essay on transgender community in india

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Explained: A brief history of India’s transgender community

While many critics called the starbucks advertisement "foreign propaganda", the transgender community in india has a long and storied history in india..

Starbucks India, in the month of May, stirred up controversy with an advertisement, which featured transgender model Sia as Arpita, who meets her parents at an outlet of the multinational coffee chain. The ad shows the trans woman introducing herself as Arpita and not Arpit, her birth name. Her parents, who were visibly hesitant initially, end up accepting her for who she is towards the end of the ad.

However, a story that ended happily onscreen did not fare well with all of its viewers. While some applauded Starbucks for its message of inclusivity, others called it “too woke” and “a foreign propaganda.”

While the Starbucks ad was always bound to rile up some people, the claim that it is “foreign propaganda” is interesting. Throughout Indian history, transgender individuals have been portrayed in various ways — through both positive and negative lenses.

We briefly trace the history of the transgender community in India.

Depiction of trans people in Hindu mythology

M Michelraj, a PhD research scholar in Public Administration, tracing the historical evolution of transgender community in India, shares that the concept of tritiyaprakriti (third-nature) or napumsaka has been integral to Hindu mythology, Vedic and Puranic literature, epics and folktales. The term napumsaka here indicates the absence of the ability to procreate, thus, distinguishing them from both masculine and feminine markers.

The article highlights that the transgender community comprised of h ijras , eunuchs, Kothis , Aravanis , Jogappas , Shiv-Shakthis etc.

According to researchers Shiva Prakash Srinivasan and Sruti Chandrasekaran, the female avatar of Vishnu — Mohini , who appears in the Mahabharata, counts as the first reference to trans people in the Hindu mythology. Mohini also appears in Vishnu  purana  as well as the Lingapurana , where Shankara-Narayanan’s origins (Hariharan) is attributed to the merging of Shiva and Mohini (Vishnu).

As cited in The New York Times , the trans persons  ( referred to as hijras in the Ramayana ) were the ones who waited in the woods for 14 years after Lord Rama asked “men and women” to “wipe their tears and go away,” after being exiled, because they did not fall within the gender-binary.

The epic Mahabharata carries two main references to trans persons — one, Aravan (translated from the Tamil as the son of a snake), and two, Shikhandi. Srinivasan and Chandrasekaran highlight that for Aravan , who was offered to be killed for Goddess Kali  to ensure the victory of Pandavas in the war, the condition was that he should spend the last night as a married man. As women refused to be married to Aravan , Lord Krishna is believed to have taken the form of  Mohini  and marry him.

Moreover, Princess Amba had sworn to take revenge from Bhishma after he abducted and rejected her in marriage. According to the article,  Transsexualism in Hindu Mythology , Amba, reborn as Shikhandini, changed her sex to become Shikhandi. As Bhishma recognized Shikhandi as Shikhandini during the Kurukshetra war, and refused to fight a “woman,” he lowered his weapons as Shikhandi appeared in Arjuna’s chariot, assisting Arjuna kill Bhishma with his arrows. Shikhandi’s character, thus, became crucial in the victory of the Pandavas.

Trans people during the Mughal era

Michelraj, in his paper, mentions that hijras  served as political advisors, administrators and guardians of the harems, during the Mughal-era. They also served in the royal courts during the Mughal rule in India, according to the paper, and wielded influence in important matters of the state.

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For instance, Itimad Khan was a eunuch-officer in Akbar’s court with the charge of administering the finances of the state. According to historian Shadab Bano’s article ‘Eunuchs in Mughal households and court’, Khan became a sovereign confidant, with not just great influence, but also a tremendous wealth.

The wealth and stature of trans people was noted, often with surprise, by European travellers to Mughal India.

“They can get whatever they desire — fine horses to ride, servants to attend them outside, and female slaves inside the house, clothes as fine and smart as those of their master himself,” Dutch merchant Francisco Pelsaert noted during his visit to the Mughal court in the seventeenth century.

The British and the stigmatisation of trans persons

During British rule, hijras continued to receive protections and benefits from a few Indian states, including provision of land, food, and money. But the British themselves brought with them European attitudes towards transness.

According to an article by The New York Times, the third gender enjoyed a certain degree of respect in the country, under traditional Hindu culture. However, besides other factors, British rule in India has greatly influenced the way people perceive the transgender community today.

What accompanied colonisation in the mid-19th century was a “strict sense of judgment to sexual mores,” which criminalised “carnal intercourse against the order of nature.” According to Michelraj, criminalisation of their existence meant denying them civil rights.

Over time, the discrimination against transgernder people by the state percolated into the society, influencing attitudes and eventually, turning the trans community into a shell of its former self.

Today, the precarity and vulnerability of trans people in India is in part a product of a social and ideological change that occured during British rule.

Contemporary struggles (and victories)

In a landmark verdict, the Supreme Court, in April 2014, legally recognized transgenders or eunuchs as ‘the third gender,’ directing the Centre as well as the states to treat them as socially and educationally backward classes and extend reservations in admission in educational institutions and for public appointments. The historic move came to be referred to as the National Legal Services Authority (NALSA) judgment.

Within the judgment, the apex court directed governments to take steps to remove problems faced by them such as fear, shame, social pressure, depression, and social stigma. The court affirmed the constitutional rights of transgender persons under Articles 14, 15, 19 and 21 of the Constitution.

Further, it was only in 2018 that the Supreme Court widened the ambit of individual autonomy and decisional privacy by decriminalising homosexuality . Reading down the provisions of Section 377 of the Indian Penal Code that criminalised same-sex relationships, the top court held that the law violated the fundamental rights of citizens. The court noted that the said Section was used as a weapon to harass the members of the LGBTQ community, resulting in discrimination.

Although the Bill to ensure horizontal reservation for transgender persons and people with intersex variations was passed in the Rajya Sabha in 2014, the amendments made to the Transgender Persons (Protection of Rights) Act in December 2019, led provisions, including that of horizontal reservation, to be scrapped. Grace Banu, the founder of The Trans Rights Now Collective, filed an application demanding horizontal reservations from the Tamil Nadu government, the SC refused to entertain the same.

It was in 2021 that Karnataka emerged as the first and only state to extend one per cent reservation for trans persons in any service or post in all categories of employment to be filled through the direct recruitment process in the state. The amendment to Rule 9 of the Karnataka Civil Services (General Recruitment) Rules, 1977, also directed recruiting authorities to provide a separate column to allow applicants to identify as ‘others’, apart from male or female.

According to Sudipta Das, a Dalit-queer feminist writer working with The YP Foundation, horizontal reservations “is an intersectional approach that is provided for within each vertical reservation category.” In a column , Das explains, that within the queer community,  “People coming from certain socio-economic locations often have easier access to healthcare, educational and career opportunities, and forms of capital, which might not be the case for Dalit, Bahujan, and Adivasi (DBA) trans people.”

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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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India Just Passed A Trans Rights Bill. Why Are Trans Activists Protesting It?

Sushmita Pathak

Supporters of lesbian, gay, bisexual and transgender community hold placards during a protest against passing of Transgender Persons (Protection of Rights) Bill, 2019, in Bangalore, India, Wednesday, Nov. 27, 2019. Members of the LGBT community alleged that the bill violated their rights instead of empowering them. The bill was passed in upper house of Indian parliament on Tuesday. Aijaz Rahi/AP hide caption

Supporters of lesbian, gay, bisexual and transgender community hold placards during a protest against passing of Transgender Persons (Protection of Rights) Bill, 2019, in Bangalore, India, Wednesday, Nov. 27, 2019. Members of the LGBT community alleged that the bill violated their rights instead of empowering them. The bill was passed in upper house of Indian parliament on Tuesday.

At a massive LGBTQ pride parade in India's capital New Delhi last month, people danced to the beat of drums. "Love is love," they chanted, waving giant rainbow flags.

But the more than 1,000 people who came out on the streets weren't just celebrating India's sexual diversity. They were there to protest proposed transgender rights legislation, which they call regressive. Many participants carried placards in light pink and light blue colors — which signify trans pride — urging lawmakers to reconsider the bill.

Two days later, on Nov. 26, the bill was passed. But as the bill now moves to the Indian president's desk for signature, it has kicked off a fresh round of outrage from the very community it is meant to safeguard.

The new legislation purports to protect transgender rights — but many trans activists say it does the exact opposite. They say it's a huge blow to India's already vulnerable transgender community and undoes a lot of progress made over the past few years. The bill comes just over a year after the Indian Supreme Court's landmark decision to decriminalize homosexuality .

At a news conference in Delhi a day after the bill was passed, transgender activist Grace Banu described it as a "murder of gender justice."

The Transgender Persons (Protection of Rights) bill prohibits discrimination against transgender persons with regard to things like education, employment and the ability to rent or buy property. It also gives transgender persons a "right to self-perceived identity" — but requires them to register with the government if they want to be officially recognized as "transgender." If a transgender person identifies as a trans man or trans woman and wants to be legally recognized as such, they have to submit proof of gender confirmation surgery to the government.

Trans activist Gee Imaan Semmalar says the identity registration requirement flouts a landmark 2014 ruling by India's Supreme Court which recognized the right to choose gender.

"The bill goes against the right to dignity and bodily autonomy of trans people," Semmalar wrote to NPR in an email. He's a member of Sampoorna Working Group, an advocacy organization for transgender and intersex rights.

"You're basically putting a lot of burden on trans people and adding a lot of bureaucratic layers and red-tapeism," says Ajita Banerjie, a Delhi-based gender and sexuality rights researcher.

Banerjie added that the bill fails to mention civil rights like marriage, adoption, social security benefits and also does not provide quotas for transgender people in public education and jobs — something that the Supreme Court's 2014 ruling had directed the government to do.

Transgender individuals in India often face stigma and systematic exclusion in education and employment. As a result, some feel they have no alternative but to turn to sex work; HIV prevalence among India's transgender community is 26 times higher than the national rate. But Semmalar says it's difficult to access health care without facing discrimination.

Trans individuals also face disproportionate public violence and police brutalities, he adds.

The bill makes abusing transgender people a punishable offense with a jail term from six months to two years. But under Indian law, when a cisgender (that is, a person whose gender identity matches their sex at birth) woman or child is sexually abused, the punishment can be as severe as a life sentence or, in some cases, even the death penalty. Semmalar says the lesser punishment for crimes against transgender people reiterates and strengthens the idea that trans lives are dispensable and of lesser value.

Even among lawmakers, the bill was contentious.

"Certification itself is discrimination. It's humiliation of a human being," Jaya Bachchan, a member of India's upper house of parliament, said during a session last week.

Bachchan was among dozens of lawmakers who wanted to send the bill to a select committee for further review. Other lawmakers argued that sending the bill for review would further delay the protection of transgender rights.

"Justice delayed is justice denied," said lawmaker Anil Agrawal, who supported the immediate passing of the bill, in parliament last week. "The transgender community will never forgive us if we delay granting them their rights."

Another lawmaker who was against sending the bill for review insisted that any important points that had been missed could easily be added as amendments later.

In a last-ditch attempt to stop the bill, activists are urging India's president not to sign it into law. If that fails, they're gearing up to challenge the law in India's courts.

In 2014, in a massive victory for India's roughly half a million trans individuals, the country's Supreme Court recognized transgender as a third, separate identity and ruled that Indians have the right to choose their gender.

But this bill sets the whole movement back by a decade, Banerjie says.

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• LGBTQ rights

India’s transgender community celebrates victory, but needs more

Karnataka state recently ruled that education institutes must allow people to officially change name and gender.

Bangalore, India – Born in the late 1990s to a middle-class family in Bangalore, Jeeva M had always felt trapped in the wrong body.

“It was the girl I was in love with in my first year of [junior college] who made me come out. She made me realise I’m a man – I knew this, but she helped me accept,” he told Al Jazeera.

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Jeeva M, now 20, was 18 when he fell in love. The girl thought he was joking about his transition, but wanted to remain friends.

His anxiety rose over the rejection and sense of not belonging in his body – he was born female, and he soon became suicidal and quit school. There are still cuts and scars on his wrist from his attempts to take his own life.

When his parents found out about the girl, he poured out his feelings.

They took him to psychiatrists thinking he would change, telling him it was a “phase”.

A year of prayers, pilgrimages and priests coming over to “fix him” saw him turn to alcohol.

His parents found it difficult to understand him, while psychiatrists provided little support.

Eventually, Jeeva’s grandfather agreed to accompany him to Delhi to meet another doctor, who diagnosed him with gender dysphoria and phoned his parents to explain their son’s condition.

Only two percent of transgender people in India live with their parents, according to a 2018 study by the Kerala Development Society, backed by the National Human Rights Commission of India, which warns of criminal action against parents who disown transgender children.

In that regard, Jeeva considers himself fortunate.

After his hormone therapy began and his body started to change, his parents agreed to pay for surgery, which will cost up to $8,500.

Sex reassignment is considered cosmetic surgery in India, and cannot be claimed under medical insurance.

Jeeva has successfully undergone top surgery and is in the process of undergoing bottom surgery.

“I couldn’t touch a girl with this body. There was deep love but I didn’t know what to do,” he said.

As his transition began, he changed his name and gender on legal documents.

He got an affidavit to identify as male and then changed the details on his Aadhaar card – a unique identification number similar to America’s social security number.

But getting his information changed at the educational level was impossible without a court order.

In March 2019, he filed a writ petition in the Karnataka High Court seeking permission.

He approached the Center for Law and Policy Research, an NGO offering pro-bono legal services headed by Jayna Kothari, a senior advocate in India’s Supreme Court.

Kothari, who worked on the case that led to the landmark judgement decriminalising homosexuality in India in September 2018, argued for Jeeva in the Karnataka High Court and won the case.

“The writ petition was filed just for Jeeva but the judge (Justice S. Sujatha) was actually very progressive and … the case took a turn,” Kothari told Al Jazeera.

The judge ordered the state government to issue a circular to educational institutions across Karnataka, instructing them to allow name and gender change, making it the first state in India to do so.

Karnataka is a southwestern state of more than 60 million people, of which Bangalore is the capital.

Zainab P. Rifai, who works as the national manager of health and human rights at the United Nations Development Programme, also wants to change her name and gender in her academic documents in Maharashtra, a central state more than 500km from Karnataka.

She plans to turn her case into a public interest litigation to serve the interests of the larger community.

Rifai was one of the petitioners in the National Legal Services Authority (NALSA) vs. Union of India case in 2014.  

The NALSA judgement was a landmark decision passed by the Supreme Court of India that legally recognised the fundamental and civil rights of transpersons and allowed them to self-identify as male, female or third gender.

“The struggle [for] 20 years of the movement has been to recognise an existence,” said Akkai Padmashali, an activist in Bangalore who also petitioned the NALSA case.

This kind of judgement allows “people like Jeeva who are part of diverse identities to slowly come to the public realm”, said Padmashali.

She hopes the decision in Karnataka will set an example to all Indian states.

Now they introduce me as their son because they know I'll get p***** off if they introduce me as their daughter. But they are sad their beautiful girl is gone. by  Jeeva M, transgender student

Jeeva said even though the law has been changed, the process of changing his academic papers remains complicated.  

As he waits for the bureaucracy to end, his anxiety is once again rising.

“If cis (people whose gender identity matches the sex that they were assigned at birth) boys [at college] find out I’m a transman who hasn’t done full surgery, I will be harassed in the bathroom,” he said. “I have heard terrifying stories about groping and other things. If I’m not going to college, then I have to get this done with so I can move on with my life.”

And while his family have accepted him, tension remains.

“Now they introduce me as their son because they know I’ll get p***** off if they introduce me as their daughter. But they are sad their beautiful girl is gone.”

His grandmother, meanwhile, worries about who might marry him. In Hindu marriages, families often compare birth certificates of the potential bride and groom to see if their horoscopes match.

“The birth certificate is what you’re stuck with,” said Kothari. “If this happens at the educational level, then this could also be a lead to seek a change with the municipal authorities issuing birth certificates.”

Back in Bangalore, Jeeva, who does not know if and when his birth certificate might reflect his identity, says: “I will have to find someone who understands me.”

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Skilling and Livelihoods for Transgender Community

February 13, 2017.

Only 65% of the transgender community (as compared to 75% in the general population) work for more than six months in the year. Livelihood vulnerability increases risk and vulnerability to HIV. This study aims to understand the barriers and enablers to skilling and livelihood opportunities for transgender people in India. and document government, private sector and civil society measures to address the challenge facing this highly vulnerable segment of society.

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Umamageswari Maruthappan

Transgender Community In India: Rights, Challenges, And Opportunities

KEY TAKEAWAYS

• The Transgender community people are recognized as the third gender in India and such recognition was held to be a matter of their human right.
• The Indian Constitution, with a view to protect them against oppression and harassment, has given various rights under its different articles.
• However, irrespective of that, these people face a number of challenges and discriminations.
• The Government, as well as the Judiciary, has been instrumental in upholding their rights over the years.
• Despite all these, it is a harsh reality that such transgender persons are still deprived of their basic sanitation facility, that is, the availability of separate toilets.
• A plea in this regard is pending before the Delhi High Court.

INTRODUCTION

Acche din! This adage has become almost a cliché to every citizen of India. However, in reality we are yet to achieve the same. Look at the status of equality guaranteed under our Constitution. Ask yourself as a citizen whether we are really equal? The answer is a definite ‘No’. Despite every succeeding government’s promise, they considerably fail to fulfill it. Keeping aside all other factors, let us look at the position of transgenders in India. It gives a clearer picture on how our country is still lacking to treat every individual with equality. Despite years after we claimed ourselves independent, the so called ‘third gender’ cannot be proud of it. This is a major drawback that is preventing us from progressing.

Who are these people under the transgender community?

The term “transgender” has been coined in the mid-1990s for those people whose characteristics and behaviors appear to be gender atypical, that is, outside the stereotypical norms of a gender. They are also known to be gender variant, gender different, and gender non-conforming.

RIGHTS OF TRANSGENDER PEOPLE

What are their rights?

The third gender people are immunized under the India law with some basic rights under Article 14, Article 15, Article 16, Article 21, and Article 23 of the Indian Constitution.

Article 14: Equality before law and equal protection of law.

Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth.

Article 16: Equality of opportunity in matters of public employment.

Article 21: Right to Life and Personal Liberty. This right has a wide scope and includes various rights, including Right to Health, Right to lead life with dignity, and Right to Privacy, within its ambit.

Article 23: Prohibition of traffic in human beings and forced labour.

Some rights that they are deprived of are:

Across the world, transgender people are denied a number of rights. These include right to vote, to own property, to marry, to claim a formal identity through a passport, to hold a ration card, to possess a driving license, to get education, to claim employment, right to health, etc.

CHALLENGES THEY FACE

• Education: This is one of the major challenges faced by the transgender people in India. According tothe 2011 Census, there are 4.9 Lakhs of transgender people in the country, and out of that there were 54, 854 children below the age of six. So, if we go by the Census report, these 54, 854 children should be presently in their secondary and higher secondary school. But this is not the case in reality. For instance, let’s see the 2020 statistics with respect to Class 10 and Class 12 CBSE exams. Around 1, 889, 878 students had appeared for Class 10 CBSE exams in 2020, out of which 11, 01, 664 were boys and 7, 88, 195 were girls. Similarly, 6, 84, 068 boys and 5, 22, 819 girls wrote Class 12 CBSE exams in 2020. However, sadly, only the number of transgender students in this count stands at just 19 and 6 for Class 10 and 12 respectively. This questions the negligence of our educational system.
• Awareness: A 2017 report of NHRC states that 79% of transgender don’t have own accommodation. Similarly, 52.61% have monthly income of less than 10,000 rupees. Further, since most of them do not have a voter ID or AADHAR card, they are not in a position to avail themselves their rights and government schemes.
• Trafficking, begging, dancing at celebrations, sex work, unemployment, lack of medical facilities, no inheritance of property, no provision for adopting a child, etc. are some other problems.

REVOLUTIONARY STEPS TO EMPOWER THE COMMUNITY

• So far, only two states have come up with visible welfare schemes in favour of transgender people:
• Tamil Nadu: This is the state that has been proactively working on the welfare of these community people. It had established “Aravanigal/Transgender Women Welfare Board” to address their social welfare issues. The state also provides them with land. In 2014, it prohibited ‘normalizing’ surgeries until the patient is old enough to give consent.
• Andhra Pradesh- The state ordered the Minority Welfare Department to consider Hijras as a Minority and develop welfare schemes. In Hyderabad, transgenders, who lost their jobs due to COVID-19, began becoming entrepreneurs. One instance is their engagement in making ginger garlic paste and pickles.
• At the central level, efforts have also been made to recruit them into its paramilitary forces.
• Anbu Ruby was appointed as a nurse to a government hospital in December 2019. This was the first time in this regard.
• They are also being selected as police officers .
• “State Policy for Transgenders in Kerala 2015” is an initiative of the Kerala Government which is much related to Tamil Nadu’s Aravanigal Women Welfare Board.
• The Transgender Persons (Protection of Rights) Act, 2019: Key points
• Gender reassignment surgeries free of cost at state run hospitals.
• Government to bear the cost of accommodation and schooling for them.
• Opportunity to study at Government run schools and universities free of cost.
• Access to quality healthcare, affordable housing, medical and life insurance, employment, etc.
• If such person wants to officially get recognized as a “transgender”, it is mandatory to register with the Government. However, they must also submit the proof of gender confirmation surgery to the Government.
• The Act also doesn’t guarantee right to marriage, adoption, social security, reservations in education and employment, etc.
• The Indian law prescribes punishment in case of harassment of all kinds is life sentence or death, however, the bill makes it punishable only for a period from six months to two years.

EFFECTIVE ROLE OF JUDICIARY

There have been various instances wherein the Indian judiciary had stepped in and effectively upheld the rights of the transgender people. Some of the important cases include:

• NALSA vs. Union of India (2014) : The Supreme Court ruled that transgender people should be recognized as third gender and must be allowed to enjoy all the Fundamental Rights.
• Navtej Singh Johar v. Union of India (2018) : Section 377 provides punishment for unnatural offences, and this impediment was used as an instrument to harass them . Due to their relatively insignificant numbers, they were less noticed. However, the Supreme Court, in this case, decriminalized the so called “unnatural offences” under the Section.
• In Arunkumar & Sreeja v. The Inspector General of Registration (2019): This is a landmark case with respect to transgender people’s right to marry. The Madras High Court, for the first time, validated the right to marriage of Transgender Persons under Article 21 of the Indian Constitution.

BASIC SANITATION FACILITIES FOR TRANSGENDER COMMUNITY

Imagine if you want to go to a public washroom and find out there is no separate toilets for your gender. Isn’t that discriminatory? Isn’t that a sign of negligence and ignorance? Well, this is how the third gender people are suffering in public. There is a case in West Bengal that drove the authorities to provide basic sanitation facilities to transgender persons. Sobhan Mukherjee, from Kolkata, was instrumental in installing transgender toilets in the city. He further went ahead to demand seats for them in public transport. Now, this is just one case that occurred in a corner of the country. There might be more such instances that would have gone unnoticed. This clearly reveals that there has been no specific legal provision for this facility. However, when such demands reach the doors of the judiciary, we get to know about them. One such latest case took place in Delhi.

Jasmine Kaur Chhabra vs. Union of India (2021)

A final year Law student, Jasmine Kaur Chhabra, approached the Delhi High Court, seeking its directions to the Central Government for making provisions for separate public toilets for the third gender. The petitionercited the rights recognized under the Indian Constitution to support her plea. It was further submitted that non-availability of separate toilets is violative of the judgements given in NALSA vs Union of India and Navtej Singh Johar v. Ministry of Law.

Replying to the petition, the Delhi Government stated that it has taken all the necessary steps under Section 22 of the Transgender Persons (Protection of Rights) Act, 2019. Further, it also submitted that arrangements have been made to make “T” signs on the toilets of such people. However, the petitioner alleged that there has been no update in this issue.

The Delhi High Court Bench of Chief Justice DN Patel and Justice Jyoti Singh issued a notice to the State seeking its response on the progress regarding the building of separate toilets for third gender people, and adjourned the matter to a later date.

It is visible that the Indian Government always places each of its citizens at a higher height and thus, has conferred several rights on them. However, did you know that only a handful of people actually get to enjoy those rights? The percentage stands very low till today. If this is the case of commonly acknowledged people, then imagine the plight of the transgender community. One of the chief causes for this is their lack of awareness. If we want effective participation of every citizen, it is also equally important to raise voice against injustice. The fight against discriminations of transgender persons is often not taken strictly because of their comparatively low numbers. Despite that, we are witnessing some voices here and there. The petition before the Delhi High Court highlighting the need for separate public toilets for these people is one among them. The proactiveness of the High Court is crucial to give the facility that the third gender deserves.

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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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Transgender Community and Their Welfare in India

The National Human Rights Commission (NHRC) issued an advisory to the Centre, States and UTs to ensure the welfare of transgender persons.

Table of Contents

Context: The National Human Rights Commission (NHRC) issued an advisory to the Centre, States and UTs to ensure the welfare of transgender persons.

Key Highlights of the NHRC’s Advisory

• Discrimination Concerns: The NHRC notes that despite legal reforms , transgender individuals in India still face discrimination, which leads to disparities in employment opportunities, limited access to healthcare, and exclusion from social circles.
• Family Pension: The advisory suggests that a single transchild of a deceased government employee or pensioner should be treated as an unmarried daughter for the purpose of family pension and other benefits.
• Inheritance Rights: Transgender persons should be allowed to inherit ancestral agricultural land, according to the advisory.
• Identity Card: The NHRC recommends providing a multi-purpose identity card to transgender individuals. This card can help them access government schemes and other benefits more easily.
• Insurance Acceptance: Insurance companies are advised to consider and accept the Transgender Certificate issued by the appropriate authority for document verification purposes.
• Timely Release of Funds: The NHRC urged the government to ensure the timely release of allocated funds for the Garima Greh shelter scheme.
• Implementation and Reporting: The NHRC has asked the stakeholders to implement its recommendations effectively and submit “action-taken” reports within two months.

About Transgenders

• According to the World Health Organization, Transgender is an umbrella term for people whose gender identity and expression does not conform to the norms and expectations traditionally associated with the sex assigned to them at birth.
• They are referred to as transsexuals if they desire medical assistance in order to make the transition from one biological sex to another.
• The highest proportion of the trans-gender population, about 28%, has been identified in Uttar Pradesh followed by Andhra Pradesh, Maharashtra, Bihar, Madhya Pradesh and West Bengal.
• In India, there are a wide range of transgender related identities which includes the Hijras, Aravanis, Kothis, Jogtas/ Jogappas, Shiv Sakthis.

Challenges Faced by the Transgender Community

• Discrimination: They experience discrimination at work, in educational institutions, and in their own homes, which negatively impact their well-being.
• Social Stigma: Transgender individuals often face social stigma and exclusion, making it difficult for them to adopt children, inherit property, or access basic rights and services. They may be marginalized and forced into menial jobs or pushed into sex work as a result of limited opportunities.
• Unemployment: Due to the associated societal stigma, the community has few employment options and experiences severe discrimination at work.
• Lack of public amenities: They have trouble accessing public restrooms and other public areas. In hospitals, schools, and prisons, they frequently encounter issues.
• Gender-based violence: Transgenders are often subjected to sexual abuse, rape and exploitation.
• Healthcare Disparities: Transgender people often encounter challenges in accessing adequate healthcare services that are sensitive to their specific needs.
• Lack of Representation: They are often underrepresented in media, politics and governance and are not included in mainstream society. This can make it difficult for them to have their voices heard and for their needs to be addressed.

Transgender rights in India

• The court held that all transgender persons are entitled to fundamental rights under Article 14 (Equality), Article 15 (Non-Discrimination), Article 16 (Equal Opportunity in Public Employment), Article 19(1)(a) (Right to Free Speech) and Article 21 (Right to Life) of the Indian Constitution.
• In 2020, the parliament legally recognized ‘transgender’ as an official gender in India.
• Liberty to Choose Sexual or Gender Identity: In the case of G. Nagalakshmi v. Director General of Police (2014), the Madras High Court observed that in the absence of any special law, any person has the liberty to choose their sexual or gender identity and upheld the petitioner’s right to choose their own gender.
• Right to Privacy: In Puttuswamy v. Union of India (2017), the Supreme Court noted the constitutional right to privacy inherent in the right to life, equality and fundamental freedoms. This includes the right to have intimate relations of one’s choice and the right to sexual orientation and gender identity.
• Decriminalisation of Section 377 of IPC: In Navtej Singh Johar v. the Union of India (2018), the Supreme Court (SC) decriminalised homosexuality by striking off parts of Section 377 of the Indian Penal Code (IPC) which were held violative of Fundamental Rights of LGBTQ Community.

Transgender Persons (Protection of Rights) Act, 2019

The Act aims to end discrimination against transgender persons in accessing education, employment and healthcare. Key Provisions of the Act Include:

• It includes trans-men and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar and hijra.
• Intersex variations are defined to mean a person who at birth shows variation in his or her primary sexual characteristics, external genitalia, chromosomes, or hormones from the normative standard of male or female body.
• Prohibition against discrimination: The Act prohibits the discrimination against a transgender person, including denial of service or unfair treatment in relation to: (i) education; (ii) employment; (iii) healthcare; (iv) access to, or enjoyment of goods, facilities, opportunities available to the public; (v) right to movement; (vi) right to reside, rent, or otherwise occupy property; (vii) opportunity to hold public or private office; and (viii) access to a government or private establishment in whose care or custody a transgender person is.
• If the immediate family is unable to care for the transgender person, the person may be placed in a rehabilitation centre, on the orders of a competent court.
• Every establishment is required to designate a person to be a complaint officer to deal with complaints in relation to the Act.
• Education: Educational institutions funded or recognised by the relevant government shall provide inclusive education, sports and recreational facilities for transgender persons, without discrimination.
• The government shall review medical curriculum to address health issues of transgender persons, and provide comprehensive medical insurance schemes for them.
• Certificate of identity for a transgender person: A transgender person may make an application to the District Magistrate for a certificate of identity, indicating the gender as ‘transgender’.
• Offences and penalties: The Act recognize the following offences against transgender persons: (i) forced or bonded labour (excluding compulsory government service for public purposes), (ii) denial of use of public places, (iii) removal from household, and village, (iv) physical, sexual, verbal, emotional or economic abuse.  Penalties for these offences vary between six months and two years, and a fine.
• Union Minister for Social Justice (Chairperson);
• Minister of State for Social Justice (Vice- Chairperson);
• Secretary of the Ministry of Social Justice;
• one representative from ministries including Health, Home Affairs, and Human Resources Development.
• Other members include representatives of the NITI Aayog, and the National Human Rights Commission.
• State governments will also be represented.
• The Council will also consist of five members from the transgender community and five experts from non-governmental organisations.

Initiatives for Transgender Community in India

• Counseling, basic documentation, education, skill development, financial assistance to transgender students.
• Composite medical health and setting up of Garima Grehs in each state for providing shelter facility for abandoned and orphaned transgender persons.
• Transgender protection cells in India for providing quick redressal of offences & crimes against transgender persons.
• A ‘Gender-Inclusion Fund’ will be constituted under the new policy to build the nation’s capacity to provide equitable quality education for all girls as well as transgender students.
• PM-DAKSH: The Ministry of Social Justice and Empowerment is imparting skill development training to the Transgender beneficiaries of the SMILE Scheme through PM-DAKSH.

State laws to protect the transgender population:

• Odisha – ‘Sweekruti’:  To secure the rights of transgender persons and ensure equitable justice. Skill up-gradation, legal aid, health care provision.
• Kerala: Transgender policy in 2015, Schools, Justice board for welfare of transgenders, Fully Transgender run metro station, G-Taxis: entirely owned and run by transgenders, free sex-reassignment surgeries.
• Tamil Nadu: Transgender welfare policy, free surgeries, the first state to form a Transgender board with members from the community.
• Chandigarh: Transgender board comprising members from all departments viz., police, health, social welfare, education and the law department.

Way Forward

• To recognize the transgender community as an essential part of societal life, there needs to be widespread sensitization, beginning at the school level.
• Education: It’s crucial to develop an efficient system for educating students at colleges and universities on the needs and makeup of the transgender community.
• Financial Security: To begin their career as an entrepreneur or businessman, it is important to guarantee liberal credit facilities and financial help.
• Employment: Plans and initiatives should focus on enhancing the skills of transgender communities. The hiring, retention, and promotion processes must successfully abide by anti-discrimination policies.
• Transgender-Inclusive Policies: Legal and the law enforcement systems need to be empowered and sensitized on the issues of Transgender community.

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Transgender social inclusion and equality: a pivotal path to development

Vivek divan.

1 United Nations Development Programme Consultant, Delhi, India

Clifton Cortez

2 United Nations Development Programme, HIV, Health, and Development Group, New York, NY, USA

Marina Smelyanskaya

3 United Nations Development Programme Consultant, New York, NY, USA

JoAnne Keatley

4 University of California, San Francisco, Center of Excellence for Transgender Health, San Francisco, CA, USA

Introduction

The rights of trans people are protected by a range of international and regional mechanisms. Yet, punitive national laws, policies and practices targeting transgender people, including complex procedures for changing identification documents, strip transgender people of their rights and limit access to justice. This results in gross violations of human rights on the part of state perpetrators and society at large. Transgender people's experience globally is that of extreme social exclusion that translates into increased vulnerability to HIV, other diseases, including mental health conditions, limited access to education and employment, and loss of opportunities for economic and social advancement. In addition, hatred and aggression towards a group of individuals who do not conform to social norms around gender manifest in frequent episodes of extreme violence towards transgender people. This violence often goes unpunished.

The United Nations Development Programme (UNDP) views its work in the area of HIV through the lens of human rights and advances a range of development solutions such as poverty reduction, improved governance, active citizenship, and access to justice. This work directly relates to advancing the rights of transgender people. This manuscript lays out the various aspects of health, human rights, and development that frame transgender people's issues and outlines best practice solutions from transgender communities and governments around the globe on how to address these complex concerns. The examples provided in the manuscript can help guide UN agencies, governments, and transgender activists in achieving better standards of health, access to justice, and social inclusion for transgender communities everywhere.

Conclusions

The manuscript provides a call to action for countries to urgently address the violations of human rights of transgender people in order to honour international obligations, stem HIV epidemics, promote gender equality, strengthen social and economic development, and put a stop to untrammelled violence.

Those who have traditionally been marginalized by society and who face extreme vulnerability to HIV find that it is their marginalization – social, legal, and economic – which needs to be addressed as the highest priority if a response to HIV is to be meaningful and effective. Trans people's experiences suggest that although HIV is a serious concern for those who acquire it, the suffering it causes is compounded by the routine indignity, inequity, discrimination, and violence that they encounter. Trans people, and particularly trans women, have articulated this often in the context of HIV [ 1 ].

For a reader who is not trans, imagine a world in which the core of your being goes unrecognized – within the family, if and when you step into school, when you seek employment, or when you need social services such as health and housing. You have no way to easily access any of the institutions and services that others take for granted because of this denial of your existence, worsened by the absence of identity documents required to participate in society. Additionally, because of your outward appearance, you may be subject to discrimination, violence, or the fear of it. In such circumstances, how could you possibly partake in social and economic development? How could your dignity and wellbeing – physical, mental, and emotional – be ensured? And how could you access crucial and appropriate information and services for HIV and other health needs?

Trans people experience these realities every day of their lives. Yet, like all other human beings, trans people have fundamental rights – to life, liberty, equality, health, privacy, speech, and expression [ 2 ], but constantly face denial of these fundamental rights because of the rejection of the trans person's right to their gender identity. In these circumstances, there can be no attainment of the goal of universal equitable development as set out in the 2030 Agenda for Sustainable Development [ 3 ], and no effort to stem the tide of the HIV epidemic among trans people can succeed if their identity and human rights are denied.

The human rights gap – stigma, discrimination, violence

The ways in which marginalization impacts a trans person's life are interconnected; stigma and transphobia drive isolation, poverty, violence, lack of social and economic support systems, and compromised health outcomes. Each circumstance relates to and often exacerbates the other [ 4 ].

Trans people who express their gender identity from an early age are often rejected by their families [ 5 ]. If not cast out from their homes, they are shunned within households resulting in lack of opportunities for education and with no attempts to ensure attention to their mental and physical health needs. Those who express their gender identities later in life often face rejection by mainstream society and social service institutions, as they go about undoing gender socialization [ 6 ]. Hostile environments that fail to understand trans people's needs threaten their safety and are ill-equipped to offer sensitive health and social services.

Such discriminatory and exclusionary environments fuel social vulnerability over a lifetime; trans people have few opportunities to pursue education, and greater odds of being unemployed, thereby experiencing inordinately high levels of homelessness [ 6 ] and poverty [ 7 ]. Trans students experience resentment, prejudice, and threatening environments in schools [ 8 ], which leads to significant drop-out rates, with few trans people advancing to higher education [ 9 ].

Workplace-related research on lesbian, gay, bisexual, and trans (LGBT) individuals reveals that trans workers are the most marginalized and are excluded from gainful employment, with discrimination occurring at all phases of the employment process, including recruitment, training opportunities, employee benefits, and access to job advancement [ 10 ]. This environment inculcates pessimism and internalized transphobia in trans people, discouraging them from applying for jobs [ 11 ]. These extreme limitations in employment can push trans people towards jobs that have limited potential for growth and development, such as beauticians, entertainers or sex workers [ 12 ]. Unemployment and low-paying or high risk and unstable jobs feed into the cycle of poverty and homelessness. When homeless trans people seek shelter, they are housed as per their sex at birth and not their experienced gender, and are subject to abuse and humiliation by staff and residents [ 13 ]. In these environments, many trans people choose not to take shelter [ 14 ].

Legal systems often entrench this marginalization, feed inequality, and perpetuate violence against trans people. All people are entitled to their basic human rights, and nations are obligated to provide for these under international law, including guarantees of non-discrimination and the right to health [ 2 ]; however, trans people are rarely assured of such protection under these State obligations.

Instead, trans people often live in criminalized contexts – under legislation that punishes so-called unnatural sex, sodomy, buggery, homosexual propaganda, and cross-dressing [ 12 ] – making them subject to extortion, abuse, and violence. Laws that criminalize sex work lead to violence and blackmail from the police, impacting trans women involved in this occupation [ 15 ]. Being criminalized, trans people are discouraged from complaining to the police, or seeking justice when facing violence and abuse, and perpetrators are rarely punished. When picked up for any of the aforementioned alleged crimes or under vague “public nuisance” or “vagrancy” laws, their abuse can continue at the hands of the police [ 16 ] or inmates in criminal justice systems that fail to appropriately respond to trans identities.

The transphobia that surrounds trans people's lives fuels violence against them. Documentation over the last decade reveals the disproportionate extent to which trans people are murdered, and the extreme forms of torture and inhuman treatment they are subject to [ 16 – 18 ]. When such atrocities are perpetrated against trans people, governments turn a blind eye. Trans sex workers are particularly vulnerable to brutal police conduct including rape, sometimes being sexually exploited by those who are meant to be protectors of the law [ 15 ]. In these circumstances, options to file complaints are limited and, when legally available channels do exist, trans complainants are often ignored [ 19 ].

These experiences of severe stigma, marginalization, and violence by families, communities, and State actors lead to immense health risks for trans people, including heightened risk for HIV, mental health disparities, and substance abuse [ 20 , 21 ]. However, most health systems struggle to function outside the traditional female/male binary framework, thereby excluding trans people [ 22 ]. Health personnel are often untrained to provide appropriate services on HIV prevention, care, and treatment or information on sexual and reproductive health to trans people [ 20 , 23 ]. HIV voluntary counselling and testing facilities and antiretroviral therapy (ART) sites intimidate trans people due to prior negative experiences with medical staff [ 21 , 24 , 25 ]. Additionally, when trans women test HIV positive, they are wrongly reported as men who have sex with men [ 4 ]. Consequently, testing rates in trans communities are low [ 26 ], which serves to disguise the serious burden of HIV among trans people and perpetuates the lack of investment in developing trans-sensitive health systems. The economic hardships that trans people face due to their inability to participate in the workforce further complicate access to HIV, mental health, and gender-affirming health services. In short, hostile social and legal environments contribute to health gaps, and public health systems that are unresponsive to the needs of trans people.

In addition, understanding of trans people's concerns around stigma, discrimination, and violence, related as they are to gender identity, is often limited due to their being combined with lesbian, gay, and bisexual sexual orientation issues. However, trans people's human rights concerns, grounded in their gender identity, are inherently different and necessitate their own set of approaches.

Imperatives for trans social inclusion

In order to overcome the human rights barriers trans people confront, certain measures are imperative and should be self-evident, given the standards that States are obliged to provide under international law to all human beings. Paying attention to these is key to effectively addressing the systemic marginalization that trans people experience. Such action can have immeasurable benefits, including the full participation of trans people in human development processes as well as positive health and HIV outcomes. For trans people, the change must begin with the most fundamental element – acknowledgement of their gender identity.

The right to gender recognition

For trans people, their very recognition as human beings requires a guarantee of a composite of entitlements that others take for granted – core rights that recognize their legal personhood. As the Global Commission on HIV and the Law pointed out, “In many countries from Mexico to Malaysia, by law or by practice, transgender persons are denied acknowledgment as legal persons. A basic part of their identity – gender – is unrecognized” [ 19 ]. This recognition of their gender is core to having their inherent dignity respected and, among other rights, their right to health including protection from HIV. When denied, trans people face severe impediments in accessing appropriate health information and care.

Recognizing a trans person's gender requires respecting the right of that person to identify – irrespective of the sex assigned to them at birth – as male, female, or a gender that does not fit within the male–female binary, a “third” gender as it were, as has been expressed by many traditionally existing trans communities such as hijras in India [ 27 ]. This is an essential requirement for trans people to attain full personhood and citizenship. The guarantee of gender recognition in official government-issued documents – passports and other identification cards that are required to open bank accounts, apply to educational institutions, enter into housing or other contracts or for jobs, to vote, travel, or receive health services or state subsidies – provides access to a slew of activities that are otherwise denied while being taken for granted by cisgender people. 1 Such recognition results in fuller civic participation of and by trans people. It is a concrete step in ensuring their social integration, economic advancement, and a formal acceptance of their legal equality. It can immeasurably support their empowerment and act as an acknowledgement of their dignity and human worth, changing the way they are perceived by their families, by society in general, and by police, government actors, and healthcare personnel whom they encounter in daily life. UN treaty bodies have acknowledged this vital right of trans people to be recognized. The UN High Commissioner for Human Rights has recommended that States “facilitate legal recognition of the preferred gender of transgender persons and establish arrangements to permit relevant identity documents to be reissued reflecting preferred gender and name, without infringements of other human rights” [ 28 ].

Freedom from violence & discrimination

Systemic strategies to reduce the violence against trans people need to occur at multiple levels, including making perpetrators accountable, facilitating legal and policy reform that removes criminality, and general advocacy to sensitize the ill-informed about trans issues and concerns. Strengthening the capacity of trans collectives and organizations to claim their rights can also act as a counter to the impunity of violence. When trans people are provided legal aid and access to judicial processes, accountability can be enforced against perpetrators. Sensitizing the police to make them partners in this work can be crucial. When political will is absent to support such attempts in highly adverse settings, trans organizations and allies can consider using international human rights mechanisms, such as shadow reports made to UN human rights processes like the Universal Periodic Review, to bring focus to issues of anti-trans violence and other human rights violations against trans people.

Providing equal access to housing, education, public facilities and employment opportunities, and developing and implementing anti-discrimination laws and policies that protect trans people in these contexts, including guaranteeing their safety and security, are essential to ensure that trans individuals are treated as equal human beings.

The right to health

For trans people, their right to health can only be assured if services are provided in a non-stigmatizing, non-discriminatory, and informed environment. This requires working to educate the healthcare sector about gender identity and expression, and zero tolerance for conduct that excludes trans people. Derogatory comments, breaches of confidentiality from providers, and denial of services on the basis of gender identity or HIV status are some of the manifestations of prejudice. The right to non-discrimination that is guaranteed to all human beings under international law must be enforced against actions that violate this principle in the healthcare system. Yet, a multi-pronged approach that supports this affirmation of trans equality together with a sensitized workforce that is capable of delivering gender-affirming surgical and HIV health services is necessary.

Building on the commitments made by the UN General Assembly in response to the HIV epidemic [ 29 ], the World Health Organization (WHO) developed good practice recommendations in relation to stigma and discrimination faced by key populations, including trans people [ 30 ]. These recommendations urge countries to introduce rights-based laws and policies and advise that, “Monitoring and oversight are important to ensure that standards are implemented and maintained.” Additionally, mechanisms should be made available “to anonymously report occurrences of stigma and/or discrimination when [trans people] try to obtain health services” [ 30 ].

Fostering stigma-free environments has been successfully demonstrated – where partnerships between trans individuals and community health nurses have improved HIV-related health outcomes [ 31 ], or where clinical sites welcome trans people and conduct thorough and appropriate physical exams, manage hormones with particular attention to ART, and engage trans individuals in HIV education [ 32 ].

Advancing trans human rights and health

For all the challenges faced by trans people in the context of their human rights and health, promising interventions and policy progress have shown that positive change is possible, although this must be implemented at scale to have significant impact. Change has occurred due to the efforts of trans advocates and human rights champions, often in critical alliances with civil society supporters as well as sensitized judiciaries, legislatures, bureaucrats, and health sector functionaries.

Key strides have been made in the context of gender recognition in some parts of the world. In the legislatures, this trend began in 2012 with Argentina passing the Gender Identity and Health Comprehensive Care for Transgender People Act , which provided gender recognition to trans people without psychiatric, medical, or judicial evaluation, and the right to access free and voluntary transitional healthcare [ 33 , 34 ]. In 2015, Malta passed the Gender Identity, Gender Expression and Sex Characteristics Act , which provides a self-determined, speedy, and accessible gender recognition process. The law protects against discrimination in the government and private sectors. It also de-pathologizes gender identity by stating that people “shall not be required to provide proof of a surgical procedure for total or partial genital reassignment, hormonal therapies or any other psychiatric, psychological or medical treatment.” It presumes the capacity of minors to exercise choice in opting for gender reassignment, while recognizing parental participation and the minor's best interests. It stipulates the establishment of a working group on trans healthcare to research international best practices [ 35 ]. Pursuant to its passing the Maltese Ministry of Education working with activists also developed policy guidelines to accommodate trans, gender variant, and intersex children in the educational system [ 36 ]. Other countries, such as the Republic of Ireland and Poland, have also passed gender identity and gender expression laws, albeit of varying substance but intended to recognize the right of trans people to personhood [ 37 , 38 ]. Denmark passed legislation that eliminated the coercive requirement for sterilization or surgery as a prerequisite to change legal gender identity [ 39 ].

Trans activists and allies have also used the judicial process to claim the right to gender recognition. In South Asia, claims to recognition of a gender beyond the male–female binary have been upheld – in 2007, the Supreme Court of Nepal directed the government to recognize a third gender in citizenship documents in order to vest rights that accrue from citizenship to metis [ 40 ]; in Pakistan, the Supreme Court directed the government to provide a third gender option in national identity cards for trans people to be able to vote [ 41 ]; in 2014, the Indian Supreme Court passed a judgement directing the government to officially recognize trans people as a third gender and to formulate special programmes to support their needs [ 42 ]. These developments in law, while hopeful, are too recent to yet discern any resultant trends in improvements in trans peoples’ lives, more broadly.

More localized innovative efforts have also been made by trans organizations to counter violence, stigma, and discrimination. For instance in South Africa, Gender DynamiX, a non-governmental organization worked with the police to change the South African Police Services’ standard operating procedures in 2013. The procedures are intended to ensure the safety, dignity, and respect of trans people who are in conflict with the law, and prescribe several trans-friendly safeguards – the search of trans people as per the sex on their identity documents, irrespective of genital surgery, and detention of trans people in separate facilities with the ability to report abuse, including removal of wigs and other gender-affirming prosthetics. Provision is made for implementation of the procedures through sensitization workshops with the police [ 43 ]. In Australia, the Transgender Anti-Violence Project was started as a collaboration between the Gender Centre in Sydney and the New South Wales Police Force, the City of Sydney and Inner City Legal Centre in 2011. It provides education, referrals, and advocacy in relation to violence based on gender identity, and support for trans people when reporting violence, assistance in organizing legal aid and appearances in court [ 44 ].

Measures have also been taken to tackle discrimination faced by trans people, in recognition of their human rights – in 2015, Japan's Ministry of Education ordered schools to accept trans students according to their preferred gender identity [ 45 ]; in 2014 in Quezon City, the Philippines the municipal council passed the “Gender Fair City” ordinance to ensure non-discrimination of LGBT people in education, the workplace, media depictions, and political life. This law prohibits bullying and requires gender-neutral bathrooms in public spaces and at work [ 46 ]; in Ecuador, Alfil Association worked on making healthcare accessible to trans people, including training and sensitization meetings for health workers and setting up a provincial health clinic for trans people in collaboration with the Ministry of Health, staffed by government physicians who had undergone the training; and Transbantu Zambia set up a small community house providing temporary shelter for trans people, assisting them in difficult times or while undergoing hormone therapy. Similar housing support has been provided by community organizations with limited resources in Jamaica and Indonesia. 2

Towards sustainable development: time for change

Although there are other examples of human rights progress for trans people, much of this change is isolated, non-systemic, and insufficient. Trans people continue to live in extremely hostile contexts. What is required is change and progress at scale. The international community's recent commitment towards Sustainable Development Goals (SDGs) presents an opportunity to catalyze and expand positive interventions [ 3 ].

Preventing human rights violations and social exclusion is key to sustainable and equitable development. This is true for trans people as much as other human beings, just as the achievement of all 17 SDGs is of paramount importance to all people, including trans people. Of these SDGs, the underpinning support for trans people's health and human rights is contained in SDG 3 –“Ensure healthy lives and promote well-being for all at all ages,” SDG 10 – “Reduce inequality within and among countries,” and SDG 16 – “Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.”

The SDGs are guided by the UN Charter and grounded in the Universal Declaration of Human Rights. They envisage processes that are “people-centered, gender-sensitive, respect human rights and have a particular focus on the poorest, most vulnerable and those furthest behind” and a “just, equitable, tolerant, open and socially inclusive world in which the needs of the most vulnerable are met” [ 3 ]. They reiterate universal respect for human rights and dignity, justice and non-discrimination, and a world of equal opportunity permitting the full realization of human potential for all irrespective of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, disability, or other status . The relationship between the SDGs and trans people's concerns has been robustly articulated in the context of inclusive development [ 47 ].

UN Member States have unequivocally agreed to this new common agenda for the immediate future. The SDGs demand an unambiguous, farsighted, and inclusive demonstration of political will. Their language clearly reflects the most urgent needs of trans people, for whom freedom from violence and discrimination, the right to health and legal gender recognition are inextricably linked.

Specifically in regard to trans people, the SDGs are a call to immediate action on several fronts: governments need to engage with trans people to understand their concerns, unequivocally support the right of trans people to legal gender recognition, support the documentation of human rights violations against them, provide efficient and accountable processes whereby violations can be safely reported and action taken, guarantee the prevention of such violations, and ensure that the whole gamut of robust health and HIV services are made available to trans people. Only then can trans people begin to imagine a world that respects their core personhood, and a world in which dignity, equality, and wellbeing become realities in their lives.

Acknowledgements and funding

The authors are grateful for the work of courageous trans activists around the world who have overcome tremendous challenges and continue to battle disparities as they bring about positive change. Many encouraging examples cited in this manuscript would be impossible without their contribution. The authors also thank Jack Byrne, an expert on trans health and human rights, whose work on the UNDP Discussion Paper on Transgender Health and Human Rights (2013) served as an inspiration for this piece, and JoAnne Keatley's effort to provide writing, editorial comment, and oversight. UNDP staff and consultants, who contributed time to this manuscript, were supported by UNDP.

1 Cisgender people identify and present in a way that is congruent with their birth-assigned sex. Cisgender males are birth-assigned males who identify and present themselves as male.

2 These illustrations are based on information gathered in the process of developing a tool to operationalize the Consolidated Guidelines on HIV prevention, diagnosis, treatment and care for key populations (WHO, 2014), through interviews with and questionnaires sent to trans activists. See also reference 31.

Competing interests

The authors have declared that no competing interests exist.

Authors' contributions

The concept for this manuscript was a result of collaborative work between all four authors. VD provided key ideas for content and led the writing for the manuscript. CC provided thought leadership and contributed writing, particularly on the SDGs, while MS provided writing and editorial input, as well as other support. JK advised on content and provided writing and editorial input and guidance. All authors have read and approved the final version.

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