A trans sans Identity?
People will sometimes put each other in boxes and have biases toward one another
because of what they look like or where they come from or who they are." -
|15 April 2014
|In the year 2013, the government of India
made an Expert Committee to understand the difficulties faced by
transgenders and suggest appropriate measures.
Judgement delivered by the supreme court of India in National service
authority v union of India recognizing the rights of transgender
people by laying down series of measures which are as follows:
- It recognised the rights of transgender individuals in India and
specified a set of steps to protect them from discrimination,
including the implementation of welfare policies and transgender
reservations in educational institutions and businesses.
- The Indian Constitution's protection of a transgender person's
freedom to self-perceived gender identification as male, female, or
third gender was affirmed in the judgement.
- The court directed that governments treat transgender people as
socially and educationally behind. As a result, the court suggested
that transgender people be given preference in educational
institutions and for public appointments, as provided for in Article
16 of the Indian Constitution. Social welfare initiatives were to be
developed in order to improve their situation and raise public
|2014(After the judgement)
|Tiruchi Siva, a member of the Dravida
Munnetra Kazhagam (DMK) party, introduced The Rights of Transgender
Persons, 2014, as a private member's bill in the Rajya Sabha. The bill
was passed by the Rajya Sabha in April 2015, but it failed to gain a
majority in the Lok Sabha. This bill was untimely lapsed since it was
pending till the dissolution of the Lok Sabha.
|In the Lok Sabha, the Centre introduced the
Transgender Persons (Protection of Rights) Bill, 2016. It was stated
that physiological professionals would be in charge of assessing a
person's identity based on medical and psychological characteristics.
- The Bill was faced with opposition and protests from Indian
transgender people, and it was referred to a standing committee,
which issued its report in July 2018.
- On the 17th of December 2018, the Lok Sabha passed a revised
version of the bill with 27 amendments
- In December 2018 another bill, the Transgender Persons
Protection of Rights Bill was initiated. The lack of inclusion of
the Standing Committee's input drew criticism. Both the 2014 and
2018 legislation lapsed as a result of the dissolution of the Lok
- The bill was reintroduced in the Lok Sabha in 2019 and passed by
the monsoon Parliament on August 5th.
- On November 26, 2016, the Rajya Sabha passed the Transgender
Person (Protection of Rights) Bill,2019 by voice vote, with no
modifications. The bill was introduced in both chambers by
Thaawarchand Gehlot, the minister of social justice.
- President's assent was given in December 2019. Thus, it was in
January 2020 that the 2019 Act came into force.
Objective Of The Law
The Transgender Persons (Protection of Rights) Act of 2019 seeks to improve the
lives of those who identify as transgender. In India, members of the community
have encountered hostility as a result of their ethnicity. As a result, the Act
was written to ban discrimination against transgender people and to defend their
The poem Dance by Eunuchs
was written by Kamala Das to highlight the
community's plight. It illustrates how society views transgender people with
revulsion and abjection. It is an important depiction of the condition of
transgender people in India. They are regarded as taboo. This necessitates the
Act's existence. People's sexual identities are enshrined in the Constitution's
Right to Life.
Furthermore, the country must adhere to its international obligations.
International Human Rights law is founded on the International Covenant on
Economic, Social, and Cultural Rights (ICESCR) and the International Covenant on
Civil and Political Rights (ICCPR). The Universal Declaration of Human Rights
served as the foundation for several treaties (UDHR). Every human being has an
inherent right to life, which must be protected by law, according to Article 6
of the UDHR and Article 16 of the ICCPR, 1966. India has signed and ratified
Summary Of The Law
The definition of a transgender person is defined in the Act. It states, "one
whose gender does not match the gender assigned at birth". Transwomen,
transmen, people with intersex variants, genderqueers, and people with
socio-cultural identities like kinnar and hijra are all included.
The Act forbids discrimination against transgender people in educational
institutions, employment, and other settings on the basis of cessation, denial,
or unjust treatment. Every institution must select a Complaint Officer to handle
complaints about violations of these requirements.
Transgenders have the right to reside and be included in their households. If
not, a competent court may order the offender to be placed in a rehabilitation
The government is ought to take steps to provide adequate healthcare
facilities to transgender persons. Separate HIV surveillance centres and
sex-reassignment operations are required. Transgender people need comprehensive
medical insurance plans that handle their health challenges and examine their
medical curriculum on a regular basis.
In order to get a certificate of identity, a transgender has to make an
application to the District Magistrate. The certificate will be issued by the
D.M. without the requirement of any physical or medical examination. This
certificate will act as a proof of the person's identity and will be recorded in
The Act also directs the Central Government to set up a National Council for
Transgender Persons (NCT). This would be an advisory body with the Minister
of Social Justice and Empowerment as its chairperson.
The offences identified under the Act are:
- Bonded or forced labour (However, this does not include the compulsory
government services for public purposes)
- Denial to use public places
- Removal from their house and/or village
- Sexual, physical, emotional, verbal, or economic abuse
Penalties under the Act might range from two years to six months. It's possible
that a fine will be imposed.
The ruling of the Supreme Court in National Legal Authority vs Union of India
is considered a landmark for the transgender community. It made many
recommendations for the transgender community's advancement to both the federal
and state governments. It was the first case in which transgender people were
granted the right to self-identification.
In the case of Arun Kumar vs. IG of Registration, Chennai, and Ors
Madras High Court ruled that under Section 5 of the Hindu Marriage Act, 1955, a
marriage between a transwoman and a male who are both Hindus is legal.
Furthermore, the marriage must be registered with the Registrar of Marriages.
Supreme Court affirmed in the case of Navtej Singh Johar v. Union of India
that, a transgender must not be denied the very fundamental human rights. The
right to life and liberty, the right to empowerment and education, and the right
to violation and exploitation are among these rights. Although the Constitution
guarantees these rights, it fails to recognise them in a way that allows
transgender people to live a dignified life.
In the case of Justice K.S. Puttaswamy Vs. Union Of India
, the right to
privacy, according to the court, is an expression of individual dignity,
identity, and autonomy drawn principally from Article 21. Right to Life includes
the right to sexual identity.
The term transgender
is thought to have been defined in a limited manner.
People who do not follow the norm are said to have a lack of comprehension of
the complexity. The terms intersex and transgender are used interchangeably.
Intersex has been included in the transgender category. This is problematic
since an intersex person may or may not identify as a transgender person.
Standing Committee suggested in its report that the Act be as inclusive of intersex
people as it is of transgender people. They suggested changing the Act's name to
something more inclusive, such as Transgender and Intersex
Persons (Protection of Rights)
The Act is progressive merely in name. It is considered to have allowed
transgender people to self-identify. In actuality, it has mandated that
transgender individuals acquire a proof of identity from the District
Magistrate. This goes against the self-identification principle. Furthermore,
there is no provision in the Act for recourse. The public will have no recourse
if the D.M. refuses to provide the certificate.
The certificate will be issued
by the District Magistrate "after following such procedure and in such form and
manner, within such time, as may be prescribed specifying the gender," according
to the Act. However, there is no definition of "process" in the Act.
Furthermore, the Act says that if a transgender person has sex-change surgery,
they must apply for a "updated certificate" from the D.M. To get the amended
certificate, a certificate attesting to the surgery from the Medical
Superintendent or Chief Medical Officer of the institution where the surgery
took place is required. Only after the DM is satisfied with the appropriateness
of the certificate granted by the Chief Medical Officer does the DM issue
the updated certificate. As a result, a closer examination reveals that the Act
does provide a "implied and indirect" screening method for transgender people
seeking a certificate.
The Supreme Court's directives in the National Legal Services Authority vs.
Union of India case was anticipated to culminate in the 2019 Act. The
Supreme Court has ordered those states treat transgender people as "socially and
educationally backward classes" and grant them all kinds of accommodations.
Scholarships, fee exemptions, and free facilities, among other things, were
recommended by the Expert Committee. The Act, on the other hand, just
includes the term "inclusive education system" and does not go into detail
on the resources available.
According to the Act, no matter how serious a transgender offence is, the
perpetrator can only be sentenced to two years in prison. The punishment for
reprehensible conduct, such as sexual abuse or risking the life of a transgender
person, can be up to two years in prison. The existing sections of the IPC were
supposed to be used to criminalize these offences. The Act, on the other hand,
is a watered-down version of the IPC. Rape has a minimum sentence of seven years
in jail under the Indian Penal Code. As a result, it is a violation of a trans
person's right to bodily integrity.
It is conceivable that the Act may have been much greater than it is now. It
could have worked out better with so much thought and effort put into the
writing of the different bills for this Act. The Act isn't optimal because of
the government's and other authorities' hurried choices. Many of the transgender
community's questions have gone unanswered. Amends can be made by taking into
account the proposals provided by those who are directly affected by the Act's
The curtailed Transgender Persons (Protection of Rights) Act of 2019 infringes
the NALSA judgement by ignoring the transgender community's essential rights,
bodily autonomy, and dignity. It undermines people's right to gender
self-determination by subjecting them to psychological, medical, and public
On the other hand, the Supreme Court's decision to strike down Section 377 is
positive evidence of the state's commitment to acknowledging varied partnerships
and families. The Act must offer fair social, economic, and civil rights, as
well as protection from abuse and discrimination, in order to protect the
community's interests. Before the guidelines are formalized, the transgender
community must be consulted.
The public consultation process has to be extended to include more people and
give ample time for the regulations to be reviewed. The administration should
consider extending the consultation time until people are ready to mobilize and
appropriately express their concerns in a secure manner. It is vital to provide
the transgender people with equal constitutional rights in order to empower
them, reduce societal stigma, and improve their socioeconomic situation.
"While there is no shame in being gay, lesbian, bisexual, transgender or intersex or even straight � there is a most certainly shame and dishonour in
being a homophobe, a transphobe and a bigot." -
- Transgender Persons (Protection of Rights) Act, 2019
- (2014) 5 SCC 438
- Section 2(k) of the Act
- Section 3 of the Act
- Section 12 of the Act
- Section 15 of the Act
- Chapter VI, Section 4-7 of the Act
- Sections 16 & 17
- Section 18
- Supra 1
- 2019 SCC OnLine Mad 8779
- (2018) 10 SCC 1
- (2017) 10 SCC 1
- Section 6(1) of the Act
- Section 7 of the Act
- Supra 1
- Ministry of Social Justice and Welfare," Transgender Persons (Protection
of Rights) Bill, 2016", available at accessed 16 November 2020
- Section 2(d)