Navigating legal hurdles: Struggles of India’s transgender community

As Transgender Awareness Week begins, despite being in one of the most open societies and numerous legal measures to boost inclusivity, Indian transgender community continues to struggle in face of poor implementation of these laws and also have poor access to welfare schemes of the government.

Despite legal advancements aimed at protecting transgender rights in India, many continue to face deep-rooted challenges. While laws have been enacted, the reality remains stark marginalisation, lack of proper identity recognition, and limited access to welfare persist. The gap between legal progress and social acceptance underscores the ongoing struggle for true equality and dignity.

In India, while awareness about transgender rights has grown over the years and the community has been a part of the society for centuries, transgenders’ journey remains a tale of stark contrasts mix of progress and persistent social challenges.

The transgender community often referred to as the hijras, a term encompassing various identities, has historically faced ostracisation, discrimination and violence. Despite being a part of Indian culture for centuries, their struggle for equality and acceptance continues to this day.

“There is a perception that we do not belong, that we are outcasts. The world sees us as less human, a perception we have been fighting to change,” Arnavi Sharma, a transgender activist from Delhi, tells Media India Group.

The lack of adequate healthcare, education, and employment opportunities are just some of the systemic issues transgender people face daily. The stigma is often compounded by the difficulty in changing their gender on official documents, which hinders access to basic services. Transgender persons also frequently encounter violence, ranging from physical assault to verbal abuse. The transphobia is so deeply ingrained in society that even the family structures that are supposed to offer comfort often become places of rejection.

While landmark judgments and laws have created a legal framework for the transgender community, the reality on the ground is often starkly different. Transgender people continue to face immense hurdles, from social stigma to legal barriers that prevent them from fully accessing their rights. Despite the Transgender Persons (Protection of Rights) Act, 2019, which aims to safeguard their rights, significant gaps persist in India’s legal landscape, leaving transgender individuals vulnerable to discrimination, exclusion, and violence.

Cumbersome Self-Identification Process

One of the most significant hurdles faced by transgender individuals in India is the self-identification process. The Transgender Persons (Protection of Rights) Act mandates that transgender people go through a laborious process of self-identification. This involves submitting documents and making an appearance before a magistrate, a requirement that can be both intimidating and discouraging. For many transgender people, this process is not just a legal formality it is an emotional and psychological burden.

Choudhary Ali Zia Kabir, a Human Rights advocate in Delhi, speaks passionately about the struggles transgender individuals face while navigating India’s legal system. Kabir says that forcing the transgenders to appear before a magistrate undermines the essence of the NALSA judgment and adds unnecessary distress to the lives of transgender individuals.

“The current self-identification process for transgender people defeats the very purpose of the NALSA judgment. Requiring trans individuals to submit documents and appear before a magistrate is not only cumbersome but also deeply distressing. As a society, we know that ordinary people avoid going to magistrates, now imagine the added anxiety a trans person experiences in that situation, dealing with societal discrimination and stigma. The solution is simple: the process should be handled by an officer, ideally a trans person, rather than a magistrate. Better still, it could be done entirely online. The fear of people falsely identifying as trans is unfounded; there is no concrete evidence, only unverified anecdotal stories. No one would voluntarily choose to live a life filled with discrimination and hardships just to make a false claim about their identity,” Kabir tells Media India Group.

The self-identification process for transgender individuals in India remains a major hurdle, often causing unnecessary stress and fear. Kabir stresses the need for reform, advocating for a more compassionate and streamlined approach.

Restrictive Gender Identification and Welfare Access

The Transgender Persons (Protection of Rights) Act, 2019 offers transgender people the legal right to identify as a “transgender person.” However, it falls short by not allowing them to identify as a “man” or a “woman” unless they have undergone costly and often inaccessible Sex Reassignment Surgery (SRS). This exclusion means that many transgender people are denied access to government schemes and welfare measures available to women, leaving them in a precarious position.

“The current law forces transgender individuals to identify solely as ‘transgender,’ not allowing them to identify as a ‘man’ or a ‘woman’ unless they undergo costly and often inaccessible Sex Reassignment Surgery (SRS). This exclusion not only limits their personal identity but also leaves them outside the scope of critical government welfare programs meant for women. To ensure true recognition and equality, Section 4 should be amended to allow transgender individuals to identify as a ‘man’ or a ‘woman’ based on their own identity, not just on medical procedures or evidence,” Kabir adds.

Outdated Inheritance and Adoption Laws

India’s inheritance and adoption laws also pose significant challenges for transgender individuals. These laws are still largely based on a binary understanding of gender, which leaves transgender people in a legal limbo. For instance, transgender individuals often find themselves ineligible for inheritance or adoption rights unless they choose to identify as either a man or a woman, further marginalising their existence.

“I remember a case where Ranjita Sinha, a transgender woman in West Bengal, was unable to claim her deceased father’s pension because she couldn’t fit into the rigid boxes of ‘man’ or ‘woman’. It is not just about pensions or money. It is about recognition. Prithika Yashini, the first transgender Sub-Inspector in India, faced a similar struggle with adoption rights. She was denied the right to adopt a child until the Madras High Court intervened. And now, the same court is deciding whether she can adopt a child, as authorities continue to insist she identify as either a man or a woman. These are human beings, why are their identities so rigidly confined by outdated laws,” says Kabir.

He adds that another critical issue is the lack of legal protections against rape and sexual assault for transgender individuals.

“The current legal framework around rape fails to protect transgender individuals adequately. Under Section 375 IPC, rape is defined in terms of ‘a man’ and ‘a woman,’ excluding transgender people from the protection they need. Although Section 377 IPC had offered some protection by covering ‘carnal intercourse against the order of nature,’ the new replacement code, BNS, completely removes this provision, leaving trans people vulnerable. To address this, rape laws must be made gender-neutral. Courts should also be cautious, ensuring the laws are not misused, but we cannot ignore the need for trans-inclusive legal protections,” Kabir adds.

Transgenders say that that their marginalisation has forced them to live in isolation, dependent on begging or sex work for survival.

“The current legal framework continues to marginalise transgender individuals by forcing us into a binary understanding of gender. Inheritance laws, for example, are based on these rigid categories of ‘man’ and ‘woman.’ When a transgender person doesn’t fit into either of these labels, we are denied fundamental rights, such as inheritance, which should be granted based on our identity, not how society or the law chooses to define us. This exclusion not only harms us financially but strips us of our dignity and recognition as rightful members of society. These laws need to evolve to truly reflect the diversity of human identities and offer transgender individuals the same rights and respect as everyone else,” says transgender activist Sharma.