INTRODUCTION

Human rights are fundamental human rights and freedoms guaranteed by the individual as a
human being which cannot be created or abolished by any particular government. It includes
the right to life, liberty, equality, dignity and freedom of thought and expression. The right to
choose one’s sexual identity is an essential part of living a dignified life and is subject to Article
21. The Court has granted to the people of India the right to gender identity. The opportunity
for education and skills plays a very important role in the development of jobs and economic
opportunities for the individual. United Nations Convention on the Rights of the Child, 1989
(UNCRC) ‘Children’s education shall be directed to the development of the child’s personality,
talents and mental and physical abilities to the fullest extent possible’; and the Constitution of
India recognizes that ‘education’ as a basic right of children for six to fourteen years, Every
child between the ages of six and 14 shall have the right to free and compulsory education in
neighbouring schools until the completion of primary education. The promulgation of a
separate Act has given impetus to government’s efforts to provide compulsory free education
to children, as it is now a constitutional obligation for the country to provide free education.
India has achieved great growth and development. The development of important indicators of
human development such as literacy, education and health levels. There are indications,
however, that not all disadvantaged groups share equally the benefits of the growth process.
Among these, the transgender community, which is one of the most marginalized and
endangered communities in the country, delays significantly in terms of human development,
including education (Rajesh & Naved 2013). What is shocking is that apart from the act of
consent (booking policies, right to education, etc.) diversity remains a major issue in
transgender society in India. Most people are illiterate or uneducated thus excluding them from
social, cultural, political and economic participation. Along with the neglect of teachers in the
transgender community, social exclusion, poverty, continued discrimination, violence are some
of the key factors that can be attributed to the negative participation of transgender people in
educational activities. Transgender people are people of any age or sex their appearance,
personal characteristics, or character are different from the beliefs that men and women
“should” be (Satashivam 2012). Transgender people have been present in all cultures, races,
and classes since the story of human life was recorded. Only the word “transgender” and
medical technology available to transsexual young people. Transgenders literal meaning is
“more than sex.” Transgender and trans-identified by umbrella terms to represent a variety of
gender identities and expressions (wikipedia). A transgender or highly respected person is a
person with a gender identity, outward appearance or sexual expression that transcends
genetically defined categories. Transgender falls under the LGBT group (lesbian, gay, bisexual
and transgender). According to the 2011 Indian Census, there are 4.9 lakh transgender in the
country. Census data also shows that the population has low literacy rates, with only 46 percent
of the population literate, compared with 74 percent of the general literacy population. This
community falls under the category of “bad group” defined by the Right to Education Act
(Indian Express 2014). It means that these children will be able to be placed at a 25 percent
rate under the Economic Vulnerability Class (EWS) and the category of students who have
been denied access. ‘Transgender’ does not include sexual familiarity or physical sex
characteristics , but is actually a small clinical term related to gender identity and sexual
expression. Transgender people therefore associate those people whose identity and behaviour
are inconsistent with extreme sexuality.

EDUCATIONAL STATUS
According to the 2011 Census1, the total transgender population is close to 4,87,803 of which
57.06% are educated compared to 74% of the total population. In 2011, there were 54,854
children aged 0-6 years. Therefore, these children are in the 10-16 age group today and should
be in our schools. According to a high court ruling in 2014, they should be recognized as a
‘third party’ and should receive recognition under the category of “disadvantaged group”
defined by the Right to Education Act 2009 (RTE). Enrolment is very low and the dropout rate
in primary and secondary schools is still very high. They are not educated at all as they are not
accepted and accepted by society and therefore do not receive proper education. Even if they
are enrolled in an educational institution, they face harassment and bullying every day and are
asked to leave school or leave alone. It is for this reason that they began to beg and work sex .
It is imperative that the Government provide education that includes all transgender students
and provides adult education. In India, some provinces are working to improve transgender.
Tamil Nadu has been the only state that has successfully implemented transgender inclusion
by introducing transgender (aravani, as it is called) social policy. In terms of policy, passers-
by can access Male to-Female sex Reassignment Surgery (SRS) at a Government Hospital, free
housing program, various citizenship documents, admission to public colleges for full higher
education courses, and other livelihood resources through self-help groups and income
generation programs ( IGP). It was also the first state to form the Transgender Welfare Board

1
Available from: http://www.census2011.co.in/transgender. php. [Last accessed on 2021 March 20].
in 2008 with representatives from the transgender community. In March 2009, the government
of Tamil Nadu launched a telephone line called “Manasu” for the converts, a move that
commended the construction of India’s first LGBTQIA community fence in 2011 in Madurai.
The Chhattisgarh government is also making efforts to empower the transgender community
by building a welfare program for about 3000 eunuchs in the government. The Tripura
government announced in July a grant of Rupees 500 per month for transgender people in the
province to ensure their financial independence. The West Bengal government is not far
behind. On October 1, 2015, the government asked the Kolkata Police to recruit recruits for the
Civic Police Volunteer Force (CPVF) to end discrimination and racism.

ISSUES FACED WITHIN EDUCATIONAL SPACES

a) Intra-institutional discrimination : Educational institutions are intended to be safe
havens for all children in India, regardless of their background. Unfortunately for
transgender students, this is still not the case. Currently, in India, the dropout and
passing rates of transgender students are not discussed. According to the most recent
data on pupils enrolled in schools across India, there are just 61,214 transgender kids,
and there are none at all in 12 states and Union Territories. The report was presented to
the Rajya Sabha on March 23 and was based on information from the Unified District
Information System for Education. "You can tell from this report that transgender
persons have been denied their rights. Despite the fact that many transgender and
intersex children do not self-identify in this way, they are more likely to experience
bullying in schools. Bullying based on a sexual characteristic, gender identity, or sexual
orientation must not be tolerated in schools "says trans-woman physician and activist
Dr. Aqsa Sheikh. There are 4.8 lakh transgender people in India, according to the
Census 2011 or any other report. The National Capital Delhi is one of the dozen states
with no transgender students enrolled in schools. The Aam Aadmi Party touts the
education model adopted by the Arvind Kejriwal led administration around the nation
for its comprehensive approach to boosting the education graph in the National Capital.
The lack of transgender pupils in schools has shown significant weakness in the system,
despite the government's efforts to implement international best practices to provide
children with a top-notch education. All children have a right to free, obligatory
education up to the primary level under the Right to Education Act of 2009. The report
made to Parliament, however, reveals that some transgender people have been denied
the opportunity to receive an education. It is required to ensure that transgender people
 are not subjected to discrimination at any level of society under Section 3 of the
Transgender Persons Act. Discrimination is forbidden in institutions of higher
education that fall within the jurisdiction of Rule 10(4). The major responsibility of
educational institutions is to firmly implement the Act's requirements everywhere.

b) High Dropout rates Transgender student dropouts have increased in large numbers in
India and abroad. It's not surprising that the bullying, anxiety, and depression
transgender students endure have an impact on their academic performance given that
battling with mental health is one of the most important reasons young people drop out
of high school.

c) Stigma and associated mental health issues Due to stigma and discrimination,
transgender people have a greater incidence of mental health issues than the general
population. In addition to a higher prevalence of mental health conditions, transgender
people frequently face obstacles to receiving medical care, such as abuse, provider
ignorance, and rejection of care.

THE POLICIES REGARDING TRANSGENDER COMMUNITY IN INDIA

In India the legal position of the transgender can be traced through The Transgender Persons
(Protection of Rights) Act, 2019. As per the act, it involves medical documents to be furnished
as a necessary condition to be recognized as a Transgender. It involves an individual to first
apply for a "transgender certificate" from their local District Magistrate.2 For a "change in
gender certificate," transgender can avail the option to change a person's legal gender to male
or female. The person must, however, submit a hospital-issued certificate of surgery to the
District Magistrate for a second examination, and the official must be "satisfied with the
correctness of such certificate," 3 This gives one government entity unprecedented ability to
decide which transgender people "qualify" for recognition as who they are. No one should be
forced to adopt medical procedures such as sex reassignment surgery (SRS), sterilization or
hormonal therapy for legal recognition of their gender identity.4 In order to prevent oppressive
preconditions like forced sterilization, forced therapy, and divorce, states should instantly issue
legal identification documents that confirm one’s preferred gender. This has been highlighted

2
Sec 5, The Transgender Persons (Protection Of Rights) Act, 2019.
3
Sec 7,The Transgender Persons (Protection Of Rights) Act, 2019.
4
National Legal Ser. Authvs Union Of India &Ors, WRIT PETITION (CIVIL) NO.400 OF 2012(2014)
as one of the recommendations in the Report of the Office of the United Nations High
Commissioner for Human Rights. Sweden, Netherlands and Australia have done away with
forced sterilization, forced therapy and divorce as preconditions of issuing gender identity
documents as per the UN Report. Similarly, WHO and the Asia-Pacific Transgender Network
has also recommended to states to take legislative, administrative and other measures for
recognition of a person’s gender identity without medical requirements and also without
subjecting them to discrimination on any grounds. As per the judgement of the Apex Court in
NALSA vs. UOI5, it recognized the right of transgender individuals as a “third gender” and
further provided that under Article 19(1)(a), it includes within its ambit, one’s right to express
his ‘self-identified gender’. “Self-identified gender can be expressed through dress, words,
action or behaviour or any other form.” Although, the above provisions of the Transgender
Act, 2019 are in contravention to the Apex Court’s ruling which have introduced a necessary
procedure to be complied with to be recognized as a Transgender legally. The right to be
recognized as a person before the law is guaranteed in various international human rights
conventions and is a critical component of affirming each person's inherent dignity. Legal
gender recognition is also an essential component of other fundamental rights, such as of
privacy, freedom of expression, and rights to employment, education, health, etc.6 Article 26
of the International Covenant on Civil and Political Rights has also been reinterpreted to
include within its ambit transgender persons also under the category of sex to prevent any
discrimination against them in line with the principle of equal protection given to all. Similarly,
Article 9 of the International Covenant on Civil and Political Rights has been interpreted to
ensure that the right to liberty is available to “everyone” which includes persons who identify
7
themselves as member of LGBTQ community. “In Nepal, trans persons may only register
under the “Others” category regardless of what gender the person identifies with, while India’s
recent 2019 Transgender Persons Act denies transgender persons their fundamental right to
self-identification.”8

5
Ibid
6
Human Rights Watch, (https://www.hrw.org/news/2019/12/05/indias-transgender-rights-law-isnt-
worthcelebrating) last visited 25th June, 2022
7
A J Agrawal, Need for Recognition of Trans Rights in International Human Rights Law, Centre for Law and
Policy Research.
8
Ibid.
NATIONAL EDUCATION POLICY
National Education Policy 2020 is the first education policy of the twenty-first century to
replace a 34-year-old national education policy, which was originally introduced in 1986.
Access, Equity, Quality, and Accountability are the four pillars on which the new NEP is built.
In place of the previous 10+2 structure, the new policy will have a 5+3+3+4 structure that
consists of Twelve years of school and three years of Anganwadi/pre-school. This policy,
which is in line with the 2030 Agenda for Sustainable Development, seeks to transform India
into a thriving knowledge society and a global knowledge superpower by making school and
college education more all-encompassing and multidisciplinary. The primary objective is the
development of practical knowledge and skills, which will start in sixth grade. One common
entrance exam, administered by NTE, will be required for admission to all higher education
institutions. There will be various entry and departure points, and individuals can begin and
stop their education at any moment with the option to resume it later. The policy dedicates a
part to girls' and transgender education and establishes a Gender Inclusion Fund (GIF) to
strengthen the country's ability to offer equal, high quality education to all girls and transgender
people. Up to 50% of applicants who are accepted must receive financial aid in some form,
with at least 20% receiving full scholarships. `With a few exceptions for some topics, the
Central Board of Secondary Education (CBSE) prescribes NCERT textbooks for grades I
through XII. As per the NEP 2020, NCERT, SCERTs, schools, and educators will work
together to make concerted efforts to drastically reduce the weight of textbooks and school
bags through appropriate adjustments in curriculum and pedagogy as mentioned in the "Policy
on School Bag 2020."

OTHER GOVERNMENT SCHEMES

A person being born as a human till his/her death always strives to achieve the 5 things. They
are food, clothes, shelter, money and power. These can be achieved in a hierarchical order.
There are like 5 stages. According to Abraham Maslow's theory of hierarchy of needs, there
are 5 types of needs which are also to be achieved hierarchically and they are Physiological
needs, Safety needs, Social needs, Esteem needs, Self-actualization needs. Health and
education are placed for safety needs and social needs respectively. If the transgender
community needs to be educated, they should be in a place where they are available with the
basic things like food, clothes and shelter and then followed by health. It is the govt. duty to
uplift the downtrodden sections of the society to achieve the overall development of the
country. As a part of it, section 3, 13, 14, 15 of the Transgender Persons (Protection of Rights)
Act, 2019 urges the GOI to provide the transgender community with basic amenities like food,
medical care, shelter, education and skill training for selfemployment through so many social
welfare programs like SMILE, Garima Greh, PMDAKSH and so forth under the Ministry of
Social Justice and Empowerment.

CONSTITUTIONAL SAFEGUARDS
The fundamental rights are a crucial component of a person’s life which gives them rights to
enjoy and flourish in their lives. Fundamental rights are the rights that are pivotal to their being
also provide legal recourse for a person when these rights are violated by someone else, be it
another person or the government. The idea that people have different gender identities, that
defines them and shapes their future, have a right to be protected like any other straight person’s
rights. The basic theme of National Legal Services Authority v. Union of India judgement9 has
been to prove again and again the equality between people who are binary gender, sex and
sexual orientation, and people who fall outside that narrow bracket. It is also surprising to see
how a connection between the transgender community and fundamental rights had to be
established by the judges as if this connection did not exist before. A mere human existence is
not enough to be eligible to be a holder of rights. The whole point of the written document
known as the constitution of India is to cement legally on paper the rights of all that are innate
to individuals and not cement the rights for picking and choosing whom they apply to. Also
the base of whole judgment is created on the fact that there can be more genders than just
female or male.10 The honourable judges started after tacitly establishing a connection between
transgender persons and article 1411the term “person” shows that no discrimination is done on
the basis of sex or gender identity. ‘Transgender Persons’ cannot be subjected to unfair
treatment in educational institutions or at the time of employment. They also have the right to
equal health services, and the right to use public property or the right to freely move in the
country. Referring to Article 15 of the constitution of India, again the court has established and
emphasized that within the word ‘sex’ used under Article 15, ‘gender’ was always included, as
both gender and biological attributes constitute distinct components of sex. This article further
prohibits any sort of discrimination on the basis of race, religion, caste or sex or any of them.12
This implies that discrimination or ill-treatment of Transgender Persons infringes their basic

9
National Legal Services Authority v. Union of India, (2014) 5 SCC 438
10
Transgender rights: historical, constitutional, legal perspective and critique, B&B Associates
11
INDIA CONST. art. 14
12
NDIA CONST. art. 15
fundamental right. In the case of Mx. Alia SK v. The State of West Bengal and Ors,13 the court
held that Transgender persons have the right to seek admission into universities. The judgement
is important because it signified the role of courts in ensuring that special accommodations and
adjustments are made to include transgender people in the process of public university
applications and admission process where none exist. Further constitution of India also
enumerates Article 19 which grants every citizen the freedom of speech and expression.14 This
includes the freedom to express your gender identity publicly. Self-identified gender can be
expressed through dress, words, action or behaviour or any other form. Gender constitutes the
core of one’s sense of being as well as integral part of a person’s identity. Legal recognition of
gender identity is therefore part of the right to dignity and freedom guaranteed under our
constitution. Article 21 which deals with the protection of life and personal liberty states that
no person shall be deprived of his life and personal liberty except according to the procedure
of law. 32This right states that every individual including a transgender person has the right to
life and personal liberty. The transgender person being a citizen of India should have the full
right to protect their life and personal liberty. Education & skills opportunity plays pivotal role
in enhancing jobs and economic opportunities for an individual. The Constitution of India
under Article 21A33considers‘education’ as a fundamental right for children for six to fourteen
years. Every child of the age of six to fourteen years shall have a right to free and compulsory
education in neighbourhood school till completion of elementary education.

JUDICIAL PRONOUNCEMENTS
India has achieved significant growth and development. It has improved on crucial human
development indices such as levels of literacy, education and health. There are indications,
however, that not all disadvantaged groups have shared equally the benefits of the growth
process. Among these, the transgender community, one of the marginalized and vulnerable
communities in the country is seriously lagging behind on human development indices
including education. What is appalling is that despite affirmative action (reservation policies,
Right to Education, etc.) and various safeguards backed up by the constitution of India the
disparities remain substantial among the transgender community in India. Majority of the
population is uneducated or undereducated thereby excluding them from participating in social,
cultural, political and economic activities.

13
Mx Alia SK v. The state of West Bengal and Ors., W.P. No. 21587 (W) of 2019.
14
Indian Const. art. 19
Following the NALSA judgment, and for the purpose of safeguarding transgender rights under
Part III of the Constitution, the Transgender Persons (Protection of Rights) Act,2019 was
introduced. Under this Act, the Central Government is directed to provide the following
educational and employment rights to the transgender community. Prohibition on
discrimination against a transgender person, including denial of service or unfair treatment in
relation to inter alia (i) education40 (ii) employment15
Section 13: Every educational institution funded or recognized by the appropriate Government
shall provide inclusive education and opportunities for sports, recreation and leisure activities
to transgender persons without discrimination on an equal basis with others as well as access
to adequate amenities.
Section 14: says that the appropriate Government shall formulate welfare schemes and
programs to facilitate and support livelihood for transgender persons including their vocational
training and self-employment.

CONCLUSION
Gender is a pervasive social concept that holds sway over every person in our society. The
traditional dichotomous identity framework is oppressive, particularly for the other-gender
population, whose sense about themselves as gender specific people is at odds with the gender
assigned at birth. When others attempt to impose traditional gender boundaries, other gender
people are targeted for mistreatment. The strict gender binary should indeed be eliminated,
either entirely or enlarged to include more gender identities. Unlike the cisgendered
individuals, the transgender individuals experience significant amount of education and health
disparities associated to the discrimination and limited access to the resources. In 2020, when
the CBSE released the result of classes 10 and 12, it was found that in class 10 only nineteenth
students were registered as transgender persons and in class 12 only six students were
registered as transgender person. This shows how rights are not equal for everyone. Some
individuals have to face consequences just because they don’t “fit” under the binary norms.
Many petitions were filed, laws were challenges and policies were being made for the
transgender equity, however there is still lack in the implementation part too. Lack of

15
Sec 3(b), Transgender persons (protection of rights) act, 2019, No. 40, acts of parliament, 2019 (India).
awareness and sensitivity are one of the main reasons for the discrimination. There is not even
a single mention about transgender community in any of the classroom textbook. Therefore,
there is an ardent need of sustainable and right-based policies and laws that would facilitate
them so that they could exercise their rights without living in fear. One of the main reasons
why laws still lack inclusivity is because the opinions of transgender community are not taken
into consideration while making law and policies. Hence, community participation is a very
important factor for the overall development of the transgender community so that they could
live a dignified life.