Transgender Rights and Women’s Protections

Syllabus: GS1/ Society; GS2/ Social Justice

Context

• Recently, the Supreme Court sought the Centre’s response on a PIL by a women’s organisation. It argues that the regulatory regime built after NALSA v. Union of India (2014) harms “biological females”.

Key Features of the NALSA Regime

• Judicial foundation: NALSA recognised transgender persons as a “third gender”. It held that gender identity is integral to dignity and autonomy under Article 21, and that “sex” in Articles 15 and 16 includes gender identity.
• Self-identification: The Court upheld the right to self-determine gender, irrespective of surgery.
• Affirmative action: Centre and States were told to treat transgender persons as socially and educationally backward classes, and to run welfare schemes.
• Statutory framework: The Transgender Persons (Protection of Rights) Act, 2019 defines transgender persons, provides for a certificate of identity issued by the District Magistrate, and creates a National Council for Transgender Persons.

Concerns Raised by the Petitioners

• Dilution of sex based protections: Laws on workplace harassment, domestic violence and sexual offences were drafted around the female body and women’s vulnerability. A widening category could blur their scope.
• Reservation overlap: The Women’s Reservation Act, 2023 reserves one-third of seats for women. Critics argue that identity based claims could compete with biological women for such seats.
• Single sex spaces and sports: Prisons, shelters, hostels, washrooms and women’s sports rest on privacy and safety. International sporting bodies have tightened eligibility rules citing fairness.
• Weak verification: Self identification without medical or objective checks may invite misuse, as the benefits attached to gender status grow.
• Legislative vacuum: Courts expanded rights through interpretation, while Parliament did not resolve the overlap between women’s and transgender entitlements.

Counter View: Why the Regime Matters?

• Constitutional morality: Navtej Johar (2018) and Puttaswamy (2017) affirm identity and privacy as core liberties. Dignity cannot depend on biology alone.
• Evidence of exclusion: Transgender persons face high rates of school dropout, joblessness and violence. The 2011 Census counted about 4.8 lakh transgender persons, and activists consider this an undercount.
• Implementation gap: The NALSA direction on reservation remains largely unimplemented. Many States have weak Transgender Welfare Boards.
• Equal protection: Section 18 of the 2019 Act prescribes only six months to two years of imprisonment for sexual abuse of a transgender person. This is far lower than the penalty for similar offences against women, so the existing framework is itself unequal.
• Process criticism: Critics say the District Magistrate certification and the surgery linked revised certificate contradict NALSA’s self identification principle.

International Developments

• United Kingdom: In For Women Scotland Ltd. v. The Scottish Ministers (2025), the UK Supreme Court held that the terms ‘woman’ and ‘sex’ under the Equality Act 2010 refer to biological sex.
• United States: Recent judicial developments have addressed the use of biological sex as a basis for eligibility in women’s sports categories.

Way Ahead

• Balancing constitutional rights: Policies should protect the dignity and equality of transgender persons while addressing legitimate concerns relating to women’s rights and safety.
• Context-specific approach: Issues relating to sports, institutional accommodation and public facilities may require separate rules based on their specific requirements.
• Stakeholder consultation: The government should involve women’s organisations, transgender communities, legal experts and other stakeholders in framing policies.

Source: TH