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Transgender persons are legally recognised as the ‘third gender’/ ‘other’ gender in India.
In 2014, the Supreme Court officially declared ‘transgender’ as the ‘third gender’ in India (in the landmark judgment NALSA v Union of India).
In 2020, the Parliament passed the Transgender Persons (Protection of Rights) Act, 2019 (in short, ‘TPA’), which also officially recognizes ‘transgender’ as an official gender in India.
The TPA gives a very wide definition for transgender and covers all types of transgender persons:
Note: For a trans-individual, what matters is which gender identity you psychologically identify with. It does not matter whether or not you have undergone any kind of medical procedure to change your physical characters to match your chosen gender identity. (TPA, Section 2(k)- definition of transgender person).
Gender identity means the gender which the person chooses for themselves. You are assigned a gender (usually, either male or female) when you are born. If you don’t identify with the gender assigned to you at birth, you can choose to identify with any other gender.
Example 1- X was assigned the male gender at birth. X identifies as female. X can choose to gender identify as a female person.
Example 2- Y was assigned the female gender at birth. Y identifies as a transgender person. Y can choose to gender identify as a transgender person.
Yes, the law allows you to choose your gender identity.
The Supreme Court (in NALSA v Union of India, 2014) declared the right to choose one’s gender identity as part of a person’s fundamental right to freedom of speech and expression.
Further, the TPA also grants a transgender person the right to choose their gender identity.
No, you do not need to undergo any medical procedure/physical change to choose your gender identity. The law recognises your psychological right to choose your gender identity (i.e. choosing based on what you feel), and your physical characteristics do not affect your chosen gender identity.
The TPA prescribes the following procedure to officially record one’s gender identity as a transgender person:
Application for adults (above 18)- You need to make an application with the District Magistrate. The application consists of a form and some documents. You will need to obtain the exact details for your district, as the procedure may vary from district to district.
It is suggested to apply to the District Magistrate who has jurisdiction over the place where you stay, as it will be convenient for you.
After your application is successful, the District Magistrate will issue you an official Certificate of Identity as a Transgender Person.
Note: The TPA only provides for recognizing gender identity as a ‘transgender’ person. If you want to change your gender identity to male or female, you will have to identify as a ‘trans-male’ or ‘trans-female’ to be able to officially change your gender identity.
When you officially record your gender identity (by following the procedure above):
Whether or not you should officially record your gender identity is your choice. We have made a basic table of pros and cons for you, to help you choose:
|Recording your Gender Identity|
|You are officially recognised as a ‘transgender person.’||The process to apply for the certificate may be cumbersome and time-taking. You may also incur some expenses for the application.|
|You can avail all benefits available to transgender persons, such as reservation.||Once you obtain your certificate of identity, if you wish to change your gender again (by undergoing a medical procedure), you will have to re-apply to record the new gender. We have explained this procedure below.|
|Not Recording your Gender Identity|
|If you change your mind about your gender identity later, you will not be bound by any documents and can do so easily.||The gender identity chosen by you will not be recognised legally. Your official gender will be the gender assigned to you at birth.|
|You can avail benefits available to persons of the gender assigned to you at birth.||You cannot avail the benefits available to transgender persons, such as reservation.|
If you want to change your gender after obtaining your Certificate of Identity, by undergoing a surgery, then you will need to follow the procedure given below:
Note: You need to do this only if you undergo a surgery to physically alter your gender.
Yes, there are several laws which protect the rights of transgender persons in India. We have listed them below:
Constitution of India:
Transgender Persons (Protection of Rights) Act: This law, which was passed in 2020, gives you various rights. We have listed them in the questions below.
‘SC/ST Prevention of Atrocities Act’ and ‘Protection of Civil Rights Act’: If you fall under the Scheduled Caste or Scheduled Tribe category, then these laws protect you from any kind of discrimination based on your caste.
NALSA Judgment: In addition to the above laws, the landmark Supreme Court judgment of NALSA v Union of India also states that transgender persons have the right to choose their gender identity and live a life of dignity.
The TPA gives you a combination of rights. We have listed them below:
Note- Unfortunately, though the law grants transgender persons abundant rights on paper, and prohibits discrimination against them in every sphere, in reality, the implementation of the law is very poor. Therefore, the practicality of the law may be very different.
The TPA makes any kind of psychological or emotional abuse against a transgender person illegal (Section 18). Therefore, if someone calls you names to insult you as a transgender person, this will fall under psychological/emotional abuse and will be illegal.
The TPA makes it illegal for a family to throw a transgender child out of the house or discriminate against the child. As a transgender person, you have the right to:
If a family does not wish to have a transgender child in the house, they will have to apply to the court (mostly, a Magistrate court) to pass an order placing the child in a rehabilitation centre.
The TPA makes it illegal for anyone to separate a transgender person from their family or remove them from their house, community, or village. Anyone trying to do so can be punished with imprisonment of 6months-1 year.
Yes, transgender persons have the right to marry in India, just like any other person. However, according to law, you can only marry a person of the opposite gender. Therefore, you will be permitted to marry someone of an opposite gender from your gender identity. We have explained this below:
If your partner is of the same gender as yours, you will have to stay in a live-in relationship with them, as Indian law does not recognise same-sex marriage.
Which law can you marry under?
You can either get married under your personal religious laws (for ex- Hindu Marriage Act) or under the Special Marriage Act, 1954. To understand further, see our section on Marriage and Divorce.
Yes, if your marriage is a legally valid marriage than you can get divorced. The same law under which you got married will also apply to your divorce.
If you are in a live-in relationship with your partner, you will not need to get divorced. You can end the relationship without any legal formality.
If you identify as a transgender woman, and your spouse or live-in partner is harassing you in any way (whether physical, psychological, sexual, or financial), you will be protected under the Domestic Violence Act. To understand further, please refer to our section on Domestic Violence.
Yes, you have the full right to access all public spaces which are available for people to use in general. The TPA makes it illegal for anyone to stop a transgender person from accessing/using any public space (including public transport).
Yes, you have the right to contest elections or take up any public post just like any other person, without any discrimination. As explained above, the TPA makes it illegal to discriminate against transgender persons for the same.
Yes, each and every person in India who is older than 18 years has the right to vote. You will have to register like any other person to vote. The registration form has the option of ‘other’ under the category of gender.
Yes, the following laws protect transgender persons against sexual harassment:
Note: For any sexual crime against a transgender person, you will have all the above remedies, and you can use them simultaneously. The maximum punishment prescribed in the Indian Penal Code is much higher than the maximum punishment prescribed in the TPA (only 2 years). This contradiction in the punishments prescribed by law makes an important part of the criticism by the transgender community against the TPA.
Please note: This information has been made available to you for your benefit on an ‘as is’ basis, and is only for your information. It does not constitute legal advice and cannot substitute professional legal advice. Our disclaimer policy can be viewed here ( disclaimer policy)