Beyond binary: India recognises gender diversity, but do its institutions?

India has made real progress in recognising gender diversity in law over the past decade. Putting that recognition into practice is proving harder, because changing a law is always simpler than changing a system.

The landmark Supreme Court judgment in National Legal Services Authority (NALSA) v Union of India gave transgender people the right to self-identify their gender. It established that an individual’s rights do not depend on how the law defines “man” or “woman”, and it directed the authorities to take measures to advance the transgender population.

Five years later, Parliament enacted the Transgender Persons (Protection of Rights) Act, 2019. The law prohibits discrimination and includes provisions on identity, employment, education, healthcare, housing, and welfare, including specific rules on equitable hiring, educational inclusion and medical care. It is important legislation. One question nonetheless remains: what has legal recognition done for the lives of people who face discrimination because of their gender?

The question is hard to answer. India has built a legal base for change. But the continuing need for institutional reform shows that recognition has not yet delivered equality.

Legal framework marks starting point

NALSA mattered not only because the Supreme Court recognised a third gender, but also because it placed gender identity within the rights guaranteed by the Constitution and within the idea of human dignity.

The 2019 Act sought to turn those principles into law. It requires the elimination of discrimination against transgender people and obliges states and organisations to meet their duties under the Act. Educational institutions must provide inclusive education and ways to seek redress for grievances. The Act also contains instructions on health and social security (Sections 3, 9, 11, 13 and 15).

A framework therefore exists. The real question is whether institutions have done everything needed to put the rights it provides into effect. The distinction matters, because a law can ban discrimination while doing nothing about the conditions needed to enforce the ban.

Data problem

A major obstacle in addressing gender inequality is uncertainty about the size and scope of the problem. The 2011 census recorded 487,803 people in the “others” gender category. The figure needs careful reading: the census does not capture every aspect of transgender identity, and how a person classifies himself or herself plays a large part in whether he or she is counted.

This hampers policymaking. Without reliable data, nobody can assess educational attainment, economic conditions, housing, or access to health care. The National Human Rights Commission has repeatedly asked the authorities to support efforts to evaluate the condition of the transgender population.

People missing from the statistics can just as easily be left out of priority policy decisions.

Education: admission isn’t inclusion

Education shows clearly how institutional inclusiveness can be measured.

Under the Transgender Persons Act, educational establishments must provide inclusive education for transgender people (Section 13). Exclusion from education remains a serious problem that follows people into adult life. Yet inclusion is more than admission.

A transgender student may qualify to attend an institution and still be bullied, ignored or caught up in bureaucratic complications. Such a student may have the right to be present but not feel free to use certain facilities or report complaints to people in authority.

This points to institutional culture. The question is not only whether a transgender person is eligible to enter, but also whether that person can study without having to defend the right to be who he or she is.

Healthcare: access beyond hospital door

Healthcare poses an even greater challenge, because going without a service has direct consequences for health. The 2019 Act requires public authorities to ensure that transgender people can access healthcare services.

Section 15 sets out the measures that healthcare institutions must take to help patients. But a right to enter a facility does not guarantee access to its services. A facility may be open to every patient, yet transgender people may struggle to be admitted. Staff may lack knowledge, bias against transgender patients may be present, or required procedures may be excessive. The lesson about inclusion is plain.

The same principle applies to public administration and educational establishments, where social barriers may prevent people from accessing the services they need.

Employment: the problems begin earlier

Jobs bring a further difficulty. Section 9 of the Act prohibits discrimination against transgender people in employment, and Section 10 sets out specific duties for employers.

Yet inequality in job opportunities starts long before the workplace. A person who faces discrimination at school, struggles to reach higher education, lacks family support or has trouble obtaining documents will meet problems long before any interview.

Representation, therefore, does not equal inclusion. An employer can hire a transgender person without creating the conditions for inclusion, if that employee cannot report harassment openly, win promotion or build a career.

The fight for equality and inclusion in society must continue.

Gender inclusion isn’t only about transgenders

Discussions of gender equality often assume that only transgender people are affected. Gender roles, however, shape everyone’s life, whatever their gender.

A recent Time Use Survey by the Ministry of Statistics and Programme Implementation shows how. Among people aged 15 to 59, 41% of women and 21.4% of men take part in unpaid care work. Women spend about 140 minutes a day on it; men spend about 74 minutes. These are official survey figures, not estimates.

The figures do not suggest that care work is bad or that nobody should choose it. They point to inequality in how unpaid work is shared.

The survey also shows that, among people aged 15 to 59, 75% of men and 25% of women take part in some form of economic work.

Norms take shape outside institutions

The problems begin much earlier than any private firm or government office.

A 2024 report by the United Nations Population Fund (UNFPA) India, Gender Norms and Well-Being of Women and Girls in India, says that long-standing social and cultural norms interfere with women’s enjoyment of their right to education, health and other opportunities. The report stresses the importance of changing outdated gender stereotypes through training and social action.

This matters because laws and institutions are created within society. A school may adopt an anti-discrimination policy, but students still bring home ideas about femininity and masculinity from family, the internet and their neighbourhood. An employer may introduce an equality policy, but employees keep their stereotypes about who should lead society and who should look after children.

When inclusion becomes gesture

A worrying habit is to confuse token inclusion with the real thing. An organisation adds a new category to a form. A college holds a diversity event. A company launches an inclusion campaign. A government agency sends out a bulletin.

These activities have some value, but taken separately or even together, they prove little. A larger set of problems hides behind the facade of inclusion. What does a person do when facing discrimination? How does he or she file a complaint? Does anything happen as a result? Is there a grievance procedure for affected people? Will the complaint be taken seriously? Can the person use services without being humiliated?

What meaningful inclusion requires

Organisations differ, so no single remedy exists. Educational institutions need working anti-bullying systems, trained staff and clear guidance on handling discrimination. Their students must know how to complain.

Healthcare organisations must ensure that staff know how to treat patients properly. Companies need a clear hiring process, which also makes the handling of complaints safer and more reliable. Government agencies must improve how they collect and manage data. Finally, policymaking must involve the people it affects.

Recognition: road, not finish line

Recognition is the first stage: the legal process begins by acknowledging gender diversity. NALSA changed the law’s constitutional basis, and the 2019 Act gave it legislative support. Its provisions on discrimination and on the rights to employment, education, shelter and health are now in use.

That is a major achievement, but the progress is not beyond criticism. How far the law’s guarantees become real depends heavily on how well practice develops.

The difficulty of implementing the law, in effect, reflects India’s state of gender equality. Recognising a person’s gender identity can seem an easy task, yet cultural norms take years to change. Legislation is powerful and can ban discrimination in a single paragraph. Changing an institution’s culture takes time. Creating a setting where discrimination no longer works is an ongoing process. A policy shows that an institution may aim at inclusion, but it matters only when it secures a person’s right to dignity.

India has moved beyond the binary in parts of its legislation. Recognition tells people they exist; inclusion shows whether they can take part. The next question is whether India’s institutions can go beyond the binary in practice.