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The Transgender Persons (Protection Of Rights) Act, 2019

Historical Evolution
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[1]), 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 transgender community.

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.

  1. 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 characteristics.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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 address properly.

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 similar services.

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 rights.

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 delay.

Critical Analysis
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 till now.

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.

Judicial Response:
S Swapna vs. state of Tamil Nadu, 2014[2]: 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 various institutions.

Ganga kumari vs. State of Rajasthan, 2017:[3]- 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.

  1. AIR 2014 SC 1863
  2. W.p.10882/2014
  3. MANU/RH/1466/2017

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