POLICY BRIEF: TRANSGENDER ACT RULES 2020

TABLE OF CONTENTS

1. EXECUTIVE SUMMARY
2. BACKGROUND
3. IMPORTANT PROBLEMS TO CONSIDER
3.1 NEED FOR THE PSYCHOLOGIST’S REPORT IS UNCLEAR
3.2 APPLICANT MUST BE A RESIDENT OF THE AREA FOR A CONTINUOUS PERIOD
OF ONE YEAR BEFORE SUBMITTING THE APPLICATION
3.3 ABOUT COLLECTION AND SHARING OF DATA
3.4 PENALTY IF AN APPLICANT MAKES A FALSE APPLICATION
4. RECOMMENDATIONS
5. POLICY IMPLICATIONS

1. EXECUTIVE SUMMARY

The Transgender Persons Act, 2019 was formulated for the protection from discrimination
against these people in employment, education, housing, healthcare, and other services. 1 It is
important to provide equal constitutional guarantees to transgender persons. In April 2020, Draft
Transgender Person rules were released by the Social Justice and Empowerment Ministry and
invited any suggestions/comments.
Part II of this paper provides some brief background about the issue and also talks about the
objective of Transgender Persons Act, 2019. Besides, it also states the reason why these draft
rules were formulated.
Part III of the submission talks about the problems with the draft rules, 2020. It further provides
certain recommendations to the problems of the draft to reach its desired outcomes more
effectively.
Part IV of the brief talks about the policy implications to make this Act more effective and help it
out to reach its desired outcomes.

2. BACKGROUND

1
Watch| The Transgender Persons Bill explained (Nov. 30, 2019, 11:33 IST), https://bit.ly/39rVwvt
In NALSA V Union of India2, in 2014, the Superior Court has observed that these people should
be identified as the third gender and enjoys all the fundamental rights. Further, the Court
declared that these persons have the right to declare their gender identity, and dignity under the
constitutional provisions of equality3, liberty4 and freedom of expression5.
From 2014, Center was making efforts to structure the legislation to protect the rights of the
transgender persons. The outcome of these efforts was “Transgender Persons Act, 2019”. The
objective of this act is to protect rights to transgender people, for their welfare, to prohibit
discrimination and to look into other related matters. This 2019 act was criticized by transgender
people, activists, lawyers, students, and many others. They protested by calling that these
provisions violated Judgment of the Superior Court in 2014.
So, in April 2020, the Social Justice and Empowerment Ministry released the Transgender Rules
Act. These rules look after the process of right to self- perceived gender identity, for their socio-
economic development, welfare schemes.
3. IMPORTANT PROBLEMS TO CONSIDER
There are certain problems/issues in the draft which are needed to be solved to facilitate the
inclusive development and to safeguard the interests and of transgender persons. These include:
3.1 Need for the Psychologist’s Report is unclear
Under rules 4(1) and 5(2) of the draft, it was asked by the authorities for the psychologist’s
report. The need for such a Psychologist’s report was not mentioned in the rules of the draft.
3.2 Applicant should at a particular residence for a constant time of one year

Under rules 4(2), 6(3) it was stated that to claim the certificate of identity from the district magistrate,
the transgender persons should be at a particular residence for the constant time of one year in the
jurisdiction of such district magistrate. This impose a lot of burden on transgender persons

3.3 About collection and sharing of data

In Form 1, under Items 7, 8, 14 15, and 16 it was asked to submit the information such as
educational qualification, name of the school or college, who do they live with and source of
income, details about income respectively. The purpose of this information to get an identity
certificate is unclear.
2
NALSA V Union of India, AIR 2014 SC 1863.
3
Article 14, Constitution of India.
4
Article 21, Constitution of India.
5
Article 19, Constitution of India
Under Note 2 of Form-1, it was noted that the information of an applicant will be kept
confidential and sharing of this information will not take place except with the security agencies
of center and state. It does not state the reason for sharing this information with the center and
state security agencies.

3.4 Penalty if an applicant makes a false application

Rule 12 gives information and criteria to impose penalties if an applicant makes an application
with an intention falsely to obtain the status of a transgender person. Since transgender persons
have the right to identify their gender, it is not clear on what basis the Government may identify
a person whether the application filed by the person is false or not.

4. RECOMMENDATIONS

SECTION SUGGESTIO WORDING OF REMARKS(REASON FOR

AND N PROPOSED DELETION/ADDITION/MODIFICATI
CLAUSE (REPLACE/D SUGGESTION ON/OTHERS)
NUMBER ELETION/A
DDITION/M
ODIFICATI
ON/OTHERS
)
Rule 2(d) Modification Rule 2(d) to be read as, To issue the certificate of identity, the need
“‘application’ means for enumeration has no connection with the
form as in form – 1 of purpose and objective of issuing a
these rules.” certificate of identity. Further, this may
lead to a violation of the privacy of
transgender persons. So, the word
enumeration has to be deleted
Rule 4(1) Modification Rule 4 (1) is to be read Rule 4(1) talk about the psychologist’s
as, “The District report which should be deleted. It was
Magistrate shall be mentioned in the act that there is a right for
based on the application transgender persons to indicate and
 and the affidavit determine their gender. In the act, it was
verifies the correctness also mentioned that District Magistrate has
of the place of residence to issue an identity certificate only. As the
of the applicant but gender of transgender persons is going to
without any medical be identified by themselves, it is unclear
examination, except to about the need for the Psychologist’s
issue the certificate of report. Further, the existence of a
identity under Section 7 Psychologist’s report is violative of the
of the Act, the right to gender identity under Article 21.
procedure for which is
prescribed in rule 6.”
Rule 4(2) Modification Rule 4(2) is to be read In rule 4(2), it was stated that to claim the
as, “For the issuance of certificate of identity from the district
the certificate of magistrate, the transgender persons should
identity, the applicant be at a particular residence for the
must have to approach continuous period of one year under the
the district magistrate jurisdiction of such district magistrate.
who is residing near This may impose a lot of burden on
the area of the transgender persons as the expert
applicant.” committee on transgender persons in 2014
has said that transgenders have to face
exclusion from family, unemployment and
may sometimes experience homelessness.6
So, these results show that it is difficult for
transgender persons to stay in a particular
residence for a continuous period of one
year.

Alternatively, for the issuance of the

certificate of identity, the applicant must
have to approach the district magistrate
6
Draft Transgender Persons (Protection of Rights) Rules, 2020, https://bit.ly/3hxipk6
 who is residing near to the area of the
applicant
The proviso Deletion The proviso to Rule The proviso reiterates Rule 7(5), 7(6), 7(7)
to Rule 7(5), 7(6), 7(7) to be and is therefore superfluous. It should be
7(5), 7(6), deleted deleted.
7(7)
Rule 8 Modification Rule 8 to be read as, Rule 8 doesn’t specify the criteria for
“(1) In case of rejection rejecting the application. So, it is
of the application, the recommended to follow specific criteria
District Magistrate shall either on the incompleteness of application
reject the applications or affidavit or if there are any issues in
made under rule 4(1) or verifying the information provided.
6(1), if the application The applicant also should be allowed to
or the affidavit is sort out the errors within 15 days instead of
incomplete or if there rejecting an application directly. This
are any issues in protects the interests and facilitates
verifying the inclusive development of transgender
information provided. persons
(2) Before the rejection
of an application, the
District Magistrate shall
inform the applicant of
the reason or reasons
for rejection and the
applicant an opportunity
to sort out the errors
within 15 days of such
communication.
(3) If the applicant is
unable to sort out the
errors in the time
 provided under rule
8(2), then the District
Magistrate shall
communicate the
rejection of the
application and provide
reasons for such
rejection.”
Rule 12 Deletion Rule 12 is to be deleted It was noted in rule 12 that the penalty was
to be imposed on the applicant who makes
an application with false intention to obtain
the status of a transgender person.
Since transgender persons have the right to
determine their gender, it is not clear on
what basis the Government may identify a
person whether the application filed by the
person is false or not.
Form 1 Modification Note 2 be read as, “. In the Form, it was stated that the
Information given by information of an applicant will be kept
you in this application confidential and sharing of this information
will be kept confidential will not take place except with the security
and will not be shared agencies of center and state. The need to
with any person or share this information with the center and
organization.” state security agencies were not specified.
It further does not specify the security
agencies with which the information needs
to be shared. This violates the privacy of
transgender persons.
If there is any need/ purpose to share this
information, then the separate provision
should be made regarding the purpose.
Form 1 Modification Item 4 to be read as, In the rule, under Item 4 of Form1, it is
“Guardian’s name (only given as “Guardian’s name” instead it
applicable if the should be read as, “Guardian’s name (only
applicant is a minor)”. applicable if the applicant is a minor)”.

Form 1 Deletion Items 7, 8, 14, 15, 16 to In Form 1, under Items 7, 8, 14, 15, and 16
be deleted it was asked to submit the information such
as educational qualification, name of the
school or college, who do they live with
and source of income, details about income
respectively. The purpose of this
information to get an identity certificate is
unclear.
It should be specified if this information is
required for formulating welfare schemes
and separate provisions need to be
formulated rather than just stating in the
form.

Form 2 Modification “son/daughter” to be It would be relevant to use gender-neutral

read as “child”. alternative “child” in place of
“son/daughter”, since the applicant may not
identify within the binary of male or
female.
Form 2 Modification In Item 1, It would be relevant to replace all gendered
 “son/daughter” should language with gender-neutral language
be replaced with since applicants may not identify within
“child”. male or female.
In Item 2, “His/her”
should be replaced by
“their”.

5. POLICY IMPLICATIONS

Findings in this brief have essential implications for scholars, practitioners, policy experts who
are interested in approaching and addressing the rights of transgender persons, in the better
formation of opinion for transgender rights. The larger implications of this brief which are
urgently needed to be considered are:
 To delete the psychologist’s report which is mentioned in rule 4(1) and 5(2) of the draft rules
 Under rule 4(2) and 6(3), alternate measures should be taken that is for the issuance of the
certificate of identity, the applicant must have to approach the district magistrate who is
residing near to the area of the applicant.
 Items 7, 8, 14 15, and 16 under form 1 are to be deleted.
 Under Note 2 of Form-1, the statement of sharing information with the center and state
agencies should be deleted and if there is an urgent need/ purpose to share this information,
and then the separate provision should be made regarding the purpose.
 Rule 12 of the draft rules is to be deleted
These implications help readers understand the problem. Further, the recommendations and
implications help decision-makers understand/solve the problem. These implications also help to
identify the gap in existing research and also provide further steps in pursuing research on this
issue.