The Third Gender: An Insight into Transgender Rights in India

Embedded in our history, scriptures, and sciences, the transgender community has made an indelible mark on what we proudly deem to be our culture. Composed of Hijras, eunuchs, Kothis, Aravanis, Jogappas, Shiv-Shakthis etc, the community finds its roots tracing back to the Vedas, Puranas, and other significant oral and written traditions like the Ramayana.

Illustration by The Geostrata

The community is often referred to as ‘napunsaka,’ which means someone with the inability to procreate, and as ‘tritya prakriti,’ the ‘third nature.’ Texts pertaining to ancient medicine, such as the Sushruta Samhita use these connotations to refer to the transgender community, marking their presence in works of science as well.

The Ramayana mentions the transgender community as one composed of individuals who have been conferred the power to provide blessings to individuals on auspicious occasions like childbirth, marriage, or other significant rituals. The Mughal courts, too, were composed of transgender persons, as they held positions of political advisory and guardianship as well. 

However, with the onset of colonial rule, a sense of disgust became synonymous with the transgender community as they were unable to understand why the community was so culturally significant and respected in India.

The British criminalised their public presence by classifying hijras as a criminal tribe under the infamous Criminal Tribes Act of 1871, and stripped them of any rights and dignity they possessed.

The prolonged discrimination they faced under British rule resulted in a subsequent marginalisation of the community. Generations succeeding colonial rule have adopted this colonial strain of thought, leading to the present-day social stigma surrounding the third gender community in India. 

The community, soon tired of being marginalised under the flag of social stigma, began advocating for its fair representation in law and politics. As of March 2026, India has so far embarked upon a quite confusing and convoluted manner of navigating transgender rights. From the first hearing of transgender rights in the Supreme Court in 2014 to its formal legislation in 2019, followed by a contested amendment in March 2026, transgender rights in India raise questions about constitutional morality and the social stigma to it. 

CONSTITUTIONALITY V. SOCIAL STIGMA: NALSA JUDGEMENT 2014 AND TRANSGENDER PERSONS ACT 2019

In 2014, the National Legal Services Authority decided to reform the then existing state of transgender persons in India. A case was filed by NALSA, making a plea to legally recognise persons who are not included in the male-female binary. This plea is predicated upon the need for a legal ‘third gender’ in India. The argument was simple: for an individual to determine their gender means they are exercising their fundamental rights of liberty, bodily autonomy, equality, and expression, and no institution or person in the country can strip one bare of these rights.

Hence came the famous NALSA v. Union of India judgment, which became the first in the nation to account for the recognition and protection of the third gender. NALSA gave transgender persons the right to self-identify with no need for the presence of medical proof. This judgment was lauded nationwide, as it finally recognised the historical community. 

This was a monumental development in the scenario of transgender rights in India. For a community as discriminated against as transgender individuals, be it in terms of obtaining jobs or in any social space, the legal recognition of their genders was a monumental stepping stone. By securing the right to self-identify, the judgment formally recognised the presence of a third gender alongside the existing binary of male and female without the need for medical proof or screening.

The NALSA judgment was soon followed by the decriminalisation of consensual same-sex relationships in 2018 through the landmark ruling of the Navtej Singh Johar v. Union of India, marking a shift towards equality. The Supreme Court ruled that any discrimination based on sexual orientation would be treated as a violation of the fundamental rights of the individual.

The graph of development began plummeting gradually with the legislation of the Transgender Persons Act in 2019. This act was the formal, parliamentary manifestation of the 2014 NALSA judgment. It promised anti-discrimination measures, employment, and also instituted welfare schemes for transgender persons.

Despite fairly inclusive provisions, the act was criticised nationwide. The matter of contention being the act changed many core principles that were embedded in the NALSA judgment, hence making it an incomplete manifestation of the same. 

The act took away transgender persons’ right to self-identity by mandating a medical certificate as proof of gender. The act further involved bureaucratic bodies, as it necessitated the approval of a district magistrate, who would then issue the certificate. This lone aspect was scrutinised for taking away the essence of self-identification. It was viewed as a direct violation of fundamental rights affiliated with expression and bodily autonomy as well. 

THE POINT OF CONTENTION: 2026 AMENDMENT TO TRANSGENDER PERSONS ACT 2019

On March 13, 2026, an amendment to the aforementioned Transgender Persons Act 2019 was proposed in the parliament, which proposed changes so weighty that they have sparked protests all over the nation. The amendment is flawed to the extent of inviting immense criticism from the National Council for Transgender Persons, too. 

Although the Transgender Persons Act of 2019 initiated the process of involving the District Magistrate to oversee the process of certification, the proposed amendment chooses to erase any iota of self-perceived identity legally. The amendment outlines a new criterion that will be defined by the state, hence erasing any sense of self-identity altogether.

The new criteria would also include a mandatory medical or psychological evaluation based on one’s gender. Worse off, body screening has been proposed to be mandated as well. All these proposed amendments stray far away from the NALSA judgment, removing any essence of freedom of choice and self-identity altogether. 

VALIDITY OF THE AMENDMENT

On 25 March 2026, the Rajya Sabha passed the amendment bill, promptly following the Lok Sabha. The amendment to the Transgender Persons Act will bring about a major structural shift in how the transgender community is perceived, recognised, and treated in India. Many protests are being held nationwide with regard to how the amendment would reverse every bit of progress made so far, especially in terms of equality in rights and legal recognition. If we see the trajectory of provisions promised, from the NALSA judgment to the amendment made, we will see a steep, plummeting graph. 

The trajectory of rights has undergone a negative and discontentful shift, changing from personal rights being ascribed to transgender persons to being regulated by the state. Similarly, another shift is seen in how we have moved from a sense of self-identity to that of a mere ‘state certificate’ deciding one’s gender.

While one can argue for the amendment, the disadvantages of the same heavily outweigh the support. Some view it as a way of achieving administrative clarity, with the legal benefits reaching those who can truly benefit from it. Others argue that this amendment is erasing every right that was conferred upon transgender persons. 

The amendment does stand at odds with constitutional provisions. 

If a state is to decide one’s identity, or chooses to screen an individual to cross-examine their gender, they are directly violating not just the Supreme Court’s verdict on NALSA in 2014, but also the fundamental rights provided under freedom of speech and expression: Article 19(1)(a) and the bodily autonomy and privacy: Article 21.

With the parliament passing an amendment which clearly violates the very essence of the 2014 NALSA ruling, the Supreme Court has appointed a panel to review the constitutionality of the amendment. Led by Justice Asha Menon, the panel has written to the Ministry of Social Justice and Empowerment regarding the violation of the rights of the community. The panel has requested a reconsideration of the amendment. 

CONCLUSION

Alongside the battles faced in the legal forum, the transgender community battles with social stigma in all spaces they are in, be it in healthcare, education, or formal employment; they face immense discrimination. The way ahead lies in attempting to erase the discord between the parliament and the Supreme Court’s NALSA judgment, as this will be the way to recover from the setback the amendment has brought to the trajectory of progress made thus far.

The SC-appointed panel paves the way for talks, which could help resolve the dispute at hand. Hence, the demand is not just for a legal reform, it is not a constitutional promise of dignity, equality and autonomy.

---

BY VIJAYLAXMI D.

CENTRE FOR POLITICS AND LAW

TEAM GEOSTRATA

info@thegeostrata.com