Realising the promise of legal inclusion of transgender persons in NALSA

Mx. Muskan Tibrewala

We have a long way to go to ensure complete equality for transgender persons in society and the legal system. However, with the promise of NALSA and the protections under the Constitution of India – it is possible to start on the path to achieve it. By ensuring the inclusion of transgender persons in law we take a small but decisive step towards equality for transgender persons.

1. Gender in legislation

Laws that apply to men, apply to everyone. In law, the masculine gender is the “universal” he. This is the sum and substance of the masculine rule which is codified under section 13(1) of the General Clauses Act, 1977.

“13. Gender and number.— In all Acts and Regulations unless there is anything repugnant in the subject or context,— (1) words importing the masculine gender shall be taken to include females; …”

There is a similar provision in the Indian Penal Code, 1860, Section 8, which clarifies that the pronoun ‘he’ and its derivatives are used of any person, whether male or female. Further Section 10 states that “the word “man” denotes a male human being of any age” and “the word “woman” denotes a female human being of any age”. Interestingly, the Hindu Succession Act enacted in 1956, in Section 3(2) provides for an inversion of the rule under Section 13. It states that “unless the context otherwise requires, words importing the masculine gender shall not be taken to include females”.

These are interpretative clauses, that trace their origins back to the 1850 Interpretation Act in England called Lord Brougham’s Act. The rationale behind the masculine rule is that it helps avoid superfluousness and repetition in drafting.[1] Therefore when provisions apply to exclusively to women, the law explicitly mentions women and uses feminine pronouns. The general disqualification of its applicability, “unless there is anything repugnant in the subject or context” ensures that if there is a provision exclusively for men, women cannot take advantage of it. This is the general scheme of how gender is used in legislative drafting.

Laws should apply equally to all persons. This is the essence of the rule of law and equality before law protected by the Constitution of India. However, the Constitution allows laws to apply differently for substantive equality. Therefore, under Article 15(3) the state may make special provisions for women. Hence laws are gendered, and in special cases apply differently for men and women.

2. Legal Recognition of Transgender Persons identities

Legislative drafting, and interpretative clauses in statutes , do not include transgender persons. This is true specifically for transgender non-binary persons (as transgender men and women come under the category of “men” and “women” although often only after significant medical and legal hurdles). A brief note on terms here. A person who does not identify as the gender they were assigned at birth is called a “transgender” person. A person who identifies with the gender they were assigned at birth is called a “cisgender” person. Gender assigned at birth is most commonly based on the biological sexual organs of a person. A person may identify within the binary i.e. man or woman. Or they may identify outside the binary (as both or none or otherwise) and therefore are called “non-binary”. The default in society and indeed law, has always been “cisgender” and “binary”.

Therefore, laws have only ever envisaged men and women, and used masculine and feminine terms. In 2014, the Supreme Court of India in NALSA v. Union of India (hereinafter “NALSA”) legally recognised the identity of transgender persons and “third gender” persons and gave several directions to the state to recognise the self-identified gender of transgender persons and take steps to ensure that they have full civil rights and inclusion in society. The Supreme Court used the word “third gender” to describe persons who identify as neither male nor female i.e. non-binary persons. Notably, the transgender community does not identify with this term and finds it derogatory as that it enforces a hierarchy of genders where non-binary persons are in the lowermost inferior rung.

In 2019, the Transgender Persons (Protection of Rights Act) 2019 (hereinafter “2019 Act”)  was enacted that defines transgender as follows:

“(k) “transgender person” means a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta”

This definition recognises transgender persons who identify within and outside the binary. It merits mention that the enactment has several issues and does not ensure equal access to the law for transgender persons[2] and is under challenge before the Supreme Court of India. Its provisions are directly contrary to fundamental rights protected under the Constitution of India and the directions given by the Supreme Court in NALSA.

The directions by the Supreme Court included the following:

“(1) Hijras, Eunuchs, apart from binary gender, be treated as “third gender” for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature.

(2) Transgender persons’ right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.”

Therefore, the Supreme Court specifically recognised that first, the rights of transgender non-binary persons have to be safeguarded under laws made by the Legislature and second, that legal recognition of transgender persons has to be recognised for all three categories – male, female and third gender. This is only possible if laws are all inclusive of all persons and apply to all persons equally. Not just in terms of formal equality, but also in terms of substantive equality. This means that special provisions must also apply to transgender persons. In NALSA, the Supreme Court also recognised that transgender persons have been historically discriminated against and require special provisions protected under Article 15 of the Constitution of India.

“54. Article 14 of the Constitution of India states that the State shall not deny to “any person” equality before the law or the equal protection of the laws within the territory of India. Equality includes the full and equal enjoyment of all rights and freedom. Right to equality has been declared as the basic feature of the Constitution and treatment of equals as unequals or equals will be violative of the basic structure of the Constitution. Article 14 of the Constitution also ensures equal protection and hence a positive obligation on the State to ensure equal protection of laws by bringing in necessary social and economic changes, so that everyone including TGs may enjoy equal protection of laws and nobody is denied such protection. Article 14 does not restrict the word “person” and its application only to male or female. Hiraj/transgender persons who are neither male/female fall within the expression “person” and, hence, entitled to legal protection of laws in all spheres of State activity, including employment, healthcare, education as well as equal civil and citizenship rights, as enjoyed by any other citizen of this country.

60. TGs have been systematically denied the rights under Article 15(2) that is not to be subjected to any disability, liability, restriction or condition in regard to access to public places. TGs have also not been afforded special provisions envisaged under Article 15(4) for advancement of the socially and educationally backward classes (SEBC) of citizens, which they are, and hence legally entitled and eligible to get the benefits of SEBC. State is bound to take some affirmative action for their advancement so that the injustice done to them for centuries could be remedied. TGs are also entitled to enjoy economic, social, cultural and political rights without discrimination, because forms of discrimination on the ground of gender are violative of fundamental freedoms and human rights

61. Articles 15(2) to (4) and Article 16(4) read with the Directive Principles of State Policy and various international instruments to which Indian is a party, call for social equality, which the TGs could realize, only if facilities and opportunities are extended to them so that they can also live with dignity and equal status with other genders.”

The Supreme Court in the above quoted paras recognised that transgender persons require special provisions by virtue of systematic and historical discrimination. This recognition is stated to be under Article 15(4) for Socially and Educationally Backward Classes (SEBC)/Other Backward Classes (OBC) which is generally a caste-based identity and in practice has raised further barriers for access of benefits and reservations for transgender persons. Therefore, the transgender community has been demanding horizontal reservations on the basis of gender (similar to that given to women under Article 15(3)) which recognises the intersectional nature of identities of transgender persons. [3] However, an application seeking clarification of the reservations provided for by the NALSA judgement was recently dismissed by the Supreme Court leaving other remedies open. [4]

3. Inclusion of Transgender Persons in Legislation

Amending gender interpretation provisions in law

Given the directions of the Supreme Court in NALSA to recognise transgender persons in laws made by the Parliament and State Legislature, and the imminent need for recognition of the transgender persons in law, the Centre and States may consider amending their respective General Clauses Act to include transgender persons in the interpretation clause for gender. The masculine (unless the context shows otherwise) should imply the feminine and transgender identities. This will ensure compliance with the Supreme Court’s directions and pave way for the explicit recognition of transgender identities in law. This was also recommended by Justice Satyanarayana Murthy of the Andhra Pradesh High Court in Matam Gangabhavani v. State of Andhra Pradesh:

“Though the Constitution provides reservation based on sex and social and educational backwardness in the appointments and admission into educational institutions as per Articles 15 & 16, but, the third gender is not recognized in the Constitution. Similarly, other laws including the General Clauses Act, 1977, did not recognize the third gender. Section 13(1) of the General Clauses Act, 1977, says that, in all Acts and Regulations unless there is anything repugnant in the subject or context, words importing the masculine gender shall be taken to include females. Similarly, Section 34 of Andhra Pradesh General Clauses Act, 1891, defined the word “Gender” importing the masculine gender shall include females. Even if the principles under the General Clauses Act, 1977 and Andhra Pradesh General Clauses Act, 1891 are applied, it excludes the third gender, as both the Acts refer to male and female only, but not third gender.”

Further, the Law Commission of Karnataka in its 41st report, as early as in 2015 recommended that Sections 8 and 10 Indian Penal Code, Section 13 of the General Clauses Act, 1897 and Section 13 of the Mysore General Clauses Act, 1899 be amended to include references to the “neuter gender”. The Commission finds that the term “third gender” used by the Supreme Court in NALSA may be restrictive. Their neuter gender is defined as “a human being of any age, who lacks functional or distinguishable male or female genital organ either due to congenital physiological defect or has emasculated male or female genital organ surgically or otherwise to be non-sex specific”.[5]

Addressing gendered legal provisions

Although amending section 13 of the General Clauses Act, 1897, the respective state enactments and the Indian Penal Code will ensure that all provisions that apply to men and women will also apply to transgender persons- it will not address a significant barrier that transgender persons face which is with respect to access and application of gendered provisions. It is with respect to such gendered provisions, that the importance of the inclusion of transgender persons in Article 15(3) of the Constitution recognising the gendered and intersectional nature of the discrimination transgender persons face becomes much more significant. Notably, the need to retain the gender specificity of provisions in marriage laws in order to ensure that transgender persons also have access to welfare laws and protections under Article 15(3) was argued by Advocate Karuna Nundy in the recent marriage equality hearings before the constitution bench of the Supreme Court of India. [6]

In 2019, a Pune sessions court ordered bail of four persons accused in a case of gang-rape of a 19 year old transgender person. Given that the provisions for rape under the Indian Penal Code (IPC) only recognise “women” as victims, the charges were under sections 377 (unnatural offences), 323 (punishment for voluntarily causing hurt), 504 (intentional insult with intent to provoke breach of peace) and 506 (punishment for criminal intimidation. [7] The Supreme Court in Navtej Singh Johar v. Union of India read down section 377 to remove out of its ambit consensual sexual intercourse. Therefore, this section should apply. However, even section 377 specifically states the victims to be “man, woman or animal”. The sessions court noting that the victim was of the “other” gender or “third gender” found that these provisions did not apply to the victim and granted the accused bail.

The lack of explicit exclusion of transgender persons in the law, and more specifically “non-binary” or “third gender” therefore, prevented conviction under both laws on rape and unnatural sex. Special provisions like rape, that apply only to women, must equally apply to transgender persons who are victim to the same, and often worse, violence and discrimination.  Notably, under Section 18 of the 2019 Act, sexual abuse against a transgender person is punishable with imprisonment of a term of minimum 6 months which may extend to six years. However, the punishment stipulated here is indignifying and discriminatory (being much lesser than the punishment under the Indian Penal Code, 1860).

In Sumita Kumari v State of West Bengal the Calcutta High Court held that the transgender Petitioner’s inability to identify as a man or a woman removed her from consideration for appointment or engagement as an ASHA Karmee (worker) because the memo for engagement specified that only a “woman” can be engaged as an Asha worker. The Calcutta High Court did not even consider that a whole category of gender that is not mentioned in law making and was only recognised in law in 2014 may not have factored into the memo for engagement of Asha workers. And that inability to identify within the binary cannot be a ground to deny inclusion in work that is reserved or specified for women.

Two candidates who self-identified as women, and as Hijras under law which is under the “third gender” or “non-binary category” in the 2019 Act were disqualified from elections to municipality posts in Madhya Pradesh because they won from the “women” reserved category. The first was  Kamla Jaan. In 2003, the Madhya Pradesh High Court in Kamala Alias Kamala Jaan Alias Hijrah v. Sadiq Ali & Others upheld the session court’s judgement which held that Kamla Jaan is biologically male and cannot be elected to office in a seat reserved for woman. The second candidate is Kamala Kinnar who was elected as mayor of Sagar town in 2009, but was ousted from her position after the Sagar district court ruled that her election was null and void because she did not belong to the “woman” category. [8]

It is important to note that NALSA has recognised the right of self-identification of gender and therefore, biological essentialism or lack of Sexual Re-assignment Surgery cannot be used post-2014 to deny benefits and privileges under the law for transgender men and transgender women. However, a lacunae is how the law addresses the “third gender” or the “non-binary” gender. Such inclusion gains more significance as under the 2019 Act change of gender to male or female under Section 7 is possible only after a medical certificate. Until then, or otherwise there is only the certificate of “transgender identity” under Section 6 of the Act.  

As explained above, this lacunae can be met by specifically including such persons under the ambit of the Section 13 of the General Clauses Act, and any other similar gender interpretation provisions under the law. However, there is a further layer of complication when it comes to gendered legal provisions. Under Article 15(3), in recognition of the gender discrimination and disadvantages of transgender persons special provisions for women (such as reservations, sexual crimes) should extend to transgender persons. Further, special provisions should also be legislated to address the specific disadvantages of transgender persons under the law.

The author is an advocate at the Supreme Court of India and an associate at the Chambers of Advocate Karuna Nundy. The author was part of the marriage equality hearings before the Supreme Court of India.

[1] Law Commission of India, 60th Report on the General Clauses Act, 1897, pg. 4 available at https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022080581.pdf (Last accessed on May 15, 2023).

[2] Kanmani Ray LR, “Transgender Act : Not Just Unconstitutional”, LiveLaw, available at https://www.livelaw.in/columns/trasgender-act-not-just-unconstitutional-159966) (Last accessed on May 15, 2023); G. Ram Mohan, “Halt Implementation of the Trans Act 2019: Activists”, The Wire, available at https://thewire.in/lgbtqia/trans-act-2019-rules-feedback-activists (Last accessed on May 15, 2023).

[3] Aishwarya Singh, “Horizontal Reservation for India’s Transgender Community: Can the Supreme Court Deliver?” Oxford Human Rights Hub, available at https://ohrh.law.ox.ac.uk/horizontal-reservation-for-indias-transgender-community-can-the-supreme-court-deliver/(Last accessed on May 15, 2023); Meenakshy Sasikumar, “Explained: Why Trans People Are Demanding Horizontal Reservation Across Castes” The Quint, available at https://www.thequint.com/explainers/trans-people-fight-for-horizontal-reservations-across-castes (Last accessed on May 15, 2023).

[4] “Horizontal Reservation For Transgender Persons : Supreme Court Refuses To Entertain Plea To Clarify NALSA Judgment” LiveLaw available at https://www.livelaw.in/top-stories/horizontal-reservation-for-transgender-persons-supreme-court-refuses-to-clarify-nalsa-judgment-224932 (Last accessed on May 15, 2023).

[5] Law Commission of Karnataka, 41st report on Paradigm of Binary Genders of Male and Female In Indian Law Needs to be enlarged to include Transgender Persons, available at https://lawcommission.karnataka.gov.in/storage/pdf-files/English%20Reports%20LCK/Report%20No-41.pdf (Last accessed on May 15, 2023).

[6] Kanav N Sahgal, ‘Explained: Advocate Karuna Nundy’s significant arguments on marriage equality’ Vidhi Centre for Legal Policy Blog, available at https://vidhilegalpolicy.in/blog/explained-advocate-karuna-nundys-significant-arguments-on-marriage-equality/ (Last accessed on May 16, 2023).

[7] Anupriya Chatterjee, ‘Loopholes in third gender law aid four rapists to get bail’, The Pune Mirror, available at https://punemirror.indiatimes.com/pune/civic/loopholes-in-third-gender-law-aid-4-rapists-to-get-bail/articleshow/59960595.cms (Last accessed on May 15, 2023); The Logical India, ‘Pune: Loopholes In Section 377 Enable Bail For Four Men Accused Of Raping Transgender Woman’, available at https://thelogicalindian.com/news/transgender-rape-accused-gets-bailed-loopholes-of-law/ (Last accessed on May 15, 2023).

[8] Suchandana Gupta, “Eunuch’s election as mayor annulled” Times of India, available at http://timesofindia.indiatimes.com/articleshow/11067274.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst (Last accessed on May 15, 2023).