Transgender people in India have not only been discriminated but their basic
rights also have been deprived off. After facing lot of discrimination, a case
was filed before the Supreme Court of India by National Legal Services Authority
in 2012 on behalf of transgender (NALASA VS.UOI), where a petition was filed
for demanding legal status with respect to their gender identity and equal
rights like every other citizen of India. Finally Supreme Court delivered its
judgment after two year in NALSA V. UOI in 2014, in which it was upheld that
transgender will be recognized as the third gender and equal fundamental rights
will be granted to them.
Meanwhile a private member bill was presented in
Rajya Sabha by Tiruchi Siva of the Dravida Munnetra Kazhagam named Rights of
Transgender Person Bill, 2014. In this it was argued that other countries in
the world has made a laws and rules to protect the rights of transgender and in
India all the basic rights are being deprived except the right to vote. Many
features where mentioned in the bill like it purposes to insure that all the
policies are implemented in the nations which are made for the development of
To establish a separate court for them, to grant
transgender persons 2% reservation in government jobs and no child should be
boycott from the family for being a Transgender and to impose penalty and punish
the persons who are making comments on transgender.
This bill was passed by
upper house on 24 April 2015 but it lapse in lower house. Meanwhile, in 2015 a
draft bill was uploaded by Ministry of Social Justice and Empowerment to seek
public suggestion. On 26 February 2016, the bill was introduced in the Lok Sabha
by Baijayant Panda of the Biju Janta Dal party. 2016 bill was tabled while 2014
bill was passed by Rajya Sabha and then referred to standing committee who
submitted their report in 2018 and then new version was passed by Lok Sabha. In
2019 Thawar Chand Gehlot , the Minister of social justice and Empowerment ,again
this was reintroduced in Lok Sabha and in chaos of following the revocation of
Jammu and Kashmir , this bill was passed by the house of Parliament undebated
and was signed by the president on 5 December 2019 and became an Act.
- The act seek to provide them a proper known gender at every place , so
the definition was set for them; transgender persons will be that person
whose gender will not match with the other gender at the time of birth. Intersex is a
person who at the time of birth shows variation in his or her primary sexual
- The law prohibits any type of discrimination at education Centre or at
the time of employment, recruitment and promotion, as they are also
recognized as a third gender with all rights.
- The act aim to end discrimination at educational level, no transgender
can be deprived for having valuable education and all the facilities like
sports and other facilities will be provided to them without any kind of
discrimination against transgender person.
- The act aim of protecting them from the society and from their own
family who disown them because of their gender identity. The act has set a
rule that transgender will have right to reside in their own family and
family has to take care of them and only on court order they can separate
from their family and will be sent to rehabilitation Centre.
- Through this act the government has mandated to set up health care
facilities to the transgender persons, it should include separate HIV
surveillance Centre and sex reassignment surgeries.. Proper medical
insurance schemes will be provide to them.
- The Government has been mandated to formulate a welfare measures and
programs to ensure that transgender person have full participation and
inclusion in the society and in cultural activity without being
discriminated. They should set up training Centre and self employment
schemes and those which are transgender sensitive.
- The act also recognises the right of self-perceived gender identity. They may
ask district magistrate to provide them a certificate of identity, and if they
had gone of having gender-change surgery, in that case they can have certificate
from hospital where they had the operation and can ask for change the gender in
the certificate as male or female.
National council for transgender person was
set up, this council will look and advise the central government to see that all
the policies, project and legislation which are related to transgender persons
are implemented in proper way and all the grievances of transgender persons are
After lot of struggle from 2012, finally in 2019 transgender persons (protection
of rights) Act 2019 came into existence. The day on which this act was passed
was regarded as a black day because where this topic of transgender require a
proper discussion and acknowledgment it has been passed in hurriedly and many
majors where left unconcern. A Trans person is a person whose gender identity
differ from that of others at the time of birth. It includes kothis, Aravanis,
Hijras in India.
This community faces a lot of struggle due to their gender and
that's why this transgender act came into existence. This act protects the
rights of the transgender and tries to make provisions to help transgender to
protect their rights in the society. The act of 2019 had tried to recover the
flaws of 2016 and 2018 bill. Transgender person try to earn through begging and
to earn their living they also serve people in wrong way.
In society they were
consider as a mode of entertainment. 2019 act has diminished all these
activities prevailed in the society. A standard was set that transgender person
should be treated equally at all the places where they are harassed in past.
They will be treated equally at education sector, employment sector and other
The bill stated that transgender can go reassignment surgery
and can obtain gender of their choice, they will get a certificate of showing
their identity and after that they can be consider as man and women , they will
be given all the rights to self Discern gender identity. 2019 act has also
prohibits the begging and after that it was consider as a criminal activity and
if any transgender continue to do so they will get a punishment for their act
decide in this act which is six months + fine, this strictness was shown because
people have fought for their rights and provide them many reservation in working
sector, where they can easily get job to work.
Section 2(k) of the Trans person (protection of Rights) Act
of 2019 defines transgender as a person, whose gender is different and not match
with the gender provided at the time of birth. This category include person with
intersex characteristics and socio-cultural identities. The act has made clear;
that they need not require going sex reassignment surgery. Further all the type
of discrimination by the communities on social gathering places with regard to
their gender is strictly prohibited and no one can deprive them from their
Section 4(2) was consider as important section in the act as this give
self-perceived gender identity rights to transgender persons , means they can
have personal sense of one's own gender. Further section 5, 6 and 7 have made it
mandatory for all the transgender to obtain a certificate of identity by the
District Magistrate, this will come as proof of recognition, so that it can be
identify that this person is transgender.
And if they went for sex reassignment
surgery for getting gender of their choice it can be either man or women in this
case they will get revised certificate which will show their gender as man or
woman. Six months to two years and with fine , is time period of punishment
decide for any kind of mental and physical abuse towards trans person by other
member of society was stated in section 18 of this act.
National council was set
for transgender persons under section 16, and if any difficulties came in
implementing these provision, section 23 provide power to remove difficulties
and every order made shall be laid before the house of parliament without any
In 2014, Supreme court in NALSA v/s Union of India
, had given recognition to
fundamental right of transgender person and declare that they can legally
identify as third gender. They have right to equality and right to live with
dignity under article 14 and 21 and no one can deprive them from their rights.
Consequently, Since 2014 the efforts are being made to
provide all the protection to transgender but still this Act is debatable and
have some discrepancies and anomalies which show that the Act still need some
changes and there is need to look this act with concern.
Firstly the foremost ambiguity is with regard to identity
certificate, it was declare to obtain identity certificate approved by District
magistrate but the point to be note here is that one side the act allow the
transgender to self-identify their gender and on the other side we are demanding
them to obtain a mandate confirmation from District magistrate for their
identity. They are required to stand before DM and have to take certificate for
their identity by convincing them that they are transgender.
The point is why
transgender need to go through screening for obtaining certificate identity card
for them where no other person is doing this, here the law is silent and with
this, there is also no procedure of screening.
The law is silent on whether a trans person holding them
as female and male after surgery are they allowed to have access on welfare
schemes made for trans persons. The Supreme Court has mandated the state and
union government to extend reservation but this is also not been provide to them
It was declare in this act to provide employment,
entrepreneurship, economic opportunities and education facility to transgender
but this welfare measure was not taken properly. They even don't have proper
grievance redress mechanism for harassment and discrimination, and only one
clause was mentioned which under list all the crime against transgender and over
this the punishment in case of rape of transgender is also lighter than other
persons, here in transgender case it is only two year of imprisonment and in
case of other women it can be extend to death also. This act allow transgender
to identify their gender when they are no more children, here the act is doing
injustice with children.
No doubt act has many measure for transgender but still there
are some flaws which need to be address otherwise they can be harmful for them.
The act should focus on providing transgender a way through which they can live
with dignity and can have equal rights.
S Swapna vs. state of Tamil Nadu
, 2014: This case is about the discrimination
or inequality transgender face even after obtaining gender identity
certificated. Here in this case petitioner is a person who has undergone sex
reassignment surgery and has changed his gender from male to female and when she
applied to obtain for SSLC and HSC certificate, she was denied by the director
of school examination to give her certificate with changed name and gender
identity in it.
This case went to madras High Court and then court give a
judgment in favor of petitioner and ask them to provide certificate within four
weeks of the judgment. This case has shown the difficulties through which
transgender has to go for enrollment process or to get some certificate in
Ganga kumari vs. State of Rajasthan
, 2017:- In this case Ganga kumara who was
selected for woman constable post for which she gave various qualification test,
physical test , medical test and then a random medical check was asked to give
which is going to be final selection test. In that test they found that she
belongs to third gender community and after that she was rejected from getting
job. This rejection was on the basis of her gender.
The case was filed by her in
the court showing that her rights under Article 14, 16 and 21 are being
violated. In this case court held that the discrimination was wrong and she
cannot be rejected on the basis of her gender and referred NALSA case to give
decision and stated that Ganga should be recruited again for the job. And the
difference between 'sex' and gender identity
should be understand
properly and during the time of job selection gender specification should be
limited till title gender
Our constitution states that each and every person is free to live the way they
want, no law can stop them. Transgender is the person who has been facing the
challenges from the time of birth and fighting to live as normal human being.
They are treated as untouchable even they are not untouchables. India has more
than 1 million transgender and we cannot ignore them and that's the reason this
act came into being to protect them.
Yes, this act has some loophole which needs
to be redress but we as a human being also need to change our perception towards
them and should accept them as they are also humans. So, this act need some
changes for the welfare of transgender and should provide transgender as a place
of dignified member of the society.
- AIR 2014 SC 1863