Transgender Persons (Protection of Rights) Act, 2019
The research paper throws light on the issue pertaining to Transgender
Persons (Protection of Rights) Act, 2019 and deals with the legal Perspective of
its flexibility in India. The Transgender Persons (Protection of Rights) Act,
2019 has an objective that is discussed later on, in this research paper.
Every human being is entitled to basic rights like education, employment,
healthcare, and most importantly, self-identification. However, the transgender
community in India is been denied these rights with the passage of the
Transgender Persons' (Protection of Rights) Bill 2019 on November 25. Authors
have tried to discover a pragmatic approach to the Transgender Persons
(Protection of Rights) Act, 2019. The study is based on secondary sourced data
which includes books, magazines, journals and articles. These have been explored
for the study.
The word Transgender is associated with the third gender, i.e. other than male
or female. People who do not conform to their birth sex, i.e. to say they do not
match that their gender expressions and their expressions don't match with their
There are many different kinds of transgenders in India from times immemorial.
Hijras are not men by virtue of physical appearance and psychologically. They
are also not women, though they are like women with no female reproductive organ
and do not go through menstruation.
Eunuch refers to an emasculated male and the inter-sex of a person whose
genitals are ambiguously male-like at birth. Aravanis are biological males who
self-identify themselves as a woman trapped in a male's body. Kothis can be
described as biological males who show varying degrees of femininity which may
be situational. Jogti Hijras is used to denote those males who are turn into
female and are devotees and servants of goddess Renuka devi.
Criminalization under the Colonial RuleSince the time immemorial, Hijra communities were considered a separate caste by
the colonial administration. The Criminal tribes Act, 1871 included all Hijra
who were associated with any crime such as kidnapping and castrating children
and dressed like women to dance in public places. The punishment awarded was two
years or more or fine or both.
Criminalization and Marginalization during Post-Independence EraHowever the Act was repealed in 1952 and its legacy continues and many local
laws still reflect the prejudicial attitudes against certain tribes, including
against Hijras. Recently, the Karnataka Police Act was amended in 2012 to
“provide for registration and surveillance of Hijras who indulged in kidnapping
of children, unnatural offenses and offenses of this nature” (Section 36A), in a
similar vein to the Criminal Tribes Act,1871, According to Section 36A,
Karnataka Police Act, 1964, Power to regulate eunuchs.
Preparation and preservation of a register of the names and places of residence
of all eunuchs residing in the area under his charge and who are reasonably
suspected of kidnapping or emasculating boys or of committing unnatural offenses
or any other offenses or abetting the commission of such offenses.
Piling objections by aggrieved eunuchs to the inclusion of his name in the
register and for removal of his name from the register of reasons to be recorded
In the colonial period, the British removed the section 377 of the IPC,1861.
Constitutional PerspectiveAs we have seen and observed, transgender has been through various
discrimination in school, colleges, and the employment sector. This gender calls
themselves with the pronoun IT' and not he or she. No methods for eradication
against the atrocities of the transgender community either the judicial or the
legislative body of the country have been made. But basic provisions such as
Article 14 where the state cannot deny to any person before the law.
There should be equal treatment of all genders. Further Article 15 and 16
guarantees no discrimination on the basis of caste genders' race and religion.
These articles prohibit all types of gender-related discrimination. Article
19(1)(a) of the constitution provides the right to speech and expression. Even
after having constitutional rights, transgender face difficulties in the work
environment. That is not provided with jobs and even if they hold jobs, they are
teased and mentally harassed.
Timeline: How The Transgender Community Was Recognised
In 2009, the Delhi High Court decision in Naz Foundation v. Govt. of NCT of
Delhi found Section 377 and other legal prohibitions against private, adult,
consensual, and non-commercial same-sex was in the violation of fundamental
rights provided by the Indian Constitution.
On 23 February 2012, the Ministry of Home Affairs raised its opposition to the
decriminalization of homosexual activity homosexuality is seen as being immoral.
The Central Government reversed its stance on 28 February 2012, asserting that
there was no legal error in decriminalizing homosexual activity.
On 28 January 2014, the Supreme Court of India dismissed the review petition
filed by the Central Government, the Naz Foundation and several others against
its 11 December verdict on Section 377.
On 18 December 2015, Shashi Tharoor, a member of the Indian National Congress
party, introduced a bill for the repeal of Section 377, but it was rejected in
the House by a vote of 71-24. On 2 February 2016, the Supreme Court decided to
change the criminalization of homosexual activity.
In August 2017, the Supreme Court unanimously ruled that the right to individual
privacy is an intrinsic and fundamental right under the Indian Constitution. The
Court also ruled that a person's sexual orientation is a privacy issue, giving
hopes to LGBT activists that the Court would soon strike down Section 377.
In January 2018, the Supreme Court agreed to refer the question of Section 377's
validity to a large bench and heard several petitions on 1 May 2018. In response
to the court's request for its position on the petitions, the Government
announced that it would not oppose the petitions, and would leave the case "to
the wisdom of the court". A hearing began on 10 July 2018, with a verdict
expected before October 2018. Activists view the case as the most significant
and "greatest breakthrough for gay rights since the country's independence".
On 6 September 2018, the Supreme Court issued its verdict. The Court unanimously
ruled that Section 377 is unconstitutional as it infringed on the fundamental
rights of autonomy, intimacy, and identity, thus legalizing homosexuality in
India. The Court explicitly overturned its 2013 judgment.
Introduction Of Various Bills For The Rights Of Transgenders
The Rights of Transgender Persons Bill, 2014 - This bill was formed to end the
discrimination faced by transgender people in India. It was passed by the Rajya
Sabha on 24th April 2015. It includes 10 chapters including rights and
entitlement, social security and health.
The rights of transgender persons bill, 2014 was again drafted in 2016. The Lok
Sabha has passed the Transgender Persons (Protection of Rights) Bill, 2016,
which seeks to empower the transgender community in the country.
It is important to adopt an objective criterion to determine one's gender in
order to become eligible for entitlements.
The Transgender Persons (Protection of Rights) Bill, 2016, after the 2014 bill
was passed by the parliament. Some transgender activists have opposed the bill
because it does not address issues such as marriage, adoption, and divorce for
transgender people. The bill passed the Lok Sabha on 17 December 2018 with 27
amendments, including a controversial clause prohibiting transgender people from
Highlights of the bill:
The Bill defines a transgender person as one who is partly female or male; or a
combination of female and male; or neither female nor male. In addition, the
person's gender must not match the gender assigned at birth and includes
trans-men, trans-women, persons with intersex variations and gender-queers.
A transgender person must obtain a certificate of identity as proof of
recognition of identity as a transgender person and invoke rights under the
Such a certificate would be by the District Magistrate on the recommendation of
a Screening Committee. The committee would comprise a medical officer, a
psychologist or psychiatrist, a district welfare officer, a government official,
and a transgender person.
The Bill prohibits discrimination against a transgender person in areas such as
education, employment, and healthcare. It directs the central and state
governments to provide welfare schemes in these areas.
Offenses such as compelling a transgender person to beg, denial of access to a
public place, physical and sexual abuse, etc. would attract up to 2 years'
imprisonment and a fine.
Transgender Persons (Protection of Rights) Bill, 2018 - The Bill was passed by
the Lok Sabha (Lower House of Indian Parliament) on 17 December 2018. The next
step in order for the Bill to progress is for the Rajya Sabha (Upper House of
Indian Parliament) to pass it.
The 2018 Bill, if adopted, would effectively deny to most transgender people
their right to self-identification, by providing an overly complex bureaucratic
procedure requiring an individual's application for a transgender certificate to
be approved by two different sets of authorities, despite earlier widespread
condemnation of this process by the transgender community.
“As the ICJ reported in 2017, the transgender community is continually harassed,
stigmatized, and abused by the police, judges, their family, and society. This
bill, if it becomes law would further serve to facilitate and compound human
rights violations against people from a marginalized community”, said Ian
Seiderman, Legal and Policy Director at the ICJ.
The Bill has also introduced mandatory sex reassignment surgery for those
transgender people who seek to identify their gender within the binary
(male/female) framework. This requirement would be in contravention of the
Supreme Court's judgment in NALSA v. UOI, which guarantees the right to
self-identification without the need for medical intervention.
Further, the Bill would collapse all offenses against transgender people into
one provision which includes offenses ranging from “sexual abuse” and “physical
abuse”, to “compelling or enticing a transgender person to indulge in the
act of begging” among others. These crimes have not been defined in the
It also would provide for the same six-month to two-year sentence for all
offenses against transgender people. In some cases, this could be a
significantly lighter sentence than when the same crime is committed against
others, including discriminated groups such as cis-gendered women, under the
general criminal law. In addition, the identification of “beggary” as an offense
under the Bill is problematic since for many transgender people in the country,
it remains one of the limited livelihood opportunities.
Further, the Bill does not address the question of reservations in employment
and education despite specific directions by the Supreme Court in NALSA v.
Lastly, while the proposed law guarantees the right to non-discrimination to
transgender people against persons, state and private sector bodies, it does not
provide a definition of discrimination, nor does it provide an enforcement
mechanism for ensuring transgender people's right to non-discrimination.
Transgender Community And Higher Educational Institutions
On 29th October 2014, the University Grant Commission (UGC) issued a circular to
all the Vice-Chancellors of the Universities requesting them to include a column
for Transgender Community in all application forms. The circular also includes
the directions related to the affirmative's actions taken by the Universities to
ensure that the Transgender students get acclimatized without facing
humiliation, fear, and the new issues and their solutions. In Delhi University
we have seen many trans professors who are educated and earning well. They
prefer to call them their names and instead of he or she addresses them as IT.
Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors.- Justice
K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors. is a landmark
judgment of the Supreme Court of India, which holds that the right to privacy is
protected as a fundamental constitutional right under Articles 14, 19 and 21 of
the Constitution of India. The nine-judge bench unanimously held that “the right
to privacy is protected as an intrinsic part of the right to life and personal
liberty under Article 21 and as a part of the freedoms guaranteed by Part III of
National Legal Services Authority v Union of India - The judgment of the Supreme
Court of India delivered in the case of National Legal Services Authority v.
Union of India on 15th April 2014 by a Division Bench comprising Justices K.
S. Radhakrishnan and Dr. A. K. Sikri is a historic decision that will be a
milestone in the area of gender justice in the country and will have a long term
impact in the coming times. Though it was the duty of the Parliament to make a
law on the third gender and provide the necessary legal recognition, it is
actually carried out by the Supreme Court in this judgment.
It is well-known that the Constitution of India, supreme law of the land,
provides fundamental rights to the people of the country irrespective of their
caste, class, and race, color or gender in Part III against the State which is
defined under Article 12 of the Constitution. In essence, the Constitution is
sex blind'. It does not allow lawmakers to discriminate on the basis of sex.
Like the other people that are the ordinary male and female, transgenders are
also entitled to get the protection of fundamental rights such as equality
before the law, and other rights as they constitute the core of people of
It is submitted that by recognizing the transgender community as a third gender
entitled to the same rights and constitutional protections as all other citizens
i.e. male and female, the Supreme Court of India has put in place a sound basis
to end discrimination based on gender, especially gender as presumed to be
assigned to individuals at birth. Further, beyond prohibiting discrimination and
harassment, the Court has extended global principles of dignity, freedom, and
autonomy to this unfairly marginalized and vulnerable community and has met the
norms of the Universal Declaration of Human Rights.
The judgment lays down a comprehensive framework that takes into its fold not
merely the negative right against discrimination, but also “the positive right
to make decisions about their lives, to express themselves and to choose which
activities to take part in.”
It is not their birth duty to earn by begging or singing and dancing on
roads. They are equally entitled to be part of the public services and other
jobs. In particular, the direction of the court that they should be treated as
socially and educationally backward' and given reservation in education and
employment, is a far-reaching contribution to their all-round development.
Navtej Johar v Union of India:The recent landmark decision of the Supreme Court in Navtej Singh Johar
v. Union of India, where a bench of five judges of the Supreme Court
partially struck down Section 377 of the Indian Penal Code (IPC), which made
“carnal intercourse against the order of nature” a criminal offense.
Section 377 of the IPC bears the heading “unnatural offenses” and it penalizes
carnal intercourse which is against the order of “nature”. Relying on
scholars like Zaid Al Baset and Shamnad Basheer, Justice Chandrachud wrote that
there are shortcomings in the conceptual categories of “natural” and
“unnatural”, that the idea of the “natural” was manufactured by a majoritarian
suppression of the history of the prevalence of sexual minorities, that merely
because something is natural does not mean that it is desirable (e.g., death),
and just because something is unnatural (e.g., a heart transplant) doesn't mean
that it ought to be criminal.
In Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1, the Supreme
Court had previously upheld Section 377 of the IPC because only “a minuscule
fraction of the country's population”, according to the court, belonged to the
LGBTQI community. This argument was rejected by the court in Johar. The number
of people asserting a fundamental right, said Chief Justice Misra, is “meaningless;
like zero on the left side of any number.”
Transgenders are people whose personal identity and gender don't correspond with
their birth sex. They identify themselves as trapped in a different body, they
belong to a different gender. For instance, a male doesn't identify himself as a
male which is his birth sex but identifies himself as a female and his not
comfortable with their own body.
There are no particular definitions as to why some people are transgender some
belief it is due to biological factors and others believe due to experiences in
childhood or adulthood may all contribute to it. In the year 2018, the World
Health Organization (WHO) declared that being transgender is not a mental
We confuse ourselves between gays, lesbians, and transgender, the difference
lies in sexual orientation and gender identification. Gays and lesbians are
people attracted to the same sex. Whereas the transgenders are not sure about
their identity. They are people who live as a member of a gender other than the
expected based on sex or gender assigned at birth.
In developing countries like India, the scenario of accepting transgender as
another gender has changed. Transgenders are getting employments, work, money,
and foremost acceptance by the people but there is still a lot to change.
Nonetheless, many transgenders face problems in tolerance and acceptance majorly
from their families. Families are not ready to accept them because of which they
have to leave their homes and live in a different society. Families are
concerned “log kya kahenge?” what will people say.
Due to this pressure families boycott their child. It is not only prevalent in
rural areas but also in urban areas. In India transgender are considered taboo.
Many companies, firms, etc are not ready to employ them because of their gender
as a reason they are financially unstable and moreover the government levy heavy
taxes on them which are difficult for them to pay.
Transphobic violence (violence against transgenders) is one of the major issues
due to which transgender are not able to get their status. We hear and read in
newspapers daily about the discrimination they face, how they are treated.
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