INTRODUCTION
Gender justice embodies the principle of fairness and equality across all gender identities, ensuring that individuals are not discriminated against based on socially constructed roles or biological characteristics. Traditionally, legal and social systems have operated within a rigid binary understanding of gender, it was male and female thereby excluding those whose identities fall outside this framework. In recent years, however, there has been a growing recognition that gender exists along a spectrum, necessitating a more inclusive approach to justice.
A basic distinction must be drawn between sex, gender, and transgender identity. Sex refers to biological attributes such as chromosomes, hormones, and reproductive anatomy assigned at birth. Whereas gender is a social and psychological construct that encompasses identity, roles, and expression. Transgender persons are those whose gender identity does not align with the sex assigned to them at birth, including trans men, trans women, and non-binary individuals.
India’s engagement with gender diversity is not new. Historically, communities such as Hijras have occupied recognized, though often marginalized, roles in society. However, colonial-era laws imposed restrictive norms that criminalized non-conforming identities. In the post-independence period, significant legal developments have sought to correct this marginalization. The Supreme Court’s decision in NALSA v. Union of India marked a transformative moment by recognizing transgender persons as a “third gender” and affirming their fundamental rights. This was followed by the enactment of the Transgender Persons (Protection of Rights) Act, 2019, which aimed to prohibit discrimination and promote welfare measures, though it has been subject to critique for its implementation and scope.
Despite these legal advancements, transgender individuals in India continue to face systemic barriers. Social stigma, family rejection, limited access to education and healthcare, and discrimination in employment remain widespread. Many transgender persons are compelled into marginalised livelihoods due to exclusion from formal opportunities, and they frequently encounter harassment and violence in public and private spaces.
In this context, the pursuit of gender justice extends beyond formal legal recognition. It requires a broader process of social transformation that challenges entrenched prejudices, ensures substantive equality, and affirms the dignity and autonomy of transgender individuals. Only through such an inclusive approach can the promise of constitutional rights be meaningfully realized for all.
HISTORICAL BACKGROUND OF TRANSGENDER IN INDIA
The presence and recognition of transgender identities in India is deeply rooted in its cultural, religious, and social history. However, their status has evolved significantly across different historical periods ranging from relative acceptance in ancient and medieval times to criminalization during colonial rule and gradual legal recognition in the post-independence era.
(a) Ancient Period
In ancient India, the understanding of gender was not confined to a rigid binary framework. Religious texts and philosophical traditions acknowledged the existence of diverse gender identities. The concept of tritiya prakriti (third nature), found in ancient scriptures, referred to individuals who did not conform to conventional male or female roles, indicating an early recognition of gender plurality.
Epic literature further reflects this inclusivity. In the Mahabharata, figures such as Shikhandi, who was born female but lived as a male, and Arjuna, who assumed the identity of Brihannala, challenge traditional gender norms. Additionally, various Puranic traditions depict deities embodying both masculine and feminine principles, symbolizing the fluidity of gender.
Transgender individuals were often associated with spiritual or ritualistic roles in society. While full equality may not have existed, the absence of criminalization and the presence of cultural representation suggest a comparatively accommodative approach toward gender diversity.1
(b) Medieval Period
During the medieval period, particularly under the Delhi Sultanate and Mughal rule, transgender persons commonly referred to as Hijras held positions of social and political significance. They were often employed in royal courts and entrusted with responsibilities such as guarding harems, managing confidential affairs, and serving as advisors. Their perceived loyalty and detachment from traditional kinship structures contributed to their prominence in administrative systems.
Unlike the later colonial era, transgender individuals were not systematically criminalized during this period. Instead, their roles were institutionalized within court culture, and they enjoyed a certain degree of recognition and patronage, including grants of land and wealth. However, their status remained conditional and hierarchical, as acceptance was often tied to their utility within elite structures.2
(c) Colonial (Modern) Period
The colonial period marked a significant decline in the status of transgender persons in India. British colonial rule introduced Victorian moral standards that stigmatized non-binary identities and gender expressions. The Criminal Tribes Act, 1871, specifically targeted “eunuchs,” subjecting them to registration, surveillance, and restrictions, thereby institutionalizing discrimination.
Furthermore, Section 377 of the Indian Penal Code criminalized “unnatural offences,” reinforcing the marginalization of gender and sexual minorities. These legal measures disrupted traditional social roles and contributed to the perception of transgender individuals as deviant or criminal. The colonial legal framework entrenched stigma and exclusion, the effects of which continue to influence societal attitudes even today.3
LEGAL RECOGNITION TO THIRD GENDER
The legal recognition of transgender persons in India has primarily evolved through judicial intervention, followed by constitutional interpretation and legislative action.
A landmark development in this regard was the Supreme Court’s judgment in NALSA v. Union of India, wherein the Court recognized transgender persons as a “third gender” and affirmed their right to self-identification. The Court held that gender identity is an essential component of personal autonomy, dignity, and freedom of expression. It further directed the State to treat transgender persons as socially and educationally backward classes and to extend reservations and welfare measures to ensure their inclusion.
The judgment was grounded in the broader constitutional mandate of equality and non-discrimination. The Court interpreted Articles 14, 15, 16, 19, and 21 of the Constitution to include transgender persons within their ambit, emphasizing that fundamental rights are not limited to binary gender categories. The recognition of gender identity was thus linked to the right to life, dignity, and privacy, reinforcing the principle that the Constitution protects individual identity against arbitrary state interference.
In furtherance of these principles, Parliament enacted the Transgender Persons (Protection of Rights) Act, 2019. The Act seeks to prohibit discrimination against transgender persons in areas such as education, employment, healthcare, housing, and access to public services. It also provides for the establishment of welfare schemes, rehabilitation measures, and the creation of a National Council for Transgender Persons.
The Transgender Persons (Protection of Rights) Act, 2019, while a significant step toward legal recognition, suffers from several substantive and procedural shortcomings, which are further intensified by developments under the 2026 amendment framework. A primary criticism of the 2019 Act lies in its departure from the principle of self-identification affirmed in NALSA case as it requires transgender persons to obtain a certificate of identity from a District Magistrate, thereby subjecting personal identity to bureaucratic scrutiny. The Act also fails to provide clear provisions for reservations in education and employment, offers limited and non-enforceable healthcare guarantees, and prescribes comparatively weaker penalties for offences, raising concerns about unequal protection under the law.
These concerns are significantly exacerbated by the Transgender Persons (Protection of Rights) Amendment Act 2026, which has been widely criticized as a regression from a rights-based framework. The amendment was introduced and passed with minimal stakeholder consultation, including the absence of meaningful engagement with bodies such as the National Council for Transgender Persons, prompting resignations and widespread opposition from activists and legal experts. Importantly, the amendment replaces the principle of self-identification with a mandatory medical certification process, requiring verification by a medical board before the issuance of identity certificates, thereby directly contradicting the constitutional mandate laid down in NALSA4. Furthermore, the amendment significantly narrows the definition of “transgender,” excluding several gender-diverse identities such as trans men, trans women, and genderqueer persons, leading to concerns of legal erasure.
Additional provisions, such as mandatory reporting of gender-affirming procedures and increased bureaucratic oversight, raise serious concerns regarding privacy, autonomy, and state surveillance. Critics argue that the amendment shifts the legal framework from protection to regulation, prioritizing verification and control over the recognition of identity. The cumulative effect of these changes has been described as a setback to the dignity and fundamental rights of transgender persons, undermining the progressive foundation laid by judicial developments. Consequently, both the 2019 Act and its subsequent amendment reveal critical gaps in achieving substantive equality, highlighting the urgent need for a more inclusive, rights-oriented, and constitutionally consistent legal framework.
A comparative perspective highlights alternative approaches. In Argentina, the Gender Identity Law, 2012 allows individuals to change their legal gender based solely on self-identification, without requiring medical procedures, judicial approval, or psychiatric diagnosis.5 This law has been widely recognized as one of the most progressive frameworks, prioritizing autonomy and access to healthcare.
Similarly, Malta has adopted a self-determination model through its gender identity legislation, ensuring legal recognition based on individual declaration and providing strong safeguards for dignity and privacy.6
In contrast, the United States follows a decentralized legal approach, where transgender rights vary across states. While certain protections exist under federal anti-discrimination law, access to legal recognition, healthcare, and other rights remains inconsistent, reflecting a fragmented legal landscape.7
Thus, while India has made significant progress in recognizing transgender rights, the comparative framework demonstrates that stronger emphasis on self-identification, autonomy, and effective implementation is essential to achieving substantive equality.
SOCIO-LEGAL CHALLENGES FACED BY TRANSGENDER
Despite progressive legal recognition, transgender persons in India continue to face deeply entrenched socio-legal challenges that affect them across all stages of life. These challenges begin in childhood and persist into old age, reflecting a pattern of systemic exclusion that is both social and legal in nature.
From an early age, children who exhibit gender non-conforming behaviour are often subjected to stigma, misgendering, bullying, and abuse within families and educational institutions. Many faces rejection or lack of acceptance from parents, leading to emotional distress, instability, and, in several cases, expulsion from their homes. Discrimination in schools and unsafe learning environments contribute to high dropout rates, severely limiting access to education and future opportunities.
As transgender individuals move into adolescence and adulthood, these challenges intensify. Family rejection frequently results in homelessness and economic vulnerability, forcing many to rely on informal means of livelihood such as begging or sex work.8 Social stigma continues to restrict access to housing, employment, and public spaces, while workplace discrimination and the absence of inclusive policies often result in financial insecurity. Transgender persons are also frequently subjected to harassment, violence, and exclusion in both private and public spheres, further marginalizing them within society.
Access to healthcare remains another significant barrier. Transgender individuals often face high costs, lack of trained medical professionals, and fear of mistreatment or discrimination within healthcare systems. This discourages many from seeking necessary medical care, including gender-affirming treatment and mental health support.9
Although the Supreme Court in NALSA case recognized the right to self-identification and affirmed constitutional protections, the gap between legal recognition and lived reality remains substantial.10 The Transgender Persons (Protection of Rights) Act, 2019 prohibits discrimination in areas such as education, employment, and healthcare; however, its implementation has been inconsistent and enforcement mechanisms remain weak.11 Legal processes, including obtaining identity certificates and changing names and gender markers on official documents, are often complex, inaccessible, and intrusive, undermining the autonomy and dignity of transgender persons.
Recent legal developments have further intensified these challenges. Debates surrounding the amendments to transgender law in 2026, indicate a shift from a rights-based framework toward increased state control. One of the most significant concerns is the rollback of the right to self-identification, replacing it with a medicalised and verification-based system requiring approval from authorities or medical boards. This shift undermines personal autonomy and raises serious constitutional concerns relating to dignity and privacy, effectively placing gender identity under state scrutiny rather than individual choice.
Additionally, the narrowing of the legal definition of “transgender” risks excluding several genders-diverse identities, including trans men, trans women, and non-binary persons who may not fit within rigidly defined categories. Such exclusion results in what scholars describe as “legal erasure,” where individuals are denied recognition and consequently deprived of legal protections and welfare benefits.12
The introduction of increased bureaucratic control and surveillance mechanisms—such as mandatory reporting of gender-affirming procedures and requirements for revised certification—further raises concerns about privacy violations and institutional overreach. These measures not only intrude upon deeply personal aspects of identity but may also discourage individuals from accessing healthcare due to fear of stigma or legal consequences.13
Moreover, critics argue that the evolving legal framework adopts a regulatory and, at times, criminalisation-oriented approach, focusing more on controlling transgender identities than protecting them. While certain provisions introduce penalties, they fail to adequately address the widespread violence and discrimination faced by transgender persons, reflecting an imbalance in legal priorities.14
Access to justice also remains limited, as transgender individuals frequently encounter insensitivity and discrimination from law enforcement authorities, resulting in underreporting of crimes and inadequate legal protection.15 These challenges persist throughout life, including difficulties in securing employment, accessing welfare schemes, and claiming rights related to housing, inheritance, and social security.
The cumulative impact of these socio-legal barriers has serious implications for mental health. Transgender individuals experience disproportionately high rates of anxiety, depression, and suicidal ideation due to sustained discrimination and social exclusion, as highlighted by international organizations such as the World Health Organization and the United Nations. Furthermore, many face difficulties in forming safe and accepting personal relationships, while limited or stereotypical representation in media continues to reinforce societal prejudice and misunderstanding.
In old age, these issues are compounded by the absence of family support systems, financial insecurity, and lack of access to adequate healthcare and institutional care. Many elderly transgender persons are left isolated and without social protection, reflecting the cumulative effect of lifelong marginalization. While supportive environments and inclusive policies have the potential to significantly improve the quality of life for transgender individuals, their absence continues to perpetuate inequality and exclusion.
SUGGESTIONS
Improving the lives of transgender individuals requires an integrated approach across legal, educational, and healthcare systems, guided by the principles of dignity, equality, and self-identification established in the NALSA Case and supported by the Transgender Persons (Protection of Rights) Act, 2019. At the legal level, the foundation should be a self-identification-based system with minimal procedural barriers, such as allowing gender recognition through a simple affidavit rather than invasive medical verification. At the same time, reasonable safeguards like legal penalties for fraudulent claims and context-specific guidelines (in areas like sports or prisons) can help prevent misuse without infringing on fundamental rights. Strengthening enforcement mechanisms, ensuring uniform identity documentation, protecting privacy, and increasing transgender representation in policymaking are also essential for a fair and effective legal framework.
In the education sector, institutions must adopt inclusive policies and safe environments by recognizing chosen names and gender identities in official records and providing gender-neutral facilities. Awareness and sensitization programs for students, teachers, and staff can reduce stigma and discrimination, while strong anti-bullying measures and accessible grievance systems ensure safety. Additionally, access to scholarships, financial aid, mental health support, and peer networks can help transgender students overcome social and economic barriers and fully participate in academic life.
In the healthcare sector, efforts should focus on accessible, respectful, and inclusive medical services. This includes training healthcare professionals on transgender health needs, ensuring non-discriminatory treatment, and expanding access to gender-affirming care such as hormone therapy and counselling. Integrating such services into public health schemes like Ayushman Bharat Pradhan Mantri Jan Arogya Yojana can improve affordability. Safeguarding patient confidentiality, establishing inclusive or specialized healthcare centres, and strengthening mental health services are equally important to address both physical and psychological well-being.
Overall, the goal is to move toward a system that respects identity, ensures equal opportunities, and removes structural barriers, enabling transgender individuals to live with dignity, security, and full participation in society.
CONCLUSION
The trajectory of transgender rights in India reflects a gradual yet contested shift from marginalization to legal recognition. The landmark decision in National Legal Services Authority v. Union of India marked a constitutional turning point by affirming gender identity as an essential aspect of dignity, autonomy, and personal liberty. However, as this paper demonstrates, the promise of equality remains only partially fulfilled. The Transgender Persons (Protection of Rights) Act, 2019, along with subsequent developments, reveals a persistent tension between recognition and regulation, particularly in relation to the right to self-identification.
The continued existence of socio-legal barriers ranging from discrimination in education and healthcare to exclusion from economic and social opportunities highlights the gap between formal legal rights and lived realities. Recent trends toward increased state control and verification mechanisms further risk diluting the constitutional vision articulated in NALSA, raising important concerns regarding privacy, autonomy, and substantive equality.
Ultimately, the realization of gender justice requires more than legislative recognition; it demands a transformative approach that aligns legal frameworks with constitutional values and social realities. The path forward lies in moving beyond symbolic inclusion toward meaningful empowerment, ensuring that transgender individuals are not merely recognized under the law but are able to live with dignity, equality, and full participation in society.
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Footnotes
1. Serena Nanda, Neither Man Nor Woman: The Hijras of India (Wadsworth Publ’g Co. 1990).
2. Ruth Vanita & Saleem Kidwai, Same-Sex Love in India (Penguin India 2001)
3. Criminal Tribes Act, No. 27 of 1871 (India) (repealed); Indian Penal Code, No. 45 of 1860, § 377 (India); Arvind Narrain, Queer: Despised Sexuality, Law and Social Change (Books for Change 2004).
4. The Transgender Persons (Protection of Rights) Amendment Bill, 2026, PRS Legislative Research (2026),
5. Gender Identity Law, Law No. 26,743 (2012) (Arg.).
6. Gender Identity, Gender Expression and Sex Characteristics Act, Act No. XI of 2015 (Malta).
7. Surbhi Tyagi et al., Trans Lives Across Borders: A Comparative Study of Transgender Rights and Realities in India and USA, J. Mktg. & Soc. Rsch. (2025).
8. Arvind Narrain, Queer: Despised Sexuality, Law and Social Change (Books for Change 2004).
9. Nat’l Human Rights Comm’n, Report on Human Rights of Transgender Persons in India (Gov’t of India 2018).
10. National Legal Services Authority v. Union of India, (2014) 5 S.C.C. 438 (India)
11. Transgender Persons (Protection of Rights) Act, 2019, No. 40 of 2019, Acts of Parliament, 2019 (India).
12. Rishabh Mehta, Decolonisation in Reverse: India’s 2026 Transgender Amendment Act and the Return of the 1871 Criminal Tribes Act Rationale, I•CONnect (2026),
13. Id.
14. Id.
15. Nat’l Legal Service Authority, Report on Access to Justice for Transgender Persons (2017)