Critical Analysis of Transgender Persons (Protection of Rights) Act, 2019
Written by Mugdha Dhar
Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.
Being a transgender and to exist in a society such as India has never been easy. Every human being on this planet is entitled to basic rights such as the right to live, education, healthcare, employment but the transgenders have to fight for these basic rights since their birth. A Transgender is a person whose sense of personal identity and gender does not correspond with their birth sex.
Transgenders are one of the more marginalized sections of society who have suffered much discrimination in their life. For them, life has never been easy. Our society, as advanced as it claims to be, fails to acknowledge different gender identities and expressions. There is an unwillingness to accept change and something that’s different and the problem of these people starts from here. Society is not ready to accept them. The foremost thing the transgender people wants from society is respect and honour, values upon which basic human rights are based on. Every human being deserves that.
To help transgender people overcome various discrimination government passed the Transgender Persons (Protection of Rights) Bill, 2019 on 26th November 2019. The Bill has subsequently become an Act with the President’s assent on 5th December 2019. However, the Act has failed to meet the expectations of the trans people.
This article talks about the issues faced by the transgender community and the criticisms associated with the Transgender Persons (Protection of Rights) Act, 2019 and the government’s initiative to protect the rights and curb the problem of the transgender community.
Background of the Transgender Bill
2014 : The Supreme Court of India gave a judgement in the case of NALSA Vs UOI and recognised the rights of transgender people in India and laid a series of measures against discrimination, recommended creation of welfare policies, reservation in educational institutes and jobs etc. The Judgement upheld the rights of a transgender person to their self-perceived identity and held that these are guaranteed by the Constitution of India. The judgement also made reference to hijra, kinnars, and jogtas of the trans community.
After the judgement, Tiruchi Siva, a member of the DMK party introduced a private member’s Bill in the Rajya Sabha in this context. The bill was known as the Rights of Transgender Persons Bill, 2014 (Bill No. 49 of 2014). This bill was passed in Rajya sabha. It was also welcomed by the queer right activists in india.
2016 : The 2014 Bill underwent some major changes when the government drafted its own version of the Bill. It was strongly opposed by many activists and transgender as it violated the NALSA Judgement. It was then recommended to a standing committee in September 2016.
2017 : The standing committee submitted its report.
2018 : The Bill was passed with 27 amendments in the Lok Sabha in December 2018. The bill was a controversial one and was heavily criticized. It criminalized begging and ignored the recommendations of the standing committee. However, it lapsed and could not be passed by the Rajya Sabha because of the 2019 general elections.
2019 : The Bill was reintroduced in July and passed in August. It was moved in both the Houses by the Minister of Social Justice, Thaavarchand Gehlot. The bill was passed by Rajya Sabha on November 25th despite heavy criticism by the Transgender community.
2020 : The Transgender person ( Protection of Rules) 2020 was introduced to explain certain terms used in the 2019 Act. The draft Rules was released in April 2020 and in August 2020, and finally, on 25th September, the government notified the Rules.
What’s wrong with the Transgender Protection of Rights Act 2019?
The Transgender Persons ( Protection of Rights ) Act, 2019 is an act introduced by the parliament of India to protect the rights of the transgender community. It was introduced in Lok Sabha on July 19, 2019, by Mr. Thaawarchand Gehlot. Below-mentioned is some of the problems that were associated with this act :
1) Firstly the Act was drafted and passed without taking any suggestions or approaching anyone from the community. The assumptions were made based on decades-old data and stereotypes.
2) They are required to have a sex reassignment surgery and approach a district magistrate who will further decide whether they are transgender or not. This is a clear violation of their privacy and it contradicts the 2014 NALSA (National Legal Services Authority of India) judgement by the Supreme Court. It violates their right to self-identification.
The NALSA v. Union of India is a landmark judgement of Supreme Court which declared transgender people as the ‘third gender’. Further, the judgement held that transgender persons were entitled to fundamental rights under articles 14, 15, 16, 19(1)(a) and 21 of the Constitution. It was a landmark judgement because it was the first of its kind to uphold the fundamental rights of transgender persons in India.
3) One of the major drawbacks of this Act was that it used the terms transgender and intersex interchangeably. Both terms have a different meaning. By doing this, the government is striking out the intersex identity. As per Section 2(i) of the Act, intersex or person with intersex variations means a person who at birth shos variations in his or her primary sexual characteristics, external genitalia, chromosomes or hormones from the normative standard of the male and female body. As per Section 2(k) of the Act, Transgender person means a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta.
4) The Act criminalises sexual abuse of a transgender as a punishable offence but it fails to clear as to what constitutes sexual abuse.
5) If a person sexually abuses a transgender, he/she is punishable for a maximum of 2 years which is way less of a punishment for such a heinous act when compared to a crime against a cisgender woman the punishment for which may extend up to life imprisonment.
6) The Act makes it compulsory for trans children to be with their family. If their family does not want them or unable to take care of them then they will be sent to a rehabilitation centre. Instead of sending them to their own community where they will feel safe with their own people, they are being sent to a rehabilitation centre.
7) It doesn’t provide any reservation for transgenders, who are a marginalized community.
8) The Act doesn’t mention anything about civil rights like marriage rights, adoption rights, and property rights, etc.
A halfhearted approach at redemption: Transgender Rules 2020
The Transgender Protection Rules 2020 was passed mainly to explain the 2019 Act in a broader sense. The Rules seems to have tried to bridge the gap between the Act and the directions given by the Supreme Court in NALSA Vs Union of India. It basically contains the manner and specifics in which the certificate will be issued to them. The salient features of the Rules are –
● The application for a certificate of identity that is to be sent to DM should be accompanied by an affidavit and psychologist report.
● The certificate must be issued to the applicant only if he has been a resident for one year under the jurisdiction of that district magistrate.
Analysis of the 2020 Rules:
The draft Rules 2020 was introduced in April 2020 to people for suggestions but no proper discussion was held because of the coronavirus lockdown. Some of the activists said that they were struggling to get shelter and food at that time. It again failed to meet the expectations of the community as most of the problems still remain unsolved and the government again ignored the suggestions and recommendation of the transgender and right activists. The second draft Rules included the definition of Discrimination which was praised by the people but unfortunately, it was removed from the final Rules that were notified.
The need for a psychologist report remains undetermined. The Act specifies that one has a right to self-identification. It implies that a person can determine their gender since there is no evaluation process the magistrate has to give a certificate to people who self identify themselves as a transgender. It is unclear as to why there is a need for a psychologist’s report.
The Rules state that the applicant has to be a resident under the jurisdiction of a District Magistrate for a period of one year which is a very rigid arrangement and can be a burden for some of the transgenders who want to apply for a certificate of identity. Most of the transgender population belongs to the lower strata of society. There are problems like unemployment and homelessness which might make it difficult for them to reside in an area for a whole year.
There are still a lot of things left unclear. The Rules don’t actually recognize the problems of the transgender community. Punishment for a crime against a transgender is way less than punishment against cisgender people. How can someone else decide a person’s identity? The Act doesn’t talk about marriage rights and adoption rights nor do the Rules mention about the issue of invasive surgical procedures on intersex children.
Steps that could have been taken to ensure protection and equity to transgender :
First things first, creating awareness about various gender identities is very important and developing a sense of acceptance of various expressions among society.
Providing reservations to transgenders in fields of employment and education becomes important to empower them. Transgenders belong to a marginalized section of society. Reservations can help the community to grow intellectually as also help in the upliftment of the community.
Penalties for crimes against transgenders should be more stringent. The current penalty is way too less for a heinous crime done against the community or the people. The punishment should be equal to punishment for a crime against cisgender woman. The Act should promote equity and not treat trans people as lesser beings.
Strict action should be taken against family or peers who discriminate or are violent towards transgenders.
More awareness should be promoted in schools and universities.
The Act fails to mention civil rights like marriage, adoption rights. This should also be laid down. The trans community also deserves to lead a happy life with their loved ones.
The journey of transgender people has always been a challenging one and has never been easy. They are struggling and fighting to make their own way in this society. Although as compared to earlier, there has been some improvements in the mindset of the people in society but still there is a long distance to cover. Government is also working towards promoting awareness about them and their rights through the 2019 Act. However, there are a lot of loopholes present in the Act which needs to be corrected to help the community thrive and feel protected. The provisions given in the Act are not enough for the people and acts as a great source of disappointment. The Transgender Persons ( Protection of Rights) Rules 2020 has also not been helpful as it was only provided to justify the Act of 2019. Since during the time of the Rules, the suggestions of the people were taken so naturally, the community has expectations from the government yet the present Rules serve as a great source of discontent yet again.
The struggle doesn’t stop here as there are still a lot of changes which needs to be implemented in the Act. It is hoped that the government will try its best to provide the community with a society where they can feel safe and empowered. The most important thing for the people along with the Act and lawfulness is to be acceptance and respect in the society. For this, society needs to change its perspective and accept them as normal human beings.
 (2014) SC 1863.
NALSA v. UOI (2014) SC1863
Transgender Persons (Protection of Rights ) Act 2019
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