Breaking the Binary: Legal and Social Recognition of Non-Binary and Transgender Rights in India

Sneha Chakraborty

Introduction

Even as transgender and non-binary people have been a part of the social fabric and cultural history of India, their rights have always been obscured by the eyes of the law. Bal (2020) had stated how the transgender population has been at the forefront of discrimination, whether it be from the State, civil society, or even legal institutions. Till the judgment emerged from the National Legal Services Authority vs The Union of India in 2014, transgender people were not even recognized within the sovereign borders of our nation. According to the 2011 census, the country has a staggering population of 480,000 transgender people, who until the historic NLSA vs The Union of India judgement, did not have any legal rights.

While this judgement provided the transgender and non-binary people legal rights in India, and they came to be defined under the “third gender” category, public perception had hardly changed (Videh, 2022). The transgender population in the country still had to fight for their basic rights to be provided and to be treated fairly with other citizens in the country, as prescribed in the Fundamental Rights in the Constitution. Thus, when the Transgender Persons Protection of Rights Bill was introduced in the Lok Sabha by the NDA government in 2016 – there was a wave of hope, pride, and joy that a new age shall be dawning in the country, where every citizen irrespective of their gender shall be receiving fair and equal treatment. Even as this Bill, which became an Act in 2019 after several rounds of deliberation in Parliament, can be regarded as one of the first in independent India to chronicle the legal and social rights of the transgender population, the Act had several legal loopholes. It is believed by certain legal practitioners, LGBTQ+ activists, and civil society members that some of these provisions might endanger the rights of transgender people even more (Bhattacharya, Ghosh, and Purkayastha, 2022).

Even as these concerns are still raging in the academic and legal circles, the 2014 Supreme Court Judgement and the 2019 Act are stepping stones to provide legal rights and social recognition to a group of people who have been historically marginalized and systematically stripped of their rights. The larger Indian milieu and the legal institutions have, since the time of British imperialism, denied the basic human rights to non-binary and transgender people. With the institutionalization of this Act, they will be entitled to certain advantages, particularly in the domains of health, education, and employment (Farooq, 2024). While accessibility to health services is a requirement for every citizen in the country for healthy functioning, it is only through education and employment that transgender and non-binary individuals shall be able to uplift themselves socially and economically.

Positioning Within Queer Legal Theory

The queer legal theory is not simply a theory but a movement in its own right. Queer legal theory does not critique the concept of law, but rather asks for a radical redefinition of how law has been envisioned (Valdes, 1995). The transition of queer legal theory has been marked by its journey from queer cultural politics surrounding the Stonewall Riots of 1969 to a concerted effort by queer individuals to raise community consciousness and awareness regarding the dearth of queer discourse in legal matters. In recent years an explosion of queer cultural consciousness has led to the birth of queer legal theory, but it is not an independent theory per say. It cannot be considered as a separate legal theory or genre in itself but it provides a comprehensive structure on how one should view and try to elevate the rights of sexual minorities. Queer legal theory works as a blueprint to provide the wider society with a picture of how it might work if it is able to dismantle heteronormativity. Thus positioning the Transgender Persons Protection of Rights Act under the ambit of queer legal theory does highlight the several gaps that it has with regard to what they promise to provide and what they actually provide.

Legal Framework

The Transgender Persons Protection of Rights Act had come to be passed in the Indian Parliament on the 5th of August, 2019, after several rounds of deliberation, debates, and opposition in the Parliament and civil circles (Mishra, 2024). While this Bill can be regarded as amongst the first in independent India to chronicle the rights and redressal grievance mechanisms for the transgender population, it was the Supreme Court’s historic judgement in 2014 that laid the groundwork for the recognition of the rights of transgender people. The landmark judgment of National Legal Services Authority vs The Union of India stated that transgender people have the right to self-identify themselves as a transgender or non-binary person (NALSA v. Union of India, (2014) 5 SCC 438). Along with that, they also have reservations in the sphere of employment and education so that they are able to empower themselves socially.

After this Judgement, the Transgender Persons (Protection of Rights) Act in 2019 paved the way for the documentation of rights and redressal grievances for transgender and non-binary people. The Act was heavily criticized, though, for stating that the District Magistrate shall provide a medical certificate to the transgender person stating whether or not they are transgender (Videh, 2022). This systematically contravenes the 2014 Judgement, while also opening avenues for discrimination and harassment against the transgender population. This certificate can only be provided by the District Magistrate, thus leaving non-binary individuals in a legal grey area. Non-binary individuals do not align with any gender, but it does not mean that they will have undergone a sex reassignment surgery. In such cases, for them to receive a medical certificate from the District Magistrate can become difficult.

While the Transgender Persons (Protection of Rights) can be celebrated for laying down provisions for the upliftment and recognition of transgender people, there is very little discourse around non-binary people.

Legal Realities of Transgender Persons (Protection of Rights) Act: Promises or Paradox?

To properly understand how far the legal and social systems in the country have been able to break the binary of male and female, it is important to analyse the provisions enshrined in the Act regarding health, education and employment. While such provisions are in place in the Act, some of them contravene with the 2014 Supreme Court judgement. In any case, the recognition across these three domains of education, health and employment are discussed below.

Health: Inclusion and Systemic Loopholes

Chapter 4 of the Transgender Persons Act states that the respective governments of the state are obliged to amend welfare schemes, which have not included provisions for transgender and non-binary people. Chapter 2 of the same Act also stated that transgender people would not be discriminated against when accessing healthcare services (Transgender Persons (Protection of Rights) Act, 2019). These provisions in the Act were a welcome change and were thought to be a beacon of hope for transgender people, as this would mean a major step towards accessibility of healthcare. This was also seen as a major step for transgender and non-binary individuals, who would want to undergo a sex reassignment surgery or hormone therapy, can access health facilities easily and without much trouble. Chapter 6 of The Transgender Persons (Protection of Rights) Act, especially thoroughly defines the various health benefits that a transgender person is privy to – hormonal therapy, counselling after surgery, and coverage of medical expenses under the insurance scheme for Sex Reassignment Surgery.

But even as recognition of such provision was made in the legal documents, there has been very little change when it comes to the lived realities of the people. The Ayushman Bharat- Pradhan Mantri Jan Arogya Yojana was introduced in 2018 to provide citizens with accessible and equitable healthcare services. The government had announced that transgender people would be able to access the services of the Ayushman Bharat Card, especially highlighting access to additional services such as hormonal therapy and gender affirming medical procedures (Ali, 2025). But despite these provisions and promises, such changes have not been registered yet.

Thus, despite a historic legal recognition in terms of provisions has been registered for access to health, there is very little change, which is occurring in terms of ground reality or accessibility to welfare schemes.

Education and Employment

Chapter Six of the Transgender Persons (Protection of Rights) Act, 2019, illustrates that educational institutions within the ambit of the country are obligated to provide inclusive education to transgender people, whether it be in the arena of sports, leisure, or recreational activities. The Act in the domain of employment also states that the Government is obligated to formulate schemes and welfare measures, which will provide transgender people with vocational training and arenas to find self-employment. The Supreme Court Judgement had also stated that reservations shall be granted to transgender people in educational and professional spaces to allow for equitable decision-making (NALSA v. Union of India, 2014) 5 SCC 438).

One of the major reasons why such a provision was extremely important in the Act is the systematic exclusion that transgenders have faced in the legal and social scenario of the country for years now. The hijras have historically been engaged in begging and informal labour, while receiving very little benefit from the state (Gujjar and Naul, 2022). When provisions regarding education and employment are enshrined in a legal document, it provides the transgender population with rights and access to such institutions.

The Act also stated that a National Council for Transgender Persons shall be constituted, which provides an enormous amount of visibility to transgender people (Transgender Persons (Protection of Rights) Act, 2019). This provides transgender people with a national-level organization, under the ambit of the government, which shall be responsible for ensuring that the rights enshrined in this Act be provided to transgenders.

One of the other major reasons why transgender people often drop out of education or discontinue their employment is because of the harassment that they would face in such organizations (Sachin, 2022). But when an Act enshrines the various penalties that can be leveled against individuals and organizations for discrimination against transgender people, it provides individuals with ways to find redress for their grievances through legal means.

Legal Recognition V. Lived Experiences and On-Ground Reality

The enactment of the Transgender Persons (Protection of Rights) Act, 2019 was celebrated as a landmark move toward affirming the rights of transgender individuals in India. However, there exists a profound disconnect between legal recognition and the lived experiences of transgender and non-binary persons, revealing the limitations of top-down policy interventions in addressing deep-rooted social hierarchies.

While the law recognizes transgender persons’ right to self-identify and promises access to healthcare, education, employment, and protection from discrimination, these rights often remain paper guarantees. The implementation machinery is fraught with systemic inertia, bureaucratic opacity, and widespread societal transphobia. Despite legal rights, transgender individuals continue to face:

Refusal of housing, especially in urban spaces, due to prejudice from landlords and Resident Welfare Associations.
Discriminatory practices in public hospitals, where misgendering and invasive questioning are routine.
Educational exclusion, with dropouts resulting from bullying and institutional neglect.
Economic marginalisation, with a majority forced into informal sectors such as begging and sex work due to limited access to formal employment pathways.

Additionally, the law’s bureaucratic process for identity recognition (requiring certificates from District Magistrates and proof of medical procedures for certain legal transitions) delegitimizes self-identification and creates further barriers for non-binary individuals who do not wish to conform to a binary transition framework.

This gap between the textual progressiveness of the law and the material reality of transgender persons in India exemplifies the limitations of legalistic approaches that fail to address the cultural, structural, and institutional dimensions of exclusion.

Contemporary International Laws Which Stand As Testimonies to Laws Breaking the Binary

In Argentina, the 2012 Gender Identity Law allows individuals to self-identify their gender on all legal documents without needing judicial or medical approval. The law explicitly includes non-binary options and mandates the public health system to provide gender-affirming treatment. Similarly, Malta’s Gender Identity, Gender Expression and Sex Characteristics Act (2015) is considered one of the most progressive, emphasizing bodily autonomy, self-determination, and intersex rights.

The German Constitutional Court (2017) mandated the inclusion of a third gender option on birth certificates, recognizing that non-binary persons exist and must be legally acknowledged.

Why Do Laws Like These Fail?

A critical examination of the Transgender Persons (Protection of Rights) Act, 2019 reveals that its failure to garner support from the transgender community and human rights advocates stems from its inherent heteronormative and cisnormative framework.

a. Medicalization of Identity

The requirement for medical certification for changing one’s legal gender from transgender to male or female reinforces a pathologising approach. By linking gender identity to surgical or hormonal interventions, the law denies the agency of transgender individuals to define themselves outside medical narratives. This is not only a denial of bodily autonomy but also forces transgender persons into unwanted medical procedures simply to be legally recognized.

b. Lack of Non-Binary Recognition

Despite using a seemingly inclusive definition of “transgender,” the Act fails to meaningfully accommodate non-binary individuals. The form-filling systems, bureaucratic processes, and institutional structures continue to operate on a binary male/female logic, thus rendering non-binary identities invisible or invalid. Legal recognition becomes not a tool of liberation, but a mechanism of assimilation into normative categories.

c. Absence of Community Participation

One of the most contested aspects of the law’s formulation was its lack of consultation with transgender communities. Despite opposition from queer collectives, human rights bodies, and even members of Parliament, the law was passed without incorporating crucial feedback. The absence of democratic participation reflects a top-down, paternalistic approach, where transgender persons are seen not as rights-bearing subjects but as passive recipients of state charity.

d. Symbolic Without Structural Reform

The Act offers symbolic equality without structural transformation. The absence of affirmative action provisions, lack of robust grievance redressal mechanisms, and the failure to integrate transgender rights into broader social welfare schemes contribute to its ineffectiveness. Institutions remain unaccountable, and violations of the Act rarely result in legal consequences. This toothlessness exposes the law as an instrument of inclusion without empowerment.

Conclusion

Transgender and non-binary people in the country have been denied their rights legally and systemically for years now. With the 2014 Supreme Court Judgement and the Transgender Persons Act can be heralded as historic for the promotion of transgender people’s rights, there is very little mention of non-binary people in the Act. Similarly, the institution of a District Magistrate to provide the medical certificate to transgender people promotes an unequal and hierarchical schema of power.

Even as such legal mechanisms are in place for the recognition of the rights of transgender people, the ground reality is very different. The persistence of binary logic in administrative systems, the inadequacy of enforcement mechanisms, and the gap between legal entitlements and lived realities underscore the need for a paradigm shift. Thus, as shifts occur in the ground reality, these legal recognitions will have a true meaning as no legal change can mean anything unless transgender and non-binary people are able to ensure their dignity, access and justice.

References

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Kumar, Sachin. (2022). THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019: A Critical Study. 31. 103-109.
Bal, A. (2020). The Transgender Persons (Protection of Rights) Act, 2019: A Critical Analysis. Issue 6 Int’l JL Mgmt. & Human., 3, 1069.
IndiaSpend, & IndiaSpend. (2025, April 19). Ayushman Bharat’s broken promise to India’s transgender community. The News Minute.
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