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  • Writer's pictureIRALR


This blog is authored by Samayra Adalkha, a first year law student at NALSAR University

The Central government, in an affidavit responding to a petition in the Delhi High Court, stated that there is no fundamental right to same sex marriages recognised by the laws of the country. One wonders what, then, is the “equal protection of the laws” the state claims to offer? This calls for the need to revisit some other provisions which, in the name of protecting the transgender community, have placed them in a highly precarious position.

Justice Indu Malhotra while decriminalising homosexuality stated that, “History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries”. However, the delay seems to continue like forever.

The “legitimate state interest in limiting the legal recognition of marriage to opposite sexes only” comes at the cost of legal rights in domains of taxation, insurance, adoption, succession and maintenance benefits which are unavailable to couples not legally recognised as married. For instance, the Central Adoption Resource Authority, allows only married couples to adopt a child together and thus, excludes the LGBTQIA+ community. Also, The Surrogacy (Regulation) Bill, 2019 is restrictive in the sense of permitting only married Indian couples to have their own children through a surrogate mother. Therefore, the denial of the fundamental right to marry to same sex couples comes with multiple inherent biases.

Laws Preventing Sexual Abuse against Transgender Individuals

Section 2(1)(d) of the Protection of Children from Sexual Offences Act (POCSO) defines a “child” as any person below the age of 18 years. Therefore, the Act provides protection to cisgender as well as transgender minors from sexual abuse and harassment. However, in the case of adults, the provisions are different for members of the trans community.

Section 376 of the Indian Penal Code provides for a punishment of rigorous imprisonment of minimum 10 years to any man who commits the act of rape against a woman. But this provision does not include trans women under its ambit. The offence of sexual abuse against the transgender community is punishable under The Transgender Persons (Protection of Rights) Act, 2019. The insensitivity towards the gravity of the offence is highlighted by the stark contrast in the punishments as compared to those in the IPC. The relevant section states that, “...physical abuse, sexual abuse, verbal and emotional abuse and economic abuse, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine”.

This has the effect of ignoring and playing down the experience of the same offence when committed against a person who does not fit within the category of a “biological woman”. This is in contravention of the guarantee of equal protection of law given by Article 14 as well as prohibition of discrimination on the basis of sex as provided by Article 15 of the Indian Constitution. Discrepancies like these defeat the whole purpose of recognition of the transgender community as the “third gender” and affirmation of equal applicability of fundamental rights as held by the court in NALSA v Union of India.

These provisions are in utter disregard of the human rights obligations towards the LGBTQIA+ persons as laid down by the United Nations Human Rights Commission. These include protection of individuals from homophobic and transphobic violence and preventing torture and cruelty, inhuman and degrading treatment towards the community, etc. The marginalisation of the community and the stigma attached to homosexuality puts the group at a higher risk of sexual violence and abuse. A study by the Centers for Disease Control and Prevention shows that lesbian, gay and bisexual individuals experience sexual violence at a similar or higher rate than straight people. The perpetrator must be punished taking into consideration the seriousness of the crime, and not who the victim is.

Another study conducted by the National Institute of Epidemiology reveals that the largest offenders of violence against transgender people are police officials and law enforcement agencies. That is why many crimes against the non- cisgender people go unreported as the fear of not being believed and being subjected to another crime runs high. One solution to this could be a higher number of recruitments of people belonging to the transgender community in the state institutions. In a recent progressive measure, the Chhattisgarh police have hired 13 transgender people as constables. This will enable these officials to not only empathize with the experiences of the victims of abuse, but also provide a conducive environment for the trans individuals to come forward and report the offences committed against them.

Another issue which often misses the public-eye is the absence of necessary facilities for transgender prisoners. The Prisons Act, 1894 provides for separate blocks for male and female prisoners but makes no mention of people not conforming to the binary. Hence, they are lodged in either male or female prisons and left to the mercy of the inmates. Reports suggest that they are highly likely to face sexual harassment in the prisons. Currently, only the state of Kerala has separate prisons for accommodating the transgender prisoners.

There is not even sufficient data on the number of transgender prisoners incarcerated in Indian jails. The training manuals of most prisons are marked by the distinct absence of any heed to be paid to the special needs of the prisoners belonging to the LGBTQIA+ community.

It is high time we, as a progressive society, recognise the promise of being able to live with dignity made to the transgender individuals during the Navtej Singh Johar judgment. This decision is noteworthy not only for the result it led to, but also for the manner in which the Honorable Court decided to take upon the task of bringing an end to the prevalent homophobic attitude. Then CJI Dipak Misra very eloquently noted that, “The very purpose of the fundamental rights chapter in the Constitution of India is to withdraw the subject of liberty and dignity of the individual and place such subject beyond the reach of majoritarian governments so that constitutional morality can be applied by this Court to give effect to the rights, among others, of 'discrete and insular' minorities.”. In the absence of an encouraging response from the government, all eyes shift to the court to make good its assertion of not sitting as a “mute spectator and wait for a majoritarian government to bring about a change.”

Ideally, the accommodation of the needs, desires and voices of every human is something which need not be demanded. Recognition of one’s identity, along with acceptance, is a bare minimum for which people should not be struggling in the 21st century. It becomes highly imperative that the LGBTQIA+ community is consulted and made a part of the discourse at least in those areas of policy making where members of the community are major stakeholders.

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