POLICY/ LEGISLATIVE ANALYSIS

POLICY/ LEGISLATIVE ANALYSIS

TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT,

2019

HISTORICAL EVOLUTION OF THE LAW

The existence of ‘Hijras’ and other Transgender communities are not an old concept in India and
have had a strong presence in Hindu mythology as well as our religious texts. Transgender
community of India comprises of Kothis, Aravnis, Shiv Shaktis, Jogappas etc. As of the 2014
census there are 490,000 transgenders in India and there has always been a void in the legislature
guaranteeing equal rights and protection from discrimination.

NEED FOR TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019

On the 15th of April 2014 the Supreme Court of India delivered its judgement on National Legal
Services Authority v Union of India 1where the judgement recognized the right of people to
maintain perceived gender identity protected by the Constitution where gender reassignment
surgery was not considered compulsory and Transgenders were recognized as a third gender.

Navtej Singh Johar v Union of India 2, in this case the constitutional validity of Section 377 of
the Indian Penal Code was questioned and led to the decimalization of all consensual sex among
adults which for the first time included homosexuals.

LONG CRONOLOGY OF PASSING THE BILL IN THE PARLIAMENT

The Act was first introduced in 2016 which was met with a lot of protest by the lawyers and the
transgender community a newer bill was introduced in 2018 this did not include the

1
National Legal Services Authority v Union of India, (2014), MANU SC 0309 (India)
2
Navtej Singh Johar v Union of India, (2018), MANU SC 0947 (India)

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recommendations made by the standing committee and the bill was criticized for the same. The
Lok Sabha passed the bill in 5th August 2019 and by the Rajya Sabha on 26th November 2019.
The Presidential assent was given on 5th December and was finally published in the official
Gazette of India. The Act has since been in effect since 10th January 2020.

OBJECTIVES OF THE ACT-

The transgender community in is a marginalized community and as they officially

constituted a third gender and did not fit into the binary gender setup special
provisions were needed to protect their rights and to be treated as the equals to
males and females.

These provisions include-

 Preventing discrimination against transgenders.

 Confer the right of a ‘self-perceived identity’
 Define a transgender person.
 Making sure that no establishment discriminates against transgenders for
education, employment, promotions and other issues.
 Making sure that they are provided the medical help and aid necessary.
 A redressal mechanism is established and establish punishments to be
conferred on those who violate the provisions of the act.

SUMMARY OF PROVISIONS

There are a total of 23 Sections-

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 Section1- It deals with the Title of the Act and the extent of the enforcement of the Act.
 Section2- Section 2 deals with all the definitions which are relevant to the act which
includes “family, inclusive education, institution, national council, persons with intersex
variations, transgender person etc.” Two most important definitions include-
 “Persons with intersex variations”- which refers to a person who has
variations in their primary sexual characteristics, chromosomes, external
genitalia or hormones then the normative standards of the male or female
body.
 “Transgender person” – A transgender person is a person who does not
match with the gender assigned to them at birth. This includes both
transgender men and women irrespective f whether the person has
undergone the gender reassignment surgery or hormone therapy or laser
therapy any other therapy. This also includes genderqueer and people who
have socio cultural identities such as kinner, hijra, aravani and jogta.

 Section 3 – Deals with the prohibition of discrimination and lays down the grounds under
which they cannot be discriminated against which includes education, employment,
healthcare, right to environment, right to free movement, right to hold public/private
office etc.
 Section 4- Deals with recognition of the identities of transgenders and any transgender
under Sub section (1) will have a right to a self-perceived identity.
 Section 5 & Section 6 & Section 7- This section deals with the issuing of a certificate of
identity. A transgender person may apply for a certificate of identity, indicating the
gender as ‘transgender’. In case of minors the application is made by a parent or guardian
of such child. A revised certificate is issued with proof of medical procedure.
 Section 8- Deals with Obligation of appropriate Government the appropriate steps would
be taken by the government for the inclusion and inclusion of transgenders in society.
This includes vocational training, rehabilitation, employment initiatives which are
sensitive to transgenders.

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 Section 9- It deals with prevention of discrimination at the workplace.

 Section 13, 14, 15- These sections deal with the right to social security through
education, welfare schemes of the government and specialized healthcare facilities.
 Section 16- In deals with the formation of National Council for Transgender persons and
also the constituent members. It would be chaired by the Minister of Social Justice,
Ministry of Social Justice as the vice chairperson, representatives from ministries of
health, home affairs and Human recourse Development. The committee includes
representatives from the state governments, finally 5 members from the transgender
community and five experts from non-governmental organizations.

CRITICAL ANALYSIS OF IMPLEMENTED POLICIES

PROBLEMS WITH CERTIFICATION & CONFIDENTIALITY

The certification process for transgender is set up as a two-step process the first step requires for
an application for a transgender certificate to a district magistrate of the locality where the person
resides this is not only in violation of right to privacy protected under the constitution but there
are no remedial provisions provided that in case the certification clearance is denied how a
person could seek relief. The second stage is a certificate providing clearance for change in
gender in official documents and for this providing a proof of gender reassignment surgery is
compulsory and must be issued by the hospital where the surgery is conducted even after
providing the required documents it is up to the District magistrates discretion as to the
correctness of the documents provided which violates the rights to privacy and puts the poor
transgenders at a disadvantage if they cannot afford the surgery they are forced to live without
the recognition they deserve. Even if the act makes clear that they have freedom of choice of
their gender but such documentation and restrictive provisions essentially hurts the fundamental
purpose of the act.

LACK OF ADEQUATE PENALTIES OR VIOLATION OF RIGHTS-

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As per the provisions in the act there is a mere 6-month penalty with a maximum of 2 years with
a fine, contrary to this the Indian Penal Code of 1860 gives a minimum punishment of 3 years for
the assault or use of criminal force used against a woman with the intent to disrobe. Even though
Transgenders have had a long history of forced prostitution and sexual assault the punishment
prescribed is insufficient.

LACK OF RESERVATIONS –

When the Transgender Persons Bill was first introduced in 2014 there was a provision for a 2%
reservation being provided to Transgenders in government and government aided primary,
secondary and higher education this was in line with the NALSA judgement where it was
adjudged that the Transgenders need to be treated as Socially and Economically backward. The
Madras High Court in the Swapna v Chief Secretary case provided directions to the state to
provide for reservations to the Transgender community within 6 months but the Act failed to
provide for the same.

LACK OF MARITAL RIGHTS –

Even after the decimalization of Section 377 3and recognition for consensual sex between
homosexuals there have been no efforts made in this act to recognize the marriages of same sex
couples. By providing such a provision it would not only provide the much-needed recognition
to the marriages and by legalizing them benefits such as maintenance, succession etc would be
made accessible to transgender.

NO SATISFACTORY DEFINITION FOR TRANSGENDERS, INTERSEX PERSONS,

FAMILY-

 Section 2 of the act deals with the definition of transgenders but it seems that there is a
lack of providing definitions specifically tailor made to cater to the needs of transgenders
for example the definition of ‘family’ is borrowed from other acts and does not include
chosen families even after being requested by transgender as many a times parents
abandon their children when they find out their children are transgenders.

3
Indian Penal Code,1860, § 377

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 There is no clear understanding and distinction between intersex persons and

transgenders in the definitions provided in the first line it defines transgenders and the
very next adds intersex persons in the very same definition showing a lack of
understanding the two different concepts. Transgenders are individuals who have
different gender preferences than they are born with whereas intersex persons are
individuals with medical conditions due to problems in development of sexual organs and
the mixing of these concepts is a disservice to the two.

LACK OF PROPER REPRESENTATION IN NATIONAL COUNCIL FOR

TRANSGENDERS-

The council of transgenders consists of only 5 transgenders out of a total strength of 30 thus
leading to lesser representation and the nomination of the 5 transgenders in the committee is to
be on the discretion of the Central Government thus compromising the autonomy of the
committee members. There is a need to provide autonomy to the council and minimize political
interference and provide better representation.

JUDICIAL RESPONSE

The act was not met with a very warm response form the transgender community of India rather
there were widespread protests in India and many Transgender activists and NGOs showed their
dissent and two writ petitions were filed in the Supreme Court.

 Swati Bidhan Baruah vs Union of India4- On 11 December 2019 a Transgender

Advocate of Assam filed a writ petition challenging the provisions as unconstitutional
and in violation of NALSA judgement and fundamental rights under Articles 14, 15, 16,
19 and 21 of the constitution. On 12th June 2020 the three-judge bench of Justice Bobde,
Justice AS Bopanna and Hrishikesh cleared the notice to the union but did not provide for
a temporary halt on the Act.

4
Swati Bidhan Baruah vs Union of India, (2020), MANU, SCOR, 11313, (India).

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 Grace Banu Ganeshan & Ors. vs Union of India & Ors 5. - Notable Transgender
Activists such as Grace Banu and Vsanti Mogli also filed a second Writ petition. The
petition sought relief by declaring sections 4, 5, 6, 7, 12(3), 18(a) and 18(d) of the
Transgender Protection Act as ultra vires and uphold the NALSA judgment.
*Both these writ petitions are pending in the supreme court.

CONCLUSION
The main goal of the act was to provide transgenders with freedom of self-perceived identity
which it failed to do. With the Act also not consistent with previous Supreme Court judgements
there is still a large scope for improvements in the Act and with several writ petitions filed
challenging the validity of the act.

In India the queer rights are still in their infancy and are going to be a highly litigated topic in the
future. TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019 will see a lot of
changes in the near future to become a more inclusive law which gives the Transgender the equal
rights and protections. All is not lost as the Act as it is the step in the right direction and with the
political environment in India which does not allow speedy passing of bills by the parliament it is
now up to the Supreme Court to make recommendations and make sure the Union implements
these changes guiding the laws in the right direction and uphold our constitutional values.

Refences-

National Legal Services Authority v Union of India, (2014), MANU SC 0309 (India)……….…1

Navtej Singh Johar v Union of India, (2018), MANU SC 0947 (India)…………………………..1

Indian Penal Code,1860, § 377……………………………………………………………………………………………………….……….5

Swati Bidhan Baruah vs Union of India, (2020), MANU, SCOR, 11313, (India)…………….….6

5
Grace Banu Ganeshan & Ors. vs Union of India & Ors, (2020) MANU, SCOR, 30188, (India).

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Grace Banu Ganeshan & Ors. vs Union of India & Ors, (2020) MANU, SCOR, 30188, (India)...6