Introduction:

India’s legal and policy framework for transgender rights has evolved rapidly in the past decade. From being a largely invisible and marginalised community, transgender persons today enjoy constitutional recognition, dedicated welfare schemes, and formal legal protection. Yet, gaps in policy continue to create barriers in areas such as healthcare, documentation, livelihood, and bodily autonomy.

• • A recent petition before the Kerala High Court - where a trans man sought the right to preserve his gametes - has brought renewed attention to these gaps. The Union Government’s affidavit, stating that transgender persons are not eligible to access Assisted Reproductive Technology (ART) under existing laws, has raised important questions about reproductive rights, the definition of family, and the future of inclusive healthcare in India.

Status of Transgender Persons in India:

• Census 2011 recorded around 4.87 lakh individuals identifying as “other gender,” though the true number is almost certainly much higher. In the years since, legal recognition has improved, but social acceptance continues to lag. Many transgender persons still struggle with family rejection, interrupted or inaccessible schooling, limited job opportunities, and inadequate healthcare. Even when welfare schemes exist, documentation hurdles often prevent people from accessing them. At the same time, the demand for gender-affirming healthcare is rising rapidly, and India is emerging as a significant hub for such medical services, including international medical tourism.

The ART Act and the Exclusion of Transgender Persons:

• • Under the Assisted Reproductive Technology (Regulation) Act, 2021, ART services are restricted to:
    • Commissioning heterosexual couples, and
    • Single women
  • The Act does not allow single men or transgender persons to avail procedures such as IVF, gamete cryopreservation, or surrogacy-linked services.
  • In the affidavit filed before the Kerala High Court, the Union Government stated that this exclusion was intentional and followed extensive parliamentary discussion. According to the Centre, the law aims to ensure the “best interests of the child,” and any expansion of eligibility would require expert consultations and fresh policy decisions.
  • The petitioner in the case - a trans man undergoing gender-affirming treatment - sought permission to preserve his gametes for future use. A private fertility centre denied the request because the law does not recognise him as an eligible beneficiary. This prompted him to approach the High Court.
  • The Centre’s reply argues that the issue is not merely legal but a policy question, requiring deeper examination of family structures, parental rights, and the long-term welfare of children born through ART. The case is ongoing, but it has revived a national conversation on whether reproductive technologies should be accessible to all, regardless of gender identity.

Key Challenges faced by transgenders: 

• • Social Stigma and Discrimination: Violence, exclusion, and lack of acceptance remain widespread. Many individuals are forced into informal or unsafe livelihoods.
  • Healthcare Barriers: Shortage of trained healthcare professionals, limited gender-affirming services, and high medical costs restrict access to safe treatment.
  • Documentation Issues: Inconsistent procedures for updating gender details in ID records hinder access to schemes, jobs, housing, and education.
  • Economic Marginalisation: Limited skilling and poor formal employment push many transgender persons to the fringes of the economy.
  • Housing Vulnerability: Transgender persons often face homelessness or unsafe living conditions due to social rejection and discrimination in renting.
  • Limited Financial Allocation: Budgetary support for transgender welfare remains inadequate across ministries.

Transgender Rights: 

1. Constitutional Foundation

• • The modern era of transgender rights in India began with the Supreme Court’s landmark judgment in NALSA vs Union of India (2014). The Court:
    • Recognised transgender persons as a “third gender”
    • Affirmed their right to self-identification
    • Extended protections under Articles 14, 15, 16, 19 and 21
    • Directed governments to introduce policies for social, economic, and educational inclusion
  • This judgment established that transgender persons are entitled to equality, dignity, privacy, and non-discrimination at par with all other citizens.

2. The Transgender Persons (Protection of Rights) Act, 2019

To give legislative backing to the NALSA judgment, Parliament enacted the Transgender Persons (Protection of Rights) Act, 2019, which came into effect on 10 January 2020. It remains the central law guiding rights and welfare for transgender persons.

Key Features of the Act:

• • Inclusive Definition: The Act recognises transgender men, transgender women, genderqueer individuals, persons with intersex variations, hijras and others—irrespective of surgery or hormonal intervention.
  • Anti-Discrimination Safeguards: No discrimination is permitted in education, employment, healthcare, movement, residence or access to public services.
  • Right to Self-Identity: Individuals may obtain a Certificate of Identity through the District Magistrate. A revised certificate can be issued after gender-affirming surgery.
  • Welfare Obligations of the Government: The Act mandates social security programmes, health facilities, rescue support, and rehabilitation services.
  • Employment-Related Measures: Organisations must appoint a complaint officer, ensure non-discrimination, and provide equal opportunities.
  • Education and Skill Development: Focus on inclusive education, vocational training, and scholarships.
  • Healthcare Provisions: Government hospitals must offer counselling, gender-affirming healthcare, and insurance coverage.

3. Transgender Persons (Protection of Rights) Rules, 2020

• • The Rules operationalise the 2019 Act and require:
    • Transgender Protection Cells in every State/UT to monitor offences
    • Transgender Welfare Boards for policy implementation
    • Time-bound procedures for issuing identity certificates
  • Currently, 20 States/UTs have established Protection Cells and 25 States/UTs have formed Welfare Boards.

4. Institutional Support: 

• • National Council for Transgender Persons: Constituted in 2020, the National Council for Transgender Persons functions like a national advisory and monitoring body. It includes representatives from the community, central ministries, NHRC, NCW, states, and experts.
  • Core Functions:
    • Advising on policies and legislation
    • Monitoring implementation of welfare schemes
    • Coordinating between ministries
    • Addressing grievances
    • Reviewing programmes and identifying gaps
    • The Council is an essential link between the community and the government.

Major Government Schemes:

1. National Portal for Transgender Persons (2020):

A multilingual platform enabling online applications for identity certificates and access to welfare schemes. The end-to-end digital process increases transparency and removes physical barriers.

2. SMILE Scheme (2022):

The scheme focuses on livelihood, education, healthcare, shelter, and rehabilitation.

Key components include:

• • • Skill development and vocational training
    • Scholarships to prevent school dropouts
    • Medical support, including gender-affirming care
    • Ayushman Bharat TG Plus insurance with coverage of ₹5 lakh per person
    • Garima Greh shelters providing stay, food, counselling and basic services

More than 20 Garima Grehs operate across states, offering safe housing for persons facing abandonment or homelessness.

The Way Forward:

• • Effective Implementation of the 2019 Act and 2020 Rules: States must fully operationalise protection cells, welfare boards, grievance systems and institutional safeguards.
  • Strengthen Healthcare Access: Expanding TG Plus insurance, increasing gender-affirming services in government hospitals, and reducing costs can transform healthcare outcomes.
  • Integrate Transgender Health into Medical Education: Mandatory training for doctors, nurses, counsellors and administrators is essential to ensure sensitive and informed care.
  • Establish Centres of Excellence: Specialised institutions for research, surgery, counselling, and community support can position India as a global leader in trans healthcare.
  • Improve Documentation Systems: Simplified procedures for updating gender in Aadhaar, PAN, passports and academic records are crucial.
  • Create a National Strategy with Higher Funding: A coordinated, long-term strategy backed by financial commitment can address structural challenges around livelihood, health, housing, and social protection.
  • Revisit Access to Reproductive Technologies: The debate triggered by the Kerala High Court petition highlights the need to update laws to reflect diverse family structures. Ensuring reproductive autonomy aligns with constitutional values of dignity and equality.

Conclusion:

The ART case before the Kerala High Court is a reminder that the rights of transgender persons are still evolving. India has made significant progress from constitutional recognition in 2014 to dedicated welfare schemes, digital inclusion, and policy reforms today. Yet true empowerment requires that these protections translate into lived reality.