As per the dissenting opinion of Dr D.Y. Chandrachud cited in the case of
K.S. Puttaswamy v. Union of India
Having an individual identity is an important part of the human condition. The
negation of identity is the loss of personhood, which in turn affects the
freedom of choice and free will. Personhood constructs democracy.
The Transgender Persons (Protection of Rights) Bill, 2019 was the second major
institutional development in the transgender discourse after the NALSA
Judgement’s which was considered as path-breaking because the rights of
transgenders in India are addressed here for the first time in this judgement. Transgenders
are an abhinn ang (integral part) of our society,
said the Minister for
Social Justice and Empowerment, Krishan Pal Gurjar while introducing the
Transgenders Rights Bill, on 5 August 2019. Despite being recognised as an
integral part of our society, the journey of this Bill has been riddled with
This Bill suffers from several limitations which have rendered and it is
unfeasible in providing any real relief to the socio-political exclusion of
transgender persons. The Bill consists of many gross versions of the measures
envisaged by the Supreme Court.
The Bill altogether regresses towards a diagnosis-based invasive approach of
gender identification by incorporating the District Magistrate for issuing a
certificate of identity as a transgender person as written under Section 5 of
the Bill. A public procedure of changing one's identity also contributes to
making transgender persons easy targets of discrimination.
According to clause 6(3) of the Bill, the identity certificate shall confer
rights upon transgender persons and be a proof of recognition of identity.
The Bill is silent on whether those who have already changed their identity
documents or have self-attested affidavits identifying as male or female can
claim rights under this law, or other government welfare schemes and programs
meant for transgender persons. There is no mention of whether persons who do
not/cannot get identity certificates as prescribed, will be ‘protected’ or
conferred rights by this law.
In particular, the Bill had failed to incorporate the self-determination model
and provide for basic civil rights for transgender persons. The Bill failed to
facilitate the inclusion of third gender identities in the social sphere.
Thus, it is evident that this Bill has adopted a vague and stereotypical
approach of denying the capacity to self-identify and reinforcing a model of
state control over the private choices of non-heterosexual genders. Although the
Bill was to advance the rights of self-determination and inclusion envisaged by
the operative rationale of NALSA judgement, the Bill only enforces scrutiny and
regulation by taking advantage of the inconsistencies in the midway of the
In order to achieve an inclusive and model of self-identification, I have
identified three stages to achieve the goal effectively and efficiently.
- The first stage is to establish Gender Neutral Laws
- The second stage is to rebuild the social understanding of gender
identity by promoting the Self Determination Model of choosing one’s gender
inspired by the Australian Legislative Framework in this regard.
- The third stage is to create a framework that provides for special
safeguards and measures for persons identifying as the third gender in order
to dismantle the systemic discriminatory practices and attain social
- K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1
- National Legal Services Authority v. Union of India (2014) 5 SCC 438.