PIL And Transgender Healthcare Rights Post NALSA: An Unexplored Judicial Trajectory

Abstract

Transgender person is an individual whose gender identity is different from the sex assigned to them at birth. It’s an umbrella term that includes trans men, trans women, intersex, non-binary or genderqueer individuals. In ancient Hindu texts, like the Ramayana and Mahabharata, they were referred to as ‘Third gender’ (Tritiya Prakriti). Their identities were respected and associated with religious significance. But with the introduction of the colonial rule, the law recognised only male and female categories, and criminalised transgender persons under the Criminal Tribes Act, 1871.Even after India’s independence, the rights of transgender persons didn’t seem to develop.  

As a result, a Public Interest Litigation (PIL) was filed by the National Legal Services Authority (NALSA), which led to the Supreme Court’s landmark NALSA v. Union of India (2014) judgement. The court recognised transgender persons as a constitutionally protected third gender under Articles 14, 15, 16, 19(1)(a), and 21. The Court emphasised healthcare, directing gender-affirming surgeries, hormone therapy, and dedicated medical facilities. This highlights, PILs as an indispensable tool for enforcing the rights of the marginalised communities when legislative and executive actions remain absent or inadequate.

 In response to NALSA judgment, the Transgender Persons (Protection of Rights) Act and its Rules of 2020, were enacted to prevent healthcare discrimination and establish medical boards and health units, etc. Despite these safeguards, transgender people face significant challenges in accessing healthcare. PILs like V. Vasanta Mogli Vs. The State of Telangana and Ors., and the Madras HC petition against the National Medical Commission highlight gaps in transgender healthcare, including access to hormones, surgeries, and insurance, while judicial enforcement remaining inconsistent and inadequate. This paper, by examining the post-NALSA PILs, seeks to reveal the gaps between constitutional recognition and actual medical access for transgender persons. It will also analyse the systemic, administrative, and social barriers that hinder the realisation of these rights and suggest pathways to strengthen judicial enforcement, policy implementation, and equitable healthcare delivery.