“The Transgender Persons (Protection of Rights) Act, 2019”

The Transgender Persons (Protection of Rights) Bill, 2019 was introduced in Lok Sabha on July 19, 2019 by the Minister for Social Justice and Empowerment, Mr. Thaawarchand Gehlot.

The Transgender Persons (Protection of Rights) Act, 2019 is a landmark legislation enacted by the Indian Parliament to ensure the protection of rights and welfare of transgender persons. It was introduced in the backdrop of the Supreme Court’s historic judgment in National Legal Services Authority (NALSA) v. Union of India (2014), where the Court recognized transgender persons as the “third gender” and affirmed their fundamental rights under Articles 14, 15, 19, and 21 of the Constitution.

The Act came into effect on 10 January 2020, aiming to provide a statutory framework for the recognition, protection, and welfare of transgender persons.

Definition of a transgender person:

The Bill defines a transgender person as one whose gender does not match the gender assigned at birth.  It includes trans-men and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar and hijra.  Intersex variations is defined to mean a person who at birth shows variation in his or her primary sexual characteristics, external genitalia, chromosomes, or hormones from the normative standard of male or female body.

Prohibition against discrimination:

The Bill prohibits the discrimination against a transgender person, including denial of service or unfair treatment in relation to: (i) education; (ii) employment; (iii) healthcare; (iv) access to, or enjoyment of goods, facilities, opportunities available to the public; (v) right to movement; (vi) right to reside, rent, or otherwise occupy property; (vii) opportunity to hold public or private office; and (viii) access to a government or private establishment in whose care or custody a transgender person is.

Right of residence:

Every transgender person shall have a right to reside and be included in his household.  If the immediate family is unable to care for the transgender person, the person may be placed in a rehabilitation centre, on the orders of a competent court.

Employment:

No government or private entity can discriminate against a transgender person in employment matters, including recruitment, and promotion.  Every establishment is required to designate a person to be a complaint officer to deal with complaints in relation to the Act.

Education:

Educational institutions funded or recognised by the relevant government shall provide inclusive education, sports and recreational facilities for transgender persons, without discrimination.

Health care:

The government must take steps to provide health facilities to transgender persons including separate HIV surveillance centres, and sex reassignment surgeries.  The government shall review medical curriculum to address health issues of transgender persons, and provide comprehensive medical insurance schemes for them.

Certificate of identity for a transgender person:

A transgender person may make an application to the District Magistrate for a certificate of identity, indicating the gender as ‘transgender’.  A revised certificate may be obtained only if the individual undergoes surgery to change their gender either as a male or a female.

Welfare measures by the government:

The Bill states that the relevant government will take measures to ensure the full inclusion and participation of transgender persons in society.  It must also take steps for their rescue and rehabilitation, vocational training and self-employment, create schemes that are transgender sensitive, and promote their participation in cultural activities.

Offences and penalties:

The Bill recognizes the following offences against transgender persons: (i) forced or bonded labour (excluding compulsory government service for public purposes), (ii) denial of use of public places, (iii) removal from household, and village, (iv) physical, sexual, verbal, emotional or economic abuse.  Penalties for these offences vary between six months and two years, and a fine.

National Council for Transgender persons (NCT): 

The NCT will consist of: (i) Union Minister for Social Justice (Chairperson); (ii) Minister of State for Social Justice (Vice- Chairperson); (iii) Secretary of the Ministry of Social Justice; (iv) one representative from ministries including Health, Home Affairs, and Human Resources Development.  Other members include representatives of the NITI Aayog, and the National Human Rights Commission.  State governments will also be represented.  The Council will also consist of five members from the transgender community and five experts from non-governmental organisations.

The Council will advise the central government as well as monitor the impact of policies, legislation and projects with respect to transgender persons. It will also redress the grievances of transgender persons.

Landmark Case Laws

1. NALSA v. Union of India (2014)

·      Recognized transgender persons as the “third gender”.

·      Affirmed their right to equality, dignity, and self-identification.

2. Justice K.S. Puttaswamy (Retd.) v. Union of India (2017)

·      Right to privacy held as a fundamental right; includes gender identity.

3. Navtej Singh Johar v. Union of India (2018)

·      Decriminalized consensual same-sex relations; recognized LGBTQ+ dignity.

4. Arun Kumar v. Inspector General of Registration (2019, Madras HC)

·      Held that the term “bride” under Hindu Marriage Act includes a transwoman.

5. Hiral P. Harsora v. Kusum Narottamdas Harsora (2016) (relevance)

·      Though on Domestic Violence Act, expanded gender understanding in laws.

Conclusion

The Transgender Persons (Protection of Rights) Act, 2019 is a significant step toward inclusivity and equality. However, its shortcomings—particularly regarding self-identification, reservations, and penal provisions—need urgent reforms.

The judiciary has been proactive in safeguarding transgender rights, but effective implementation and societal acceptance remain the real challenges. True justice will be achieved only when transgender persons enjoy equal dignity, respect, and opportunities without discrimination.

Here are some questions and answers on the topic:

Q1: What was the significance of NALSA v. Union of India (2014) in relation to the Transgender Persons Act, 2019?

In NALSA v. Union of India (2014), the Supreme Court recognized transgender persons as the “third gender” and upheld their right to equality, dignity, and self-identification under Articles 14, 15, 19, and 21. This judgment laid the foundation for the enactment of the Transgender Persons (Protection of Rights) Act, 2019.

Q2: How does the Transgender Persons Act, 2019 define a transgender person?

As per Section 2(k) of the Act, a transgender person is someone whose gender does not match the gender assigned at birth. This includes trans-men, trans-women, persons with intersex variations, genderqueer persons, and individuals with socio-cultural identities such as Hijra, Aravani, Jogta, etc.

Q3: What rights and protections are guaranteed under Section 3 of the Act?

Section 3 prohibits discrimination against transgender persons in areas such as education, employment, healthcare, housing, access to public places, and the right to reside with their family.

Q4: What are some major criticisms of the Transgender Persons Act, 2019?

1.    Mandatory proof of surgery for gender recognition undermines the NALSA principle of self-identification.

2.    The punishments for offences against transgender persons are lighter compared to similar offences against cisgender women.

3.    The Act does not provide reservations in education or employment.

4.    Weak implementation of welfare measures like rehabilitation centers.

Q5: Which other landmark judgments have strengthened transgender and LGBTQ+ rights in India?

·      Justice K.S. Puttaswamy v. Union of India (2017) – recognized right to privacy, including gender identity.

·      Navtej Singh Johar v. Union of India (2018) – decriminalized consensual same-sex relations.

·      Arun Kumar v. Inspector General of Registration (2019, Madras HC) – recognized transwoman as a “bride” under Hindu Marriage Act.