The transgender community is one of the most marginalized, discriminated
against, and vulnerable communities in India and across the world. In April
2014, transgender was declared the third gender by the Supreme Court of India,
and bills regarding protecting their rights were formulated, and subsequently.
The Transgender Persons (Protection of Rights) Act, 2019 was passed. Although
this act protects transgender people against offenses and provides penalties in
case of violation of their rights, the act is still a flawed attempt at
elevating the status of transgender people in India.
For instance, the
definition of a transgender person is non -inclusive, and other facets in the
act are against the fundamental rights as enshrined in the Indian constitution.
This paper aims to assess the status of transgender people in today's society
and to bring forward the lacunae in the Transgender Persons (Protection of
Rights) Act, 2019 act, , and provide recommendations to improve the status
Description of the theme and its relevance
Transgender people have existed in India throughout history and have been one of
the most marginalized communities merely due to their gender identity. They are
often abused and ostracized by their own family members and resort to sex work
to survive, which often puts them at risk of getting HIV and aids.
The rate of
sexual and physical abuse they face is alarming. They also find difficulty
finding jobs and often resort to begging and are discriminated against in
receiving healthcare. As a result, they are often left vulnerable to low quality
of life, isolated, and riddled with transphobia, prejudice, and violence.
There is thus a need for protecting the community and providing a redressal
mechanism in case of violation of their rights. The Transgender Persons
(Protection of Rights) Act, 2019 aims to prohibit discrimination against the
community and contribute towards their welfare.
In 2014, the Supreme Court in the landmark judgement of NALSA v. Union of
, recognized the rights of transgender people in India and recommended
several measures such as reservation in educational institutions and public
employment and the Court stated that the right to express one's gender is
guarded by Article 21.
Over the years, landmark judgements such as Justice K.S.
Puttaswamy (Retd.) and anr v. Union of India and ors
6 (2017) and Navtej Singh
Johar v. Union of India
(2018)  have contributed towards the welfare of the LGBT community. In addition, the Supreme Court of India upheld the judicial
mandate from 2014. However, other bills, such as the Rights of Transgender
Persons Bill of 2014, were introduced prior to the implementation of this Act.
During the time that this Bill was being debated, the 2016 Bill was introduced.
After then, the Transgender Persons (Protection of Rights) Bill, 2018 lapsed,
and on July 19, 2019, the Minister of Social Justice and Empowerment introduced
the 2019 Act in the Lok Sabha, citing the expiry of the 2018 Bill.
Statement Of Problems:
Societal exclusion of Transgender individualsThe transgender people are often vulnerable and ostracized by their own family
members and have to resort to sex work as a means of living thus facing a lot of
stigma and isolation. They also face discrimination in receiving healthcare and
are abused and sexually exploited. The shortcomings of the Transgender
Persons (Protection Of Rights) Act, 2019 can be blatantly understood by understanding
the social conditions under which the transgender community lives.
Lacunae in the Transgender Persons (Protection Of Rights) Act, 2019
The act formulated for the welfare of the transgender persons is riddled with
provisions that are violative of the NALSA judgement and the fundamental
rights enshrined under the Indian constitution.
The definitions under the act are non-inclusive and inadequate with respect to
the definitions such as transgender persons, inclusive education which do not
fully capture the essence of the words.
- Section 3-17 of the Act
These sections impose conditions on the right of transgender individuals with
respect to their gender identity and deem it necessary to have a 'Sex
reassignment surgery' in order to get a change in gender certificate which
violates the provisions of article 21.
- The absence of certain provisions
There is also non-inclusivity of provisions such as reservation in the
educational and public employment institutions, which was stated in the NALSA
judgement, thus making the act inadequate.
- Offences and penalties
The offences and penalties including sexual offences against the Transgender
community has minimal punishment from 6 months to 2 years . In section 375 of
IPC, the minimum punishment for rape is 7 years and thus, such a provision of
the act violates the Right to Equality and deems the same crimes against
transgender community to be less grave in nature, even though they are very
vulnerable to sexual abuse.
Non inclusivity of Transgender persons during the formulation of the Act The passing of the 2019 act in question was met with criticism by the
transgender persons and activists as they deemed the act to be regressive and an
insignificant step towards the welfare of the third gender individuals. One of
the major reasons towards this inadequacy was the lack of consultancy of the
transgender people in making the law.
This research paper tries to explore the above three topics in order to
understand the problems with the Transgender Persons (Protection Of Rights)
Act, 2019 and provide recommendations for betterment of the transgender community.
The present literature review is based on bare acts, journal articles deemed to
be relevant by the researcher for the purpose of identifying the shortcomings
and lacunae in the Transgender Persons (Protection Of Rights) Act, 2019
respect to the research problems and objectives mentioned.
Conclusion And Recommendations
Societal exclusion of Transgender individualsAccording to the author of Socio–Cultural Exclusion and Inclusion of
Trans-genders in India, even in the 21st century, there seems to be limited
understanding among the masses regarding the gender identity and sex assigned at
birth. According to the 2011 Census, India has 4.88 lakh transgender people and
over 55,000 children under the age of six who are transgender
Owing to such
low population of the transgender individuals, they face severe discrimination, marginalisation and abuse, often at the hands of their own family members and
this has led to low income and educational levels becoming a fundamental part of
the transgender community. This living condition often forces them into
prostitution and they are at a much greater threat of getting HIV and AIDS or
resorting to begging.
Transgender individuals face unique barriers while trying to access health care
services and are deliberately misgendered as 'males' and admitted in male wards
(in case of trans women). They face humiliation and are also denied medical
services. Such discrimination could be on the grounds of transgender as well as
sex work status.
Thus, in order to safeguard the Transgender individuals, a provision that would
be inclusive not only of transgender rights, but those of sex workers, as the
both are closely related. The rights given to transgender individuals should be
enforceable and since they are vulnerable to sexual violence, stringent laws
against the same should be formulated.
Lacunae in the Transgender Persons (Protection Of Rights) Act, 2019Analyzing the shortcomings of the act after understanding some vital needs of
the transgender communities using relevant literature is the aim of this section
The author of The absence of certain provisions. Legislative Review of "The
Transgender Persons (Protection of Rights) Act 2019 has exhaustively analyzed
the provisions of the act and brought forward the issues within the act.
- Section 2k of the act defines a transgender person but is a non –
inclusive definition as it includes only 4 communities namely: Kinner, Hijra,
Aravani and Jogta. However, it does not include gender non-conforming
individuals and people from other communities such as Nupa Maanba from Manipur,
Thirunangais from Tamil Nadu anong others. Thus, rather than Transgender being
an umbrella term, it has a restrictive definition.
The term also includes people
of intersex variation which in itself is a different concept. Thus, it seems
that the act is conflating sex and gender, and in the process is diminishing the
capacity to understand the needs of the transgender community by intertwining
the concept of sex and gender.
- Author is also of the opinion that the term "inclusive education" as
under section 2 is incomplete as it does not address the issue of
sensitization of all students towards gender non -conforming individuals.
Sections 3-17Section 4 of the act is a progressive step as it recognizes the r right to a
self – perceived identify themselves of all transgender individuals. However,
this section is watered down by the subsequent sections, from section 4 (2)
through to section 7, which apply conditions on this recognition either through
the act or by the requirement of ' Sex Reassignment Surgery' in order to receive
a revised certificate of the gender, thus enforcing the need for surgery in
order to accept someone's gender identity and posing conditions on the
self-expression of gender as ruled in the NALSA judgement.
process is constitutionally flawed as it goes against the principles enshrined
under article 21 of the Indian constitution of freedom of expressing gender
identity. In NALSA, judgement, the Supreme Court rejected pathological or
medical or pathological standard to determine an individual's gender, and
recognized that "transgender" constituted a standalone gender for individuals.
Thus, this provision goes against the judgement.
Section 15 describes the healthcare services that the competent government must
provide for transgender people. Separate centers for the transgender community,
under clause (a) however, will further stigmatize and isolate the community.
According to the author, this provision ironically does not prevent
discrimination, but rather codifies it.
- The absence of certain provisions
The Central and State Governments were ordered in the National Legal Services
Authority v. Union of India 2014 case to offer transgender community
reservations in educational institutions and public employment and regard them
as socially and economically backward classes.
However, there is no mention of the reservation in the act.
- Offences and penalties are inadequate
Punishment for sexual abuse against transgender not adequate.
Under section 375 of IPC, the minimum punishment for rape is 7 years. However,
in this act, only 6 months minimum and maximum for 2 years with fine is the
punishment for all crimes, including sexual offences.
This violates article 14
of the constitution even though transgender community is very vulnerable to such
crimes. There is thus discrimination in even giving justice to the Transgender
community and many rights mentioned in the act have no legal remedies and thus
can be said to be rights that are not enforceable.
Non-Inclusivity Of Transgender Persons In The Formation Of The Act
The passing of the Transgender Persons (Protection of Rights) Act, 2019 was met
with a lot of criticism by the members of the Parliament as well as members of
the LGBT+ community and transgender activists who considered the bill to be an
The reason for this failure could be attributed to the lack of proper
consultation of the transgender community and other activists before the
formulation of the act.
The bill goes against the right to dignity and bodily autonomy of trans people,
'-says Semmalar , a member of Sampoorna Working Group, one organisation fighting
for intersex and transgender rights.
Ajita Banerjie, another such Delhi-based individual who researches in gender and
sexuality said 'You're basically putting a lot of burden on trans people and
adding a lot of bureaucratic layers and red-tapeism.
He also said that the provisions fail to address issues such as adoption and
Thus, it is clear that the act received a lot of criticism and its lack of
consultation of the marginalised community deemed the law to be a rather flawed
attempt, which still stands considers the gender binary to be the norm and
transgender individuals to be an exception.
- Societal exclusion of Transgender individuals
- The first topic for literature review which deals with the society and the
status of transgender individuals within it, informs us that the transgender
individuals are vulnerable and are often targeted by their own families and
have to live in isolation. Owing to such societal conditions, they are often
left poor and have to resort to prostitution. They also face prejudice in
the form of deliberate misgendering and refusal of treatment at the hands of healthcare
- Based on the doctrinal research, the researcher believes that in order
for the societal conditions to better, there needs to be compulsory gender
sensitization so that the misunderstanding and lack of awareness which gives
rise to prejudice and transphobia among the masses can be overcome.
Simultaneously, the prejudice against sex workers needs to be tackled. Providing
laws that aim for the welfare of sex workers and transgender individuals and the
entirety of the LGBT community such as the Navtej Singh Johar judgement
which decimalized homosexuality will help the transgender individuals gain legal
rights and be accepted within the society.
- Lacunae in the Transgender Persons (Protection Of Rights) Act, 2019
The Transgender Persons (Protection of Rights) Act 2019 is a flawed attempt at
prohibiting discrimination against the transgender individuals. As the author of
points out several facets of problems which goes against the NALSA judgement and
the principles of equality and privacy as under the fundamental rights of the
The author points out several amendments to the act that
would enhance its significance and efficiency including reservation for the
third gender as given as a guideline in the NALSA judgement. As mentioned by the
author, the researcher also believes that increasing the scope of the term transgenders and including other provisions of adoption, same -sex marriage
and defining the terms such as abuse and increasing the penalties of crimes ,
especially that of rape to the same as in section 375 as the current provisions
are against the Right to Equality as under article 14 of the Indian
Non-Inclusion Of Transgender Persons In The Formation Of The Act
Finally, the researcher believes that the non -inclusivity of the transgender
community in formulating the 2018 Bill is one of the major reasons why the act
thus formulated is deeply flawed and built upon the norms of heterosexuality
even though it is made for the welfare of the transgender community. For an act
to help elevate the status of the third gender individuals, consulting them
during formulation is of utmost importance as it would help understand their
experiences and help formulate an act more fit for the welfare of the
- To briefly summarise, the author of this research attempts to analyse
the Lacunae in the Transgender Persons (Protection Of Rights) Act, 2019 by
firstly examining literature on the conditions of transgender individuals in the
country and subsequently attempts to understand how these shortcomings were
received by the transgender individuals who protested against the act and lastly
attempts to recommend some changes in order to help transform the status quo
into something more progressive.
- To determine the societal conditions with respect to the status of the
transgender community in the backdrop of which the act was passed.
- To critically examine the Transgender persons (Protection of Rights) Act
,2019 and bring forward its limitations.
- To examine why the Transgender persons (Protection of Rights) Act, 2019
was met with criticism and protest with respect to non -inclusivity of
transgender individuals in its formulation.
- To provide recommendations in the status quo so as to elevate the status
of the Transgender community with respect to their rights in Transgender
persons (Protection of Rights) Act, 2019 and through adequate legislation.
- What is the status of transgender people in the country in the
background of the Transgender persons (Protection of Rights) Act, 2019?
- Is the Transgender persons (Protection of Rights) Act ,2019 in line with
the National Legal Services Authority (NALSA) vs. Union of India judgement?
- Are the provisions of the Transgender persons (Protection of Rights) Act
,2019 adequate and effective with respect to preventing discrimination
against the Transgender community?
- Why was the passing of Transgender persons (Protection of Rights) Act,
2019 met with protest and criticism?
- What loopholes or inadequacies persist within the act and how can they
- H1: Several shortcomings and lacunae in the Transgender Persons (Protection of
Rights) Act, 2019, deem the act as perils for exercising of equal rights by the
- H2: Consulting transgender community to form a legislation would lead to a
better and more inclusive legislation.
- H3: Granting rights to sex workers is also necessary in order to ensure welfare
of the transgender community.
- The study was conducted using Doctrinal research as well as empirical
research and the fromer involved the study of relevant information from both
Primary and Secondary sources including bare acts , journal articles , reports
available on Manupatra, Shodhganga , Google Scholar which are accessible by
the way of Online Research.
The preliminary research was extended by landmark judgements which gave insight into the recognition of the rights of the
transgender individuals, providing a source by which the provisions of the act
can be compared to, to understand whether it is in sync with the fundamental
rights or not. The later was based on the observation of interviews of the
people belonging to the transgender community in which they explain their
viewpoint regarding the 2019 act.
- Source of Data: Primary Source (bare acts) and Secondary sources
(journal articles, observing interviews)
- Method of Citation: The Uniform System of Citation (Bluebook) 19th
- Time and Place of Data Collections: Online (December 2021).
- The Transgender Persons (Protection of Rights) Act, 2019
- AIR 2014 SC 1863
- AIR 2017 SC 4161
- AIR 2018 SC 4321
- Supra 1
- Socio–Cultural Exclusion and Inclusion of Trans-genders in India Konduru
Delliswararao1* and Chongneikim Hangsing(2018) Int. J. Soc. Sc. Manage. Vol. 5,
- Challenges for Transgenderinclusive Sanitation in India
- Legislativ Legislative Review of "The Transgender r Persons (Protection of
otection of Rights) Act, 2019" Aastha Khanna Divesh Sawhney
- India Just Passed A Trans Rights Bill. Why Are Trans Activists
Protesting It? Sushmita Pathak
December 4, 201911:42 AM
- Supra 3
- A Critical and Comparative Analysis of Constitutional Recognition and
Protection of Human Rights of
Transgender People in India, Bachchhav, Sunita Tryamakrao, Savitribai Phule Pune
- Sunita Tryamakrao