Human rights are certain basic inalienable rights that are available to everyone irrespective of their sex, religion, caste, color, nationality or any other socio-economic divisive category. These rights are available to all humans because of their very existence as a human being. This definition makes one thing very clear, that transgender persons are no exception to this entitlement [2]. This has been further established in the UN Charter under second paragraph of the preamble to the Charter, Articles 1(3) and 13 (1) (b) of the Charter; in the Universal Declaration of Human Rights (UDHR) under Articles 1, 2 and 7; in the International Covenant on Civil and Political Rights (ICCPR) and so on. Moreover, various efforts of UN Human Rights Council have also called for prohibition of discrimination on grounds of sexual orientation and gender identity [3]. 

Despite the existing international legal framework, the discrimination and violence against transgenders is rampant across the globe. The community has been fighting not only for equal education and employment opportunities but for things as small as separate washrooms. The perpetrators of violence and harassment against the transgenders include Police officials, medical staff and even their own family members. One of the major reasons for such degrading and differential treatment is their expression of oneself. The real problem, however, is not their way of dressing, talking, or other ways of expression, but, is in fact the lack of awareness of the very concept of gender identity and the difference between gender sex. Even if this is made clear and awareness is created, another impediment is acceptability. Majority of the parents refuse to accept the gender identity of their children for the simple reason that it does not fit in the established societal notion of “sex” and “gender”. 

Gender identity can be understood as one person’s inner sense or individual experience of gender which may or may not be in conformity with the sex assigned at birth. So, a person who is born as a biological male may identify himself as a female and to complete this sense of being a female, he may undergo sex-reassignment surgery, dress like a female and make other appropriate alterations in his behavior and appearance. The Preamble of the Yogyakarta Principles clearly provides that “all references to gender identity should be understood to be inclusive of gender expression as a ground for protection.” 

The United Nations High Commissioner for Human Rights (OHCHR) submitted a report titled “Discrimination and Violence against individuals based on their sexual orientation and gender identity” in 2015. This report elaboratively talked about the advancements made in relation to the LGBT community and intersex people in terms of introduction of anti-discrimination laws, hate crime laws, laws for recognition of third gender and same-sex relations and protection of intersex children. The report mentions about the State’s duty to protect and ensure human rights of all persons within their territory including LGBT and intersex people. This obligation includes “refraining from interference in the enjoyment of rights, preventing abuses by third parties and proactively tackling barriers to the enjoyment of human rights, including, in the present context, discriminatory attitudes and practices [4].”

Moreover, the Inter-American Court of Human Rights’ Advisory opinion 24/17 has affirmed that:

“States should respect and guarantee to each person the possibility to register and change, rectify or adjust their name and the other components of their gender identity, such as photograph and sex or gender references, without interferences from public authorities or private parties. . . Furthermore, the State should guarantee that individuals are able to exercise their rights and obligations in accordance with their identity, without being forced to portray a different identity which does not represent their individuality [5].”

The above-mentioned documents highlight that, issues related to gender identity and sexual orientation has attracted the attention of international and regional human rights bodies. Majority of the international legal instruments have affirmed the universality of human rights which has the effect of extending such rights to the transgenders as well. The next part will give a brief overview of the human rights situation in some nations concerning transgenders and their approach in improving it. 

Human Rights and Right to Be Human: Problem V. The Law

There have been numerous instances of violation of human rights of transgenders across the globe. The major issues faced by the transgender community includes harassment, discrimination, lack of equal educational and employment opportunities, poverty, violence, lack of healthcare facilities, difficulty in obtaining identity documents which also affects their eligibility to receive benefit under government welfare schemes, etc. A report submitted for consideration at the 122^nd session of the Human Rights Committee, Geneva has exhaustively dealt with the human rights violations committed against the trans women of Guatemala. The report highlighted the breaches of the International Covenant on Civil and Political Rights and mentioned how the Guatemalan State has failed to address the issues related to gender based violence and killings against transgender women. Further, the State does not have legislation that prohibit discrimination on the basis of sexual orientation and gender identity. It also does not have any provision that allows transgender persons to alter the gender on official documents thus violating the right to legal recognition of gender identity [6].

The position in India is comparatively better in India but the current legislation that is Transgender Persons (Protection of Rights) Act, 2019 is not free from lacuna. Several incidents of rape, murder and atrocities by police are often reported to have been committed against the transgenders. One of the saddening features of the Act is that the punishment for offences committed against the transgenders is very less as compared to the punishment for similar offence under the Indian Penal Code. Other than this, it was recently reported that the transgenders who sought government assistance during the COVID-19 pandemic and who did not have their identity cards to avail the assistance faced difficulty in obtaining the cards. In districts such as Thanjavur, Salem, Vellore and Chennai camps were organised for medical and psychiatric evaluation of transgender persons to be eligible for the issuance of identity cards. This was in clear violation of the Transgender Persons (Protection of Rights) Rules, 2020 and the judgement of the NALSA case [7]. The position in Nepal and Bangladesh is that transgenders have been given recognition but the nature and extent of it varies. Like for example, Nepal has made available only “others” category for trans people and they may register under this category only irrespective of how they identify themselves.

Another pressing issue relates to the health of the transgender people. It has been brought to the attention time and again that transgenders have more chance to contract HIV as compared to the other people. This is mainly because of the lack of healthcare facilities and stigma attached to them. There have been studies in the United States, Canada and Europe that show higher rates of suicide attempts by transgender persons due to the humiliation and marginalization that they face. Countries like Malaysia, Kuwait and Nigeria have laws that criminalise the very existence of transgender persons. In other countries, they are arrested under the laws that prohibit same-sex conduct.

On the other hand, there are instances of progressive steps taken by various nations. Recognition of ‘third gender’ by Nepal, Pakistan, Bangladesh and India has been a significant step. The Gender Identity Law of Argentina of 2012 is a glowing example of desired legal framework. This law is considered as the gold standard for legal gender recognition because of its very features. It permits anyone above 18 years of age to choose their gender identity, it has provision for sex reassignment surgery and a person can alter the gender without any judicial or medical interference. Countries like Denmark, Malta, Ireland have also made significant developments [8].

The above developments suggest that considerable development has been made in the area and the world has made considerable progress. But it must be understood that in the absence of concrete and uniform international standard, the real problem cannot be solved. In the absence of any such standard, the States feel free to enact laws as per their discretion which may or may not address fully the problems of transgenders. These laws have limited utility and face severe criticisms from the transgender activists. The Yogyakarta principles of 2007 and 2017, the several UN resolutions passed for recognizing the transgenders right to identity along with other rights, are just declarations and statements of commitment. The statutory or authoritative value is absent. Despite all this, the extrajudicial killings, rape, deprivation of basic rights continue to exist against the transgenders. In the light of this, the next section will analyse the specific legal instruments and bodies that have extended protection to the LGBT community and intersex people and has contributed to the development of variety of other associated rights. 

Human Rights of LGBT and Intersex Persons: International Perspective

As mentioned earlier, human rights are universal and therefore available to all. Other than the basic documents like the UN Charter and UDHR, the ICCPR also recognizes the above-mentioned nature of human rights. Some of the documents and bodies that have specifically talked about the rights of LGBT and intersex people are mentioned below:

United Nations

There are certain landmark developments made in the UN with respect to the rights of LGBT community. In 1994, the UN Human Rights Committee became the first body to acknowledge that human rights extend to homosexuals. In 2011, the then UN-Secretary General talked about the homophobic bullying which is endangering the human rights of the LGBT community and also called the member States to stop discrimination based on sexual orientation. In the same year, the OHCHR, UNDP, WHO and the Joint U.N. Programme on HIV/AIDS (UNAIDS) collectively issued a brochure titled “The United Nations Speaks Out: Tackling Discrimination on grounds of Sexual Orientation and Gender Identity.” In December, 2011, OHCHR released its first report on the human rights of the LGBT community [9]. Recently, in 2020, ninety-six UN special procedures mandate holders signed a statement calling for LGBT-inclusive responses to the COVID-19 pandemic [10].

UN Human Rights Council

In 2015, a report was issued by the UN High Commissioner for Human Rights which talked about the human rights violations against individuals on the basis of their gender identity and sexual orientation. It talked about the positive efforts taken by the national, provincial and local government for ensuring fair treatment to the LGBT and intersex people. The report recommended to repeal laws which punish people based on their gender identity and expression, sexual orientation and the so-called “anti-propaganda” laws [11]. In 2016, the UNHRC appointed an Independent Expert on Protection against violence and discrimination based on sexual orientation and gender identity [12]. The independent expert was appointed for three years with the mandate to evaluate the existing international human rights instruments so as to overcome violence and discrimination based on sexual orientation or gender identity. The independent expert can further look into the causes behind such violence and discrimination and to engage into talks with the concerned State.

Council of Europe

The Council has in its resolution 2191 (2017) has talked about the promotion of human rights and elimination of discrimination against the intersex people. The Parliamentary Assembly called upon the members of the Council of Europe to “prohibit medically unnecessary sex “normalising” surgery, sterilisation and other treatments practised on intersex children without their informed consent [13].”

European Commission

In November 2020, the Commission presented its first ever strategy for the LGBTIQ equality. The Commissioner for Equality, Helena Dalli emphasized on equality and non-discrimination as the core values of the European Union. This implies that no person in the EU should feel unsafe because of their chosen gender or sexual orientation [14].

European Union

The EU legal order has made considerable progress in prohibition of discrimination and protection of human rights. But, as far as LGBTI people are concerned, the discrimination against them continues throughout the EU. The EU law recognizes sexual orientation as one of the grounds of discrimination but the scope of this law is limited and fails to cover issues of education, healthcare, access to goods and service, etc. Moreover, EU lacks competence in recognition of marital and family status of LGBTI people. Member States have different laws, with some offering the same-sex couple the right to marry, others providing alternative forms of registration. This ambiguity also pervades in the area of adoption and access to assisted reproduction in relation the same-sex couple. A general analysis shows that EU is comparatively LGBTI friendly as the member States are parties to a variety of international instruments including the European Convention on Human Rights (ECHR) that ensure fundamental freedom for all. The overall social attitude towards the LGBTI people has grown more positive across the European Union.

There is extensive EU legal framework that calls for prohibition of discrimination on the grounds of sexual orientation such as the Charter of Fundamental Rights of the EU (Article 21(1)). Article 13 of the Treaty establishing the European Community can also be referred in this aspect. It must be noted that the EU law does not prohibit discrimination specifically on the grounds of transgenderism. This ground however, is covered either under the definition of sex discrimination in some Member States or sexual orientation in other Member States. There are certain Member States which do not talk about either, the transgenders there have the option of relying on the general principle of equality [15].

European Court of Human Rights (ECHR): In Christine Goodwin V. United Kingdom [16], the issue before ECHR related to the violation of Articles 8,12,13 and 14 of the Convention for Protection of Human Rights and Fundamental Freedoms, 1997 in relation to the transsexuals in UK. It also talked about the differential treatment towards the transsexuals in employment, marriage, social security and pensions. The applicant was a biological male but identified as a woman. After therapies and other treatments, he underwent sex-reassignment surgery. After the surgery, the applicant faced severe discrimination and sexual harassment at workplace. The court held that the essence of the Convention is respect for human dignity and freedom which is available to all. Further, the right of transsexuals to personal development and physical and moral security cannot be disregarded.

In Identoba and Others V. Georgia [17], the court dealt with the issue of violent attacks committed against the demonstrators present to mark the International Day against Homophobia. The applicants alleged the attack had discriminatory motives behind it. The court after looking into various reports regarding the treatment of LGBT people in Georgia, found that the negative attitude was rampant against them and that the attack was clearly discriminatory. It held that there was violation of Article 3 read with Article 14 of the for Protection of Human Rights and Fundamental Freedoms.

ECHR has dealt with a variety of issues relating to LGBT community such as violence committed against them, adoption, civil unions, etc.

Constitutionalism and Human Rights

Constitutionalism implies a system of government or political arrangement that is governed by the supreme law of the land, which in case of India is the Constitution. Further, the concept encompasses that the State shall provide safeguards for the protection of rule of law, separation of power, checks and balances, good governance, judicial independence and protection of individual rights. According to Charles H. Mcllawain, the essential quality of constitutionalism if that “it is a legal limitation on government; it is the antithesis of arbitrary rule.” Another important feature associated with Constitutionalism is that the laws and behaviour of the State and State agents are expected to be founded on the principles of the Constitution. These principles are mentioned in the preamble to the Constitution (in reference to India). The principle relates to securing all its citizens:

• “Justice, social, economic and political

• Liberty of thought, expression, belief, faith and worship

• Equality of status and of opportunity; and to promote among them all 

• Fraternity assuring the dignity of the individual and the unity and integrity of the Nation

Therefore, the basic understanding of Constitutionalism can be summed up by ultimately recognizing that the only protection for an individual’s right is the Constitution and the respect for rule of law by the State and its agents. Moreover, Constitution contains overarching arrangements that determines the political, legal and social structures by which the society is to be governed. It is therefore considered as the superior or fundamental law. In other words, it is the grundnorm to which all other laws within the country must abide by and follow its principles. In this light, if the Constitution making process and its content is inadequate, the nature of democracy and rule of law within a country is bound to be affected. It will in turn affect the human rights of individuals that can only be ensured and protected under a rule of law framework.

The structure of government in modern nations has three organs, i.e., the executive, legislature and the judiciary. The powers and functions of these organs have clear demarcation and they are expected to follow the concept of separation of power. Separation of power implies that these bodies work independently and maintain their autonomy. This is a tenet of constitutionalism along with the idea of limited government and supremacy of law. Further, the authority of a government depends on observance of such limitations. Constitution is the framework that lays down such powers and limitations. This framework must be such as represents the will of the people and should have been arrived at through consensus. As far as human rights are concerned, despite their origin, nature and definition, require written laws in order to be made available to the people. They are upheld by being included in the domestic laws of the country and are protected by the rule of law. As far as India is concerned, such rights find mention under Part III of the Constitution, the provisions of which are quite similar to the International Covenant on Civil and Political Rights and International Covenant on Economic Social and Cultural Rights.

The above literature makes it clear that constitutionalism implements the rule of law. Since, the concept itself defines the powers and limitations of the government, its responsibilities and behaviour, this brings out the element of predictability and security in the relations between the individuals and the State. The term predictability in this scenario requires the State to make sure that laws are objective and not arbitrary and are made known to the people in advance. For example, Constitution provides that a person cannot be deprived of his life and liberty except procedure established by law. The procedure says that a person may be arrested with or without warrant depending upon the nature of the offence and must be produced before a magistrate within 24 hours of arrest. So, predictability is ensured when this procedure is followed. 

Therefore, it can be summed up that Constitutionalism is inherently a convergent means through which respect of human rights is implemented and institutionalized. In any country, its Constitution is the foundation for protecting the rights and liberties of its individuals.

Rule of Law and Role of Judiciary in Protection of Human Rights

Rule of Law: As discussed earlier, rule of law plays an important role in ensuring human rights. Rule of law entails the following:

• Equality before law and supremacy of law

• Lack of arbitrariness

• All individuals should be subjected to the ordinary courts and local laws of the land

While constitutionalism is the institutional basis for rule of law, it is also secured by the rule of law. Since rule of law requires recognition of supremacy of law, it provides a framework where human rights are protected and remedies are made available to redress its violations. The efficacy of rule of law depends upon a variety of factors such as political, legal and institutional factors. Political factors talk about the need for political will and power to bring laws that are not contrary to the principles of rule of law. Legal factors basically emphasize that rule of law can be maintained if the laws are such as are made to serve the public and defend human rights principles. Further, if the institutions fail to observe laws in force, then the efficacy of rule of law collapses. This results in constrained enjoyment of human rights since the institutions responsible for human rights protection have become dysfunctional [18].

Role of Judiciary

In any country, the judiciary plays a vital role in determining the efficacy and practice of rule of law in a country. The independence and impartiality of judiciary are important factors to safeguard human rights. In India, the Apex Court is the guardian of the Constitution and has the primary duty of upholding the fundamental rights of the citizens. Courts in general have the responsibility to protect, promote and enforce the human rights of individuals and provide effective remedy to the victims whose rights have been violated. They also keep a check that rule of law is maintained and the State and its agents are not acting arbitrarily which might result in deprivation of an individual’s right. Some of the landmark judgements in this context with reference to India has been discussed below.

With regard to the rights of LGBTQ+ persons, a major breakthrough came when in the case of Naz Foundation v. Govt. (NCT of Delhi) [19], the Delhi High Court declared Section 377, Indian Penal Code as unconstitutional on the grounds that it violated Articles 14, 15 and 21 of the Constitutional of India by discriminating on grounds of sexual orientation. Later, this judgement was overturned in Suresh Kumar Koushal v. Naz Foundation [20] on the grounds that Section 377, IPC did not lead to any considerable discrimination as LGBTQ+ persons form “a miniscule portion of the population”. Ultimately, it was in Navtej Singh Johar V. Union of India [21]that Section 377, IPC was declared unconstitutional to the extent that it criminalised consensual sexual intercourse between same sex individuals done in private. Another judgement which showcases the progressive approach of the Apex Court is National Legal Services Authority v. Union of India [22]. In this case, the Supreme Court of India gave legally recognized the “third gender” and discussed the issue of “gender identity” in detail. Further, Court upheld the right to self-identify one’s gender and held that no transgender should be subjected to any medical or biological tests which would invade their privacy. Sexual orientation and gender identity was treated as being intrinsic part of a person’s identity and any discrimination against transgenders was condemned by the court. One more judgement in this context is of K.S. Puttaswamy v. Union of India [23] where right to privacy was upheld to be a fundamental right under Article 21 of the Constitution of India and this protection of the right extended to the individual’s sexual orientation [24].

LGBTQ+ and intersex persons have long been victims of discrimination, stigma, violence, etc., because of their sexual orientation and gender identity. It would be wrong to say that their situation has completely changed and has become all rosy. But, at the same time, it must be acknowledged that the international community is actively showing interest and taking measures to improve the status of LGBTQ+ community. There have been some major developments at the international level such as UN resolutions concerning the rights of transgenders and calling the States to ensure such freedom and curb violence and extra judicial killings on the basis of gender identity and protection against torture. The Yogyakarta Principles of 2007 and 2017 is another such development as it comprehensively provides for the LGBTQI+ specific universal human rights standards. Despite all this, human rights violation continues to take place due to lack of a concrete universal standard. In the absence of such universal standard, there is no uniformity in the degree of protection provided by the States to the LGBTQ+ community. Further, the declarations and resolutions as mentioned before, has very less statutory or authoritative value.

The international human rights conventions that impose obligations on States have increasingly been interpreted to include rights of LGBTQ+ community as well. Such as Article 26 of the ICCPR prohibits discrimination and gives equal protection to all persons before the law has been interpreted to include transgender persons under the category of “sex”. Article 9 of the ICCPR has interpreted that the right to liberty is available to “everyone” which includes all persons of LGBTQ identity. It must be noted that the relevant conventions are general in nature and therefore fail to cover discrimination faced by transgenders in health, education, employment, police abuse, amongst other things. Finally, it can be concluded that while the legal mechanism concerning the transgenders is continuously evolving at the international level, it needs urgent attention at the domestic level in most of the nations. The position in India is better as compared to most of the nations but the ground reality is still a mystery. The Apex court of India has contributed immensely in recognizing the rights of the transgenders. But still there are various issues relating to LGBTQ+ community that need attention such as right to adopt, marry, inherit, etc. The respect for human rights and ensuring its protection and promotion within a country can only be done by ensuring the efficacy of rule of law. The check must be maintained on the powers of the State and its agents in order to ensure this. Finally, since relying completely on the inaccessible and slow treaty interpretation system, will actually result in the deprivation of the rights and dignity of the sexual and gender minorities, the voice of transgender people, activists must be heard by giving them proper representation.

1. AIR 2014 SC 1863.

2. “Human rights violations against transgender women in Guatemala.” Submitted by OTRANS, REDTRANS Guatemala, REDNADS, REDLACTRANS and Centre for International Human Rights of Northwestern Pritzker School of Law, Office of the United Nations High Commissioner for Human Rights, tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/GTM/INT_CCPR_CSS_GTM_30350_E.pdf. Accessed 29 September 2021.

3. Office of the United Nations High Commissioner for Human Rights. Born free and equal: Sexual orientation and gender identity in international human rights law. OHCHR, pp. 10–11, www.ohchr.org/documents/publications/ bornfreeandequallowres.pdf. Accessed 26 September 2021.

4. Office of the United Nations High Commissioner for Human Rights. “Discrimination and violence against individuals based on their sexual orientation and gender identity.” United Nations Digital Library, digitallibrary.un.org/ record/797193?ln=en. Accessed 28 September 2021.

5. Inter-American Court of Human Rights. Advisory Opinion OC-24/17, 24 November 2017, www.corteidh.or.cr/docs/opiniones/seriea_24_eng.pdf. Accessed 29 September 2021.

6. Office of the United Nations High Commissioner for Human Rights. “Human rights violations against transgender women in Guatemala.” tbinternet.ohchr.org/Treaties/ CCPR/Shared%20Documents/GTM/INT_CCPR_CSS_GTM_30350_E.pdf. Accessed 5 October 2021.

7. Josephine, Serena M. “Transgender persons say they go through tests to get ID cards.” The Hindu, 29 June 2021, www.thehindu.com/news/national/tamil-nadu/transgender-persons-say-they-go-through-tests-to-get-id-cards/article35045933.ece. Accessed 30 September 2021.

8. Human Rights Watch. “Rights in transition: Making legal recognition for transgender people a global priority.” World Report 2016, www.hrw.org/world-report/2016/country-chapters/africa-americas-asia-europe/central-asia-middle-east/north-0#. Accessed 30 September 2021.

9. Juneau, G. and Neal S.R. “Are LGBT rights human rights? Recent developments at the United Nations.” Psychology International, June 2012, www.apa.org/international/ pi/2012/06/un-matters. Accessed 1 October 2021.

10. Trithart, Albert. “A UN for all? UN policy and programming on sexual orientation, gender identity and expression and sex characteristics.” February 2021, International Peace Institute, www.ipinst.org/wp-content/uploads/2021/02/A-UN-for-All.pdf. Accessed 2 October 2021.

11. 
     

12. Office of the United Nations High Commissioner for Human Rights. “One pager on violence and discrimination based on sexual orientation and gender identity.” www.ohchr.org/Documents/Issues/Discrimination/LGBT/A_HRC_29_23_One_pager_en.pdf. Accessed 20 September 2021.

13. United Nations Human Rights Council. Resolution A/HRC/32/L.2/Rev.1. www.un.org/ga/search/view_doc.asp?symbol=A/HRC/32/L.2/Rev.1. Accessed 1 October 2021.

14. Council of Europe Parliamentary Assembly. “Resolution on discrimination against transgender people in Europe.” assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=24232. Accessed 20 September 2021.

15. European Commission. “Union of equality: The Commission presents it’s first-ever strategy on LGBTIQ equality in the EU.” 12 November 2020, ec.europa.eu/commission/presscorner/detail/en/ip_20_2068. Accessed 1 October 2021.

16. European Parliament Research Service. The rights of LGBTI people in the European Union. 2021, www.europarl.europa.eu/RegData/etudes/BRIE/2021/690601/EPRS_BRI(2021)690601_EN.pdf. Accessed 1 October 2021.

17. Application no. 28957/95. Judgment dated 11 July 2002.

18. Application no. 73235/12. Judgment dated 12 May 2015.

19. Human Rights Commission. “Constitutionalism and human rights: Perspectives on the judiciary and the police in human rights protection, individual rights and democratic governance in Zambia.” State of Human Rights Report in Zambia, 2008, www.legal-tools.org/doc/1cbff0/pdf/. Accessed 3 October 2021.

20. SCC Online Delhi 1762 (2009).

21. (2014) 1 SCC 1.

22. (2018) 10 SCC 1.

23. (2014) 5 SCC 438.

24. (2017) 10 SCC 1.

25. “Ibid.” 323. “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.”