Beyond Recognition: Gender Equality, Human Dignity and the Treatment of Transgender Persons During Arrest and Custody in India

The recognition of transgender persons as rights-bearing individuals under constitutional and international human rights law represents one of the most significant developments in contemporary equality jurisprudence. In India, the landmark decision of the Supreme Court in National Legal Services Authority v. Union of India transformed the legal understanding of gender identity by recognizing the right of every individual to self-identify and express their gender. The enactment of the Transgender Persons (Protection of Rights) Act, 2019 further strengthened statutory protection against discrimination. Despite these developments, transgender persons continue to face significant challenges within the criminal justice system, particularly during arrest, search, detention, and imprisonment. This article argues that the formal recognition of transgender rights has not translated into effective custodial protection. The Bharatiya Nagarik Suraksha Sanhita, 2023 retains a predominantly binary structure and does not provide comprehensive procedural safeguards for transgender persons. Consequently, transgender individuals often face misgendering, invasive searches, arbitrary custodial placement, and heightened risks of violence and humiliation. Drawing upon constitutional principles, judicial precedents, statutory frameworks, international human rights standards, and comparative legal experiences, this article examines the gap between legal recognition and lived reality. It contends that genuine gender equality requires the transformation of custodial institutions from binary administrative structures into rights-based systems that respect dignity, autonomy, privacy, and self-identification