INTRODUCTION: WHO IS TRANSGENDER OR THIRD GENDER?
The Third gender, encompassing transgender individuals, hijras, and other non-binary individuals, represents a distinct category recognised in India.[1] This community faces unique challenges and crimes, often stemming from societal norms and a lack of understanding. The classification of third gender individuals includes hijras, who are born male but identify as female or non-binary; Kothi’s, who are born male and exhibit feminine traits; transwomen, who are born male and transition to female; and intersex individuals, who are born with physical characteristics that don’t fit typical male/female definitions.
They faced multiple crimes and challenges in the third gender community regularly. They are often subjected to harassment and violence, including physical and emotional abuse, which can lead to social exclusion and mental health issues. Many are forced into begging and sex work due to a lack of employment opportunities, further exacerbating their vulnerability. The community also faces significant barriers in accessing healthcare and education, with inadequate medical facilities and social stigma hindering their ability to seek help.
To address these challenges, the Indian government enacted the ‘Transgender Persons (Protection of Rights) Act 2019’[2]. This legislation prohibits discrimination in employment, education, and healthcare, and provides for welfare measures, including skill development and rehabilitation programs.
In India, these transgender people mainly fall under the term of Hijras/Kinnars. Other socio-cultural groups may include Shiv-Shakti, Jogta, Jog-Appa, Aaradhi, Sakhi, etc., who also belong to this third gender identity. India’s most recent census conducted the first official count of transgender people, and the result was more than 4,90,000 people.
CRIMES AND DISCRIMINATION FACED BY THE THIRD GENDER PEOPLE
Throughout history, third gender individuals have been subjected to persecution and marginalisation worldwide, facing unimaginable hardships due to their unique identity. The discrimination they face is multifaceted, with many struggling to access necessities like shelter, medical facilities, and education. They are often denied entry to public places, and their rights to marriage and adaptation are frequently contested. The crimes committed against them are alarming, with sexual and physical assaults being a grim reality. These individuals are often falsely accused of obscene crimes, further exacerbating their vulnerability. The lack of acceptance and understanding has led to a cycle of violence and exclusion, pushing many to the fringes of society. The absence of adequate legal protection and social support leaves them exposed to exploitation and abuse. Despite these challenges, many third gender individuals have shown remarkable resilience and courage, fighting for their rights and challenging societal norms. Efforts to raise awareness and promote inclusivity are underway, aiming to create a more compassionate and equitable society for all, regardless of gender identity.
CHALLENGES FACED BY THE THIRD GENDER COMMUNITY
The third gender community faces numerous challenges that hinder their social, economic, and personal growth. Some of the key challenges are –
Social Exclusion and Stigma: Social exclusion and stigma are major challenges faced by the third gender community[3], often beginning within their own families and extending into society at large. Many individuals are ostracised by their families and communities due to rigid gender norms, leading to isolation, emotional distress, and a lack of support systems. This exclusion makes it difficult for them to form and maintain meaningful relationships, as they frequently encounter rejection, misunderstanding, or discrimination in both personal and social spaces. Additionally, stigma and stereotypes perpetuated by media and societal norms further reinforce negative perceptions, often portraying them in a derogatory or insensitive manner. Such representations contribute to widespread prejudice, limiting their acceptance and participation in society, and ultimately affecting their confidence, mental well-being, and overall quality of life.
Lack of Access to Education and Employment: Lack of access to education and employment is a significant barrier for the third gender community, severely limiting their opportunities for growth and stability. Many individuals face restricted access to education due to discrimination, bullying, or exclusion in schools, which often forces them to drop out early and results in poor job prospects later in life. Even when they acquire education or vocational skills, discrimination in the workplace remains a major issue, with employers often unwilling to hire them or subjecting them to unfair treatment, leading to low-paying jobs or unemployment. Furthermore, there is a persistent lack of recognition of their qualifications and abilities, as their identity often overshadows their competence. This combination of educational disadvantage and workplace bias contributes to economic insecurity and prevents many from achieving financial independence and dignity.
Healthcare Challenges: The third gender community faces serious healthcare challenges[4] that affect their physical and mental well-being. Inadequate access to medical facilities and healthcare services remains a major issue, as many are either denied treatment or lack the financial means to afford proper care. This problem is worsened by stigma and discrimination from healthcare providers, who may display insensitivity, lack of awareness, or outright prejudice, discouraging individuals from seeking medical help. Additionally, there is limited access to hormone replacement therapy and other essential treatments related to gender transition, which are often expensive, unavailable, or unregulated, thereby compromising their right to proper healthcare and dignity.
Violence and Harassment: Violence and harassment are harsh realities in the lives of many third gender individuals. They frequently experience physical and emotional abuse, including sexual assault, both in public and private spaces. Instances of police harassment and brutality further intensify their vulnerability, as those meant to protect them often become perpetrators of discrimination. Moreover, there is a widespread lack of faith in the justice system, as many victims feel that their complaints will not be taken seriously or may lead to further victimisation, resulting in significant underreporting of crimes and continued cycles of abuse.
Lack of Legal Recognition and Protection: Despite some legal progress, the third gender community continues to struggle with inadequate legal recognition and protection. Many individuals face difficulty in obtaining identity documents that accurately reflect their gender, which creates obstacles in accessing basic rights and services. There is also limited legal protection against discrimination and violence, as existing laws are either insufficient or poorly implemented. Furthermore, the lack of representation of third gender individuals in policy-making and decision-making processes means that their concerns are often overlooked, preventing the development of inclusive and effective legal frameworks.
Poverty and Economic Marginalisation: Poverty and economic marginalisation are deeply rooted issues within the third gender community. Due to limited access to economic opportunities, many individuals are unable to secure stable and dignified employment, leading to widespread poverty. As a result, some are forced into begging, sex work, or other exploitative situations as a means of survival. This economic exclusion is further compounded by a lack of access to financial services and resources, such as banking, credit, and government welfare schemes, making it even more difficult for them to achieve financial independence and break free from the cycle of marginalisation. These challenges are interconnected and can exacerbate each other, making it even more difficult for individuals to escape the cycle of marginalisation.
PROTECTION RIGHTS FOR THE THIRD GENDER
The Transgender Persons (Protection of Rights) Act 2019: It includes provisions to protect transgender individuals from various forms of abuse and exploitation.[5] Specifically, Section 18 outlines offences and penalties, including:
- Forcing a transgender person into bonded labour, which is punishable under Section 18(a).
- Physical, sexual, verbal, or economic abuse of a transgender person is punishable with imprisonment ranging from 6 months to 2 years and a fine, as stated in Section 18(d).
The Transgender Persons (Protection of Rights) Act, 2019, has been criticised for having less severe punishments for abuse against transgender individuals compared to similar crimes against women. For instance, the Act prescribes 6 months to 2 years imprisonment and a fine for physical, sexual, verbal, or economic abuse of transgender persons (Section 18(d)). In contrast, previously in the Indian Penal Code (IPC)[6] & now in Bharatiya Nyaya Sanhita (BNS)[7], there are provisions for more stringent punishments for similar crimes against women, such as up to life imprisonment or even the death penalty in extreme cases.
The Indian Constitution[8] has several articles that are relevant to the rights of transgender individuals:
- Article 14: Right to equality, ensuring equal protection under the law.
- Article 15: Prohibition of discrimination on grounds of sex, which includes gender identity.
- Article 16: Equality of opportunity in public employment.
- Article 21: Right to life and personal liberty, including dignity and autonomy.
- Article 23: Prohibition of human trafficking and forced labour.
CASE STUDY
The National Legal Services Authority (NALSA) v Union of India (2014) –
Facts: The petition was filed by the National Legal Services Authority (NALSA) along with transgender activists, highlighting the severe discrimination and social exclusion faced by transgender persons in India. The petitioners argued that transgender individuals were denied basic rights such as education, employment, healthcare, and legal recognition of their gender identity. Due to the absence of proper legal status, they were often deprived of fundamental rights guaranteed under the Constitution and subjected to widespread stigma and marginalisation.[9]
Issues:
- Whether transgender persons have the right to be legally recognised as a “third gender.”
- Whether the non-recognition of their gender identity violates their fundamental rights under the Indian Constitution.
Judgment: The Supreme Court delivered a landmark judgment recognising transgender persons as the “third gender” and affirmed that they are entitled to all fundamental rights under the Constitution. The Court held that the right to self-identify one’s gender is an essential part of personal autonomy and dignity under Article 21. It further ruled that Articles 14, 15, and 16 apply equally to transgender persons, and discrimination based on gender identity is unconstitutional.
CONCLUSION
Despite India’s progress, the third gender community continues to face significant challenges in accessing equal rights and dignity. We must acknowledge their struggles and work towards creating an inclusive environment that ensures their safety, well-being, and protection. The government must effectively enforce existing laws and protection acts, such as the Transgender Persons (Protection of Rights) Act, 2019, to safeguard their rights. Equality, as enshrined in the Indian Constitution, is a fundamental right that must be upheld for all individuals, regardless of their gender identity. Moreover, awareness and sensitisation campaigns can help dispel misconceptions and foster acceptance, allowing the third gender community to live with dignity and respect. By working together, we can create a society that values and respects the dignity of all individuals. The need of the hour is to ensure that the third gender community receives the rights and respect they deserve, and it is only through collective efforts that we can achieve this goal.
Author: Sourishree Bakundi (Calcutta University)
References:
[1] Primary Census Abstract: Transgender Population (Office of the Registrar General & Census Commissioner 2011)
[2] Transgender Persons (Protection of Rights) Act 2019, ss 3–15
[3] Hijras/Transgender People in India: HIV, Human Rights and Social Exclusion (United Nations Development Programme 2010)
[4] National Crime Records Bureau, Crime in India 2024 (Ministry of Home Affairs 2026)
[5] Transgender Persons (Protection of Rights) Act 2019, s 18
[6] Indian Penal Code 1860
[7] Bhartiya Nyaya Sanhita 2023
[8] Constitution of India 1950, arts 14, 15, 16, 21 and 23
[9] National Legal Services Authority v Union of India and Ors (2014) 5 SCC 438
