Transgender community has been wronged in several countries for
centuries. It is sad to see that this gender of society even today struggles
for their rights. In this essay, I intend to critique the transgender
(protection of rights act ), 2019 (The Act).
This essay will talk about how
this act which is supposed to be for the welfare of transgender is
actually murder of gender justice as it fails to accommodate the basic
things that the transgender have longed for since eternity.
This bill was passed
in Parliament, the same day the abrogation of article 370 took place and was
thus, passed without any debate and its importance was also completely
Transgender have always overlooked and their rights were not and
are still not considered important. They still are deemed inferior to the cis-gender
population by public and the Indian legal system. It was as late as in 2011,
when for the first time census included transgender as the third sex and
reported that there are around five lakh transgender people in the
This essay is further divided into three parts. First, it explains
the brief background of how transgender protection of rights 2019 act came into
being and how it is different from the previous bill. In the second, the essay
talks about the concerns the act entails which is divided into four sub-parts
(definition, discrimination, procedural, administrative) and then the essay
moves on to giving reformative suggestive measures.
How the act came into being?
In 2014, the court gave the landmark judgement in the case of National Legal
Services Authority vs. Union of India and gave transgender their long due
right to self-identify themselves. The government had to follow up on this
judgement. Tirauchi Siva, a member of DMK, for the first time, put forth private
members bill for transgender.
This bill was soon passed in Rajya Sabha and
was moved to Lok Sabha. This bill, which actually had provisions that uplifted
and protected the transgender community, was not taken up for discussion in Lok
Sabha. Another bill in 2016 was introduced, which faced heavy criticism from the
community members and activists.
It was taken under review and report was
prepared by the parliamentary committee and was sent to the government which was
rejected. It led to the introduction of a new bill in 2018 with 27 amendments.
This bill even though had several changes, didn't uplift the transgender
community and didn't even put them at par with the cis-gender men and women. It
is becomes evident on reading The Act that no assistance was taken from the
people of transgender community as even the basic definition of transgender was
erroneous. There are numerous concerns in the act throughout.
Why the act is not reformative?
This act's failure to define transgender is reflective on the Indian
legal system. The act which is supposed to be for the welfare of the transgender
community, fails to even describe them and mixes it with the definition of
intersex person. It is a shocking misrepresentation as there is a lot of
difference between a transgender and an inter sex person. Another term which
the law makers failed to see from the point of view of transgender is the term
'. It is defined under section 2(c) of the act. It is, for the purposes
of this act, said to “mean a group of people related by blood or marriage or by
adoption made in accordance with law”
This definition of family is banal.
It fails to include what truly is important to a transgender person. There is a
need for an expansion of the term family mentioned in the act as
most transgender people do not live with their blood family as more often than
not, they face mental or physical abuse, lack of support, criticism and shame.
They prefer living with people from their community, which they have themselves
chosen and that family needs to be included in the realm of the term family.
The discrimination that started with Criminal Tribes Act, 1871 still
persists. The previous bill (2016) had the provision which criminalized begging
and sex work which was removed from the new act. However, a new clause was
introduced, section 18 (a) of Chapter VIII makes “compelling or enticing a
transgender person into bonded labour
” an offence.
It should be noted
already an act called Bonded Labour System Abolition Act is in force which
criminalizes bonded labour for all genders without any discrimination. It is
evident that addition of this provision is futile.
The words have been carefully
mended and the sole reason for introduction of this provision in The Act could
be to criminalize sex work and begging indirectly. The twisting might help the
lawmakers in implementing what they wanted to implement earlier but failed to
due to the criticism.
The discrimination extends to sexual offences as well.
Section 18 (d) of The Act says “any abuse towards transgender would be punished
by 2 years of imprisonment
This includes sexual abuse and violence against
transgender person which would even endanger their life. The punishment of two
years clearly implies that offences against transgender are considered “petty
”. Over the year sexual abuse against transgender has been rampant but
still is ignored and this is an example of it. Under IPC, offence of rape
against cis-gender women is punished by 7 years and punishment for the same
offence against transgender is very less. This clearly reflects the prejudice
of the lawmakers in enacting the act against the transgender person.
Certain issues related to the identification process which were there in the
2016 bill and still persists in the 2019 act. Even though the district
screening committee which existed in the previous bill has been removed
after heavy criticism and now, District Magistrate has the power to issue the
transgender person a certificate. The certificate, according to section 5, is to
be issued on the presentation of several documents by the transgender
The act however, fails to address the fundamental question of what
all documents are needed. Since, the act is silent on this aspect, it makes it
very challenging for transgender person to get a certificate without any hassle
or harassment at the hands of executives. The identification process is not
transparent and fails to respect the privacy of transgender persons. There
numerous other problems in the process of obtaining a certificate. Under section
7 of the act it is mentioned, if a person wishes to change their gender to male
or female, they will have to go through the process of sex reassignment
Archaic thinking and lack of awareness has led to the addition of
this provision in The Act. After the sex reassignment surgery the proof has to
be shown to the district magistrate of the surgery and it is up to the District
Magistrate to decide whether surgery is valid or not and whether the certificate
should be issued or not. Sex reassignment surgery specifications are also
not mention in the act, which is necessary as there is several types' sex
The district magistrate can dismiss the request of the
transgender person without giving any reason. There are no checks on
this unfettered power of District Magistrate to issue certification to
transgender person. Post-change in the gender identity of the person, the person
can only change their first name and not their last name under no circumstances
the person is allowed to change their last name. The sole reason in not
letting the person change their last name is the age old prevalence of caste
system in India which is extremely problematic.
Efficacy of Administration
The Act has a provision under section 16 for the formation of a Nation Council
for Transgender, which is supposed to work for the welfare of Transgender
community. The composition of National Council for transgender person is of 30
people out of which only 5 are from the transgender community.
of these 5 people will be done by the central government employees.  This
might lead to questioning of the independence of the National Council for
Transgender as it seems attached to the government and would fail to point out
government's error in various places.
Another issue is related to the complaint
officer, mention under section 11 who will deal with complaints relating
violation of this act. This is a position which needed to great extent for the
implementation of this act. The Act, however, does not say anything about
the nomination process of complaint officer. So, as of now, a complaint officer
is a non-existent and when the process clarified then the independent nature and
efficacy of the complaint officer can be debated about.
Section 8 of the Act speaks about rescuing and rehabilitation of transgender
people.This clause of the act mentions that transgender can take shelter in
shelter homes but transgender more often than not face sexual abuse mental abuse
in these places and are apprehensive about living in such places and find Solace
in living with community. The transgender doesn't need policing about where to
live and where not to live but they need laws that protect them from mental and
physical torture in which ever replace they reside. There is restriction on the
movement of transgender out of the family without a court order.
It has been
seen that transgender have often left their family and immediate family due to
discrimination, mental and physical abuse. If they want to live life around
people of their community, this provision of mandates them to get a court order
in order to leave the family. This has crippled the transgender who do not have
access to courts of law. The freedom to move have been taken away from the
transgender through this clause and the only alternative of a family is a
rehabilitation centre where transgender people experience similar problems.
The government needs to realize the faults that they have made in
the act and correct it because the Transgender (protection of rights) Act 2019
will take precedence over the judgement in the case of National Legal Services
Authority vs. Union of India and will be effective law till the time it is
struck down by the Supreme Court. This act basically has put transgender in a
worse position than they already were. It has legitimized the stereotype that
transgender are different from other genders and has reinforced the already
existing stereotype that they don't deserve equal treatment as cis-gender men
The Act lacks an enforcing authority for discrimination and remedial measures
for discrimination against the transgender. The Act doesn't talk about health
policies, which are critical to the transgender community. This act is not
enacted to give transgender their rights but to side-line them. India, when
compare to its south-Asian counterparts, has been the last to acknowledge that
there is a need for welfare policies for the transgender.
National Legal Services Authority vs. Union of India
judgement was also
the last one to come when compared to Pakistan's and Sri Lanka's
courts. Bangladesh, even before the landmark case in India, had already
passed an effective law giving transgender their rights. In India, despite
the judgement being in the favour of transgender, their travesty of rights and
struggle to self-identify still continues as the administration overlooks the
actual needs of this marginalised community. The government needs to stop
policing the transgender community and should aim at securing their rights not
- Murder of Gender Justice: Activists Call Out 'Trans (Phobic) Bill' for
Violating Fundamental Rights, News18 (2019),
(last visited Jun 2, 2020).
- The Third Sex: Transgender persons in India want to be treated as
citizens. Is this too much to ask for?, 48 Economic & Political Weekly 9
(2013), https://www.jstor.org/stable/23528827 (last visited May 18, 2020).
- National Legal Services Authority v. Union of India, WP (Civil) No 400
of 2012 (2014).
- Standing Committee on Social Justice and Empowerment (2016-2017),
(2017), http://126.96.36.199/lsscommittee/Social%20Justice%20&%20Empowerment/16_Social_Justice_And_Empowerment_44.pdf (last
visited Jun 2, 2020).)
- Sexuality, sexual politics and sexual rights, 23 Reproductive Health
Matters 197-207 (2020), http://www.jstor.org/stable/26495882. (last visited
Jun 1, 2020).
- Transgender (protection of rights) Act,2019, 2(c) (2019).
- Ibid at 7
- Ibid at 4
- Transgender (protection of rights) Act, 2019, 18(a) (2019).
- Bonded Labour System (Abolition) Act,1976
- Ibid at 4
- Transgender (protection of rights) Act,2019, 18(d) (2019).
- Ibid at 4
- Transgender (protection of rights) Act,2019, 5 (2019).
- Transgender (protection of rights) Act,2019, 7 (2019).
- Ibid at 5
- Ibid at 4
- Transgender (protection of rights) Act,2019, 16 (2019).
- Transgender (protection of rights) Act,2019, 16 (2019).
- Transgender (protection of rights) Act,2019, 8 (2019).
- Dipika Kimberly & Jain Rhoten, A Comparison of the Legal Rights of
Gender Non-Conforming Persons in South Asia, 48 Economic & Political Weekly
10-12 (2013), http://www.jstor.com/stable/24477885 (last visited Jun 12,
- Ibid at 23