By Anuradha Gandhi and Rishabh Gupta
Introduction:
With years of social marginalization, cultural exclusivity and loss of gender identity, India has come a long way in recognizing the rights of people belonging to the transgender community. ‘Transgender’ is an umbrella term for persons whose gender identity, gender expression or behavior does not conform to that typically associated with the sex to which they are assigned at birth. [1]
As the transgender community encompasses diverse gender identities, being referred to as ‘they’ or as the LGBTQIA+ community, where every word represents gendered conformity, includes Lesbians, Gays, Bisexuals, Transgender, Queers, Intersex, and Asexual and the rest is a significant social group. People belonging to transgender community have long fought for recognition of their gender identities, acceptance, rights and social inclusion. The dream that has followed a path, with contemporary India has seemingly accepted with legal and policy advancements that have followed the Supreme Court’s judgement in National Legal Services Authority vs. Union of India.[2] The NLSA judgement not only recognized individuals as ‘third gender’ but also mandated the governments to address their rights under the Constitution of India. A major change was sought to be welcomed here!
Impact of NLSA Judgement on Education Sector
The Supreme Court recognized that Transgender Persons are deprived of social and cultural participation and hence restricted access to education. Therefore, stating that the word ‘Person’ in Article 14 of the Constitution includes transgender persons and are entitled to legal protection of laws in all spheres of State activity including education, it directed Central and all State governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.[3]
Post the Judgement, the government has made several reforms, particularly in the education sector such as –
- Transgender Person (Protection of Rights) Act, 2019 which mandates every educational institution whether private or public to provide inclusive education and opportunities for sports, recreation and leisure activities to transgender persons without discrimination[4].
- Transgender Person (Protection of Rights) Rules, 2020 mandates every educational institution to have a separate committee accessible for Transgender Persons in case of any sexual harassment or discrimination.[5]
- Furthermore, the Delhi Government has included ‘transgender child’ within the meaning of ‘child belonging to disadvantaged group’ and allowed 25% reservation under the economically weaker section (EWS) and disadvantaged students for admission in schools[6].
However despite these policy developments, the transgender community remains highly marginalized and vulnerable. A study by a team from the National Institute of Epidemiology among 60,000 transgender people across 17 states, including Tamil Nadu, found that a large proportion of them receive no support from their biological family.[7]
Even within the educational spaces, they continue to face harassment due to the institutions being a gendered place. For instance, recently two transgender students from the University of Hyderabad found their belongings burnt which led to a widespread protest by the student union and eventually led to the University being agreeing to increase the scope of its Committee against Sexual Harassment at Workplace (CASH Committee)[8]. Similarly another police complaint was filed by a transgender student against an employee of Maharaja’s College in Kerala for passing sexual innuendoes.[9]
Such incidents highlight the persistent gap between legal recognition and ground level inclusion.
Rights of Transgender Persons in Education Sector
- Recognition of Self-Identified Gender in Academic Records
The Vihaan Peethambar case reveals how universities often fail to recognize a transgender person’s self-identified gender.The petitioner, originally named Jyothi Peethambar, completed an MS in Communication from Manipal University in 2008. After undergoing gender reassignment surgeries in 2015, he changed his name to Vihaan Peethambar, and his updated identity was reflected in all official documents. However, the university refused to change his name and gender on the degree, citing time limits. The Court held that since his new identity is officially recognized, no separate certificate under Rule 3 of Transgender Persons (Protection of Rights) Rules, 2020 was needed. Affirming the right to self-identity as part of dignity under Article 21, the court directed the university to update his records as per the ratio laid down in NLSA Judgement.[10]
- Provision of Reservation to Transgender Students
Although, the NLSA Judgement has mandated reservations for transgender persons not only in admissions to educational institutions but also for public appointments, however, no concrete measures have been taken by the government yet.
The Hon’ble Delhi High Court in its order dated October 06, 2025 while reflecting on this lacunae has directed to afford relaxation of 5 years in age and also relaxation of qualifying marks to the extent of 5% to the transgender persons in public employment as per the notification issued by the Department of Social Welfare, GNCTD dated February 08, 2021.[11]
- Protection against Sexual Harassment
A 2021 study conducted by National Student Safety Survey has revealed that students who identified as Transgender or non-binary reported the highest rates of sexual harassment – Two in five (40.3%) non-binary students and one in four (25.8%) transgender students had been sexually harassed in a university context[12].
In India, Section 18 of the Transgender Person (Protection of Rights) Act, 2019 penalizes sexual abuse committed against a Transgender Person with imprisonment upto 2 years and fine. However, recently a Petition has been filed in Hon’ble Delhi High Court to include Transgender women and children as victims under Section 63 of Bharatiya Nyaya Sanhita, 2023 which penalizes the offence of rape against only women on the ground that section 18 fails to provide effective criminal protection to transgender persons, and lacks “graded or proportionate punishment for serious offences such as sexual abuse, physical assault, and exploitation. The High Court has sought a reply from the Central Government opining that such interpretation lies within the ambit of legislature.[13]
- Violation of Privacy Rights
The NLSA Judgement has established that the right to privacy under Article 21 of the Constitution protects personal dignity, autonomy and identity of all individuals including transgender persons[14]. The Digital Personal Data Protection Act, 2023 seeks to safeguard personal information, but breaches involving gender identity or sexual orientation which may significantly identify an individual can expose them to stigma and discrimination.
For instance, in Maximilian Schrems v Meta Platforms Ireland Ltd., Schrems brought an action against Facebook for unlawfully processing his personal data related to sexual orientation (being homosexual) where such data was made public by Schrems in a panel discussion outside the Facebook platform. Facebook also collected data about user’s activities both on and outside the social network including in particular data relating to online platform visits and third-party websites and apps through cookies and social media plug-ins. With the available data, Facebook was able to identify Schrems interest in sensitive topics, such as sexual orientation, enabling it to direct targeted advertising at him.
The Court of Justice of European Union held that the fact that a person has made a statement about his or her sexual orientation on the occasion of a public panel discussion does not authorize the operator of an online social network platform to process other data relating to that person’s sexual orientation, obtained, as the case may be, outside that platform using partner third-party websites and apps, with a view to aggregating and analyzing those data, in order to offer that person personalized advertising.[15]
Possible Conflict between POSH Act and Transgender Act
As stated above, the Transgender Persons (Protection of Rights) Rules, 2020 requires every educational institution to establish a committee that transgender persons can approach in cases of harassment or discrimination. This committee is empowered to take measures ensuring that transgender students are not adversely affected by the presence of those accused of bullying or harassment, including faculty members.
On the other hand, the University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015, issued under the POSH Act, 2013, mandate higher educational institutions to address all forms of gender-based violence.[16]
This position was reinforced by the Supreme Court in Binu Tamta v. High Court of Delhi, where the Court observed that the POSH Act was enacted specifically to safeguard women and that extending its scope to include LGBTQIA+ individuals could dilute its original intent. The Supreme Court therefore suggested the petitioner to make a representation to the Gender Sensitization Committee of the Supreme Court for formulation of another body of Regulations to cover persons belonging to the LGBTQIA+ Communities for their protection from sexual harassment in the workplace i.e. Supreme Court of India.
Conclusion
Therefore, to effectively safeguard the rights of transgender persons against sexual harassment, particularly in educational institutions, it is considered best practice to establish a separate committee dedicated to addressing the specific challenges faced by the transgender community
[1]https://www.apa.org/topics/lgbtq/transgender-people-gender-identity-gender-expression
[2]National Legal Services Authority vs. Union of India, dated April 15, 2014, Writ Petition (Civil) NO.400 of 2012
[3]Para 54, 129, National Legal Services Authority vs. Union of India, dated April 15, 2014, Writ Petition (Civil) NO.400 of 2012
[4]Section 13 of Transgender Person (Protection of Rights) Act, 2019
[5]Rule 10(8) of Transgender Person (Protection of Rights) Rules, 2020
[6]https://www.edudel.nic.in/upload/upload_2025_26/30_38_dt_06012025.pdf
[7]https://www.icsi.edu/media/webmodules/CSJ/14_Article_Mitulkumar_Suthar.pdf
[10]Vihaan Peethambar Vs. Manipal University and Ors., dated January 05, 2024, 2024:KHC:574
[11]Praveen Singh vs. High Court of Delhi and ANR. W.P.(C) 14880/2025
[14]Para 67 of National Legal Services Authority vs. Union of India, dated April 15, 2014, Writ Petition (Civil) NO.400 of 2012
[15]Case C-446/21, available at: https://curia.europa.eu/juris/document/document.jsf?text=&docid=290674&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1
[16]Rule 3(d) of University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015