to employment and
can make reservations for the
for the transgender communi
Article 19(1) All citizens shall have the The right to freedom of spee
right to freedom of speech their self-identified gender w
and expression or any other form. Freedom
and means such as by way o
values of privacy, self-ident
guaranteed to members of
Constitution of India and the
 Article 21 No person shall be deprived Article 21 protects the digni
of his life or personal etc. Gender, constitutes one
liberty except according to on a person’s identity. Lega
procedure established by dignity and freedom guaran
law gender identity of sexual orie
has a right of self-declaration

ChapterI:Section 2 Preliminary This section defines a numbe

for further reference in the
transgender person as one w
includes trans-men and tran
person having such socio-c
classifies Intersex under the
difference from the norma
characteristics, external gen
Clubbing it under an umbrel
people like high rate of foetic

Chapter II :Section 3 Prohibition against This Section denies and direc

discrimination a) unfair treatment in, ed
b) unfair treatment in em
c) termination from, em
d) unfair treatment in, he
e) unfair treatment with
goods, accommodatio
to the use of the gene
f) unfair treatment with
g) unfair treatment with
occupy any property.
Transgender h) unfair treatment in, th
i) unfair treatment in, G
Persons(Right a transgender person
Though all these rights are
to Protection) provided in the Indian Consti

Act,2019 can lead to undermining the

prohibit access to all the rig
remedies that will be guaran
against discrimination on the
but the mechanism as to how
as well as the draft rules to th

Chapter III: Recognition of identity of In this chapter a person willin

Section 4- 7 transgender persons application for the same and
submitted by the person will
approval that a transgender
Sections 4 to 6 and the dra
Magistrate to reject an applic
mentions the right to appeal i
But what constitutes an appr
identification card remains un
This provision violates the r
right to make intimate decisi
the approval of the District m
Also as under draft rule 4 th
days of application but it also
the jurisdiction of the Distr
certificate. But given the unc
people from the transgender
seems unreasonable.
Also a revised certificate of i
by the Medical Superintend
surgery took place. This me
they have gone through a sur
Chapter 4 Welfare measures by the The Act states that in order to
government facilitate their access to welfa
 (i) review existing w
(ii) ensure welfare sch
discriminatory tow
(iii) take adequate step
(iv) educate transgend
currently not been

The Draft Rules states that th

referred to in sub-section (3)
surveillance centre, separate
years from the notification of
and state government funded
association or body of individ
the definition of establishmen
appropriate government to pr
and public establishments lea
government.

Chapter VII National council for The National Institute of S

transgender persons Empowerment, will act as th
The central government wi
Defence for providing this
inclusive of members from t
is how much percent of the b
Chapter VIII Offences and penalties The bill makes forced labou
and all types of abuses agai
from six months to two year
sexually abused, the punishm
the death penalty. The lesser
and strengthens the idea that

The Act tries to deal with prohibition of discrimination in fields such as Education, Health
and Employment but it fails to recognize and explicitly define the discriminations’ that a
transgender person faces. The Navtej singh Johar has specially recognized while
decriminalising homosexuality that the transgender community face a huge amount of sexual
abuse and often at the hands of law enforcement officials. The Act also fails to guarantee
basic civil rights such as marriage, civil partnership, adoption and property rights as well as
social security and pension, thereby continuing to deprive transgender persons of their
fundamental rights and the constitutional guarantee. Also though the LGBTQIA community
has been declared as socially and economically backward class the Act still does not provide
for a reservation for them also considering their negligible representation at public places.
Furthermore, the basic problem still lies is that the Act provides for transgender persons to
only receive identity certificates recognising them as “transgender”. If they want to identify
themselves as a man or a woman, they would have to undergo sex-reassignment surgery. This
will add several bureaucratic layers that a transgender person will have to navigate and also
snatches away the right of an individual to self-determine their sexual identity.

To bring in clarification and procedural changes the draft rules of the Act have been opened
to public suggestion. This is a welcomed step as the act cannot continue to exist in its current
form as it lays down more questions than it resolves.