In Indian legal history, there are moments that shimmer with the promise of equality, when the judiciary illuminates the path towards a fairer society. The National Legal Services Authority v. Union of India (“NALSA Case”) in 2014 stands tall amongst such luminous milestones, casting aside the shadows of discrimination to recognize transgender individuals as the 'third gender'. It was a seismic shift, a triumph of human rights over entrenched prejudice, heralding a new era of inclusivity and dignity.
Yet, beneath the veneer of progress lies a stark reality: the echoes of justice often reverberate faintly in the corridors of power. Despite the recognition of transgender persons as the 'third gender’, signaling a departure from traditional binary notions of gender identity and the subsequent enactment of the Transgender Persons (Protection of Rights) Act of 2019 (“2019 Act”), the plight of the community remains entrenched in systemic neglect and societal ostracization. The designation as the 'third gender' was meant to be a clarion call for respect and recognition, yet it seems to have fallen short of its transformative promise.
A recent plea filed in the Supreme Court of India by a transgender teacher sheds light on the harsh realities faced by many in the community. Despite legal safeguards ostensibly in place, stories of discrimination, harassment and exclusion continue to plague the lives of transgender individuals across the country.
The words of the Chief Justice of India upon scrutinizing the case are both poignant and damning. “Something has to be done for her,” he remarked, highlighting the egregious cycle of employment discrimination faced by the transgender teacher. Her repeated termination solely based on her gender identity speaks volumes about the pervasive prejudice that still pervade society. The case of this transgender teacher serves as a sobering reminder of the urgent need for tangible action to address the injustices faced by the transgender community.
In this tableau of legal theater, one cannot help but invoke the words of Cicero: “Salus populi suprema lex esto” – Let the welfare of the people be the supreme law. Yet, for the transgender community, the promise of legal protection remains an elusive mirage, a distant shore obscured by the tempest of prejudice.
In the NALSA judgment, the Supreme Court undertook a comprehensive analysis of the framework of equality enshrined in Article 14 of the Constitution, which mandates that the state must ensure equality before the law and equal protection of the laws for “any person” in India. Notably, Article 14 imposes a proactive duty on the state to enact social and economic reforms to guarantee equal protection, thereby encompassing individuals of all genders, including those who do not fit traditional male or female classifications, such as hijras/transgender persons.
The court rightly recognized that the term ‘any person’ under Article 14 is not restricted to binary gender categories and extends to encompass transgender individuals. Consequently, they are entitled to the full protection of laws across all facets of state activity, including employment, healthcare, education, and civil and citizenship rights, on par with any other citizen.
Furthermore, the court delved into the constitutional guarantee of personal autonomy under Article 21, which safeguards an individual’s right to self-determination. Within this realm, the right to determine one's gender identity is integral to personal autonomy and self-expression, constituting a fundamental aspect of the personal liberty guaranteed by Article 21.
Hence, based on these constitutional principles, the court classified the transgender community in India as the 'third gender'. However, the recognition of transgender individuals as the third gender by the judiciary is undoubtedly a positive development, affirming their existence and rights within the legal framework. Still, the true measure of justice lies not merely in theoretical acknowledgment but in the practical realization of rights and equality in everyday life.
The recent case of a transgender teacher facing recurrent termination from employment serves as a stark reminder of the lingering challenges and barriers faced by the transgender community. Despite legal safeguards and constitutional protections, discrimination and societal prejudices continue to undermine the rights and dignity of transgender individuals, particularly in the realm of employment.
In addition to the NALSA judgment, the Transgender Persons (Protection of Rights) Act of 2019 further solidifies legal protections for the transgender community in India. Notably, Section 3(b) and 3(c) of the Act explicitly prohibit discrimination against transgender individuals in employment settings, whether in government or private establishments. These provisions aim to address the pervasive issue of unfair treatment and denial or termination of employment faced by transgender persons.
Specifically, Section 3(b) and 3(c) establish a comprehensive framework to combat discrimination in the workplace, mandating that no person or establishment shall unfairly treat or deny employment to transgender individuals. Moreover, Section 9 of the Act reinforces these protections by explicitly prohibiting discrimination in all aspects of employment, including recruitment, promotion and related matters.
Despite the clarity and forcefulness of these legal provisions, the reality on the ground paints a different picture. Discrimination against transgender individuals persists, creating a stark dissonance between legal recognition and lived experiences. This disjunction underscores the need for robust implementation mechanisms and proactive measures to bridge the gap between legal theory and practical application.
One potential reason for the continuing prevalence of discrimination is the deep-seated societal prejudices and stereotypes that persist despite legal advancements. Transphobia and gender-based discrimination remain deeply ingrained in social attitudes, perpetuating systemic barriers to equality in employment and other spheres of life.
Furthermore, there may be a lack of awareness or understanding among employers and policymakers regarding the rights and needs of transgender individuals. Inadequate training and education on transgender issues can contribute to ignorance and bias in employment practices, hindering efforts to create inclusive and equitable workplaces.
Moreover, the enforcement mechanisms and accountability measures outlined in the 2019 Act may be insufficient to effectively address instances of discrimination. Without adequate monitoring, reporting mechanisms, and sanctions for non-compliance, the legal protections afforded to transgender individuals may lack teeth in practice.
In light of these challenges, mere rhetoric and legal pronouncements are insufficient to dismantle entrenched discrimination and promote inclusivity. Concrete actions, such as robust enforcement mechanisms, proactive education and awareness campaigns, and targeted interventions to address systemic inequalities are essential to ensure substantive equality for transgender individuals.
In conclusion, while legislative measures such as the 2019 Act represent important steps towards recognizing and protecting the rights of transgender individuals, their effectiveness hinges on the implementation of comprehensive strategies to address the root causes of discrimination and promote a culture of inclusion and respect for diversity in all aspects of society.
It is incumbent upon policymakers, lawmakers and society at large to heed the call for justice and equality. The time for lip service and token gestures has long passed. Concrete steps must be taken to ensure that transgender individuals are not only recognized but fully embraced as equal members of society, free from discrimination and persecution.
(Sonal Gupta is Advocate, Supreme Court of India, and Rahul Parashar is Advocate, High Court of Delhi)
