The Transgender Persons (Protection Of Rights) Act, 2019

Disha Agarwal | ICFAI Law School, Hyderabad | 19th June 2020 

The first attempt at bringing legislation with respect to Transgender was in 2014 after judgment passed in National Legal Services Authority of India (NALSA) V. Union of India Case. A private bill was introduces by a member of Rajya Sabha namely The Rights of Transgender Persons Bill, 2014, but the bill did not pass through. In 2016, another bill was introduced by the government in the Lok Sabha and was referred to the Standing Committee on Social Justice and Empowerment on the Bill, but the bill was lapsed due to the dissolution of 16^th Lok Sabha In September 2018, after the judgment passed in Navtej Singh Johar v Union of India^[1], The Parliament was compelled to pass a progressive bill which ensures protection and safety of Transgender from all kinds of discrimination. Therefore, THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS), Bill was passed in the December 2018 which later became an act in 2019 after the assent of the President on 5^th December 2019. The main aim of any social legislation is to protect the rights of the oppressed but this Act was in contrast of that.

Legal Provisions of the Act:

This Act aimed to define the term Transgender:

• Transgender is defined as any person whose gender at the time of birth does not match with the present gender.
• It extends to include trans-woman, trans-man irrespective of whether they have undergone sex reassignment surgery or any other theory in this regard.
• It also includes persons with intersex variations (persons who at the time of their birth show variance in their sexual characteristics, chromosomes from standard prescriptive male or female gender.) 
• It also includes gender-queer persons and other people having socio-cultural identities such as kinner, hijra- terms used in Indian languages for transgender.

The definition of family according to the Act is given as persons related by blood, marriage or adoption.

Section 3 deals with the prohibition against discrimination:

• It states that no person or establishment shall discriminate against the transgender by way of denial, discontinuation or unfair treatment in the following areas such as education establishments, employment, occupation, health-care services.
• It also states that there should be no discrimination with regard to access to, or enjoyment of any goods or services, or any privilege, benefit which is generally available to the public at large.
• The Act also provides for right to movement, reside, purchase, rent etc along with this it also provides right to stand, hold public and private offices. 

Recognition of Identity of Transgender:

Section 4 states that, a transgender person is required to submit an application for receiving the certificate of identity which can later be modified. The District Magistrate will issue the following certificate after complying with the established procedure. A certificate of identity issued stands as a proof of recognition of the identity of the transgender person holding it.

According to Section 7 in case the Transgender person changes their gender through the surgery, an application is to be made to the District Magistrate along with the certificate issued by the  Medical Superintendent or Chief Medical Officer of the hospital in which the surgery has taken place. If the District Magistrate on receipt of documents is satisfied then the revised certificate is issued. 

Welfare Measures taken by the Government:

The Act provides that necessary steps will be taken by the Government to ensure full and effective participation in the society so as to make them feel as a part of the society. It also states that the welfare measures taken by the Government will be non-discriminatory and transgender sensitive. It ensures that steps will be taken to provide rehabilitation facilities to the Transgender community.

Education, Social-Security and Health related provisions:

• The Government will provide educational, sports and recreational facilities inclusive in the Educational institution funded by the relevant Government.
• It ensures provision of proper medical care facility for sex reassignment surgery and other kinds of hormonal surgeries.
• It also aims to set up separate human immunodeficiency virus Sero-surveillance Centres to conduct sero-surveillance as per the guidelines of  National AIDS Control Organisation.
• It also aims to provide counseling and other facilities to ensure full protection and security in terms of health related aspects.
• There is also a provision regarding coverage of huge medical expenses by an insurance scheme for surgeries including Sex reassignment surgery and other health related issues.

The Act also provides for the establishment of National Council for Transgender (NCT) to redress grievances, to monitor various policies, welfare programs etc and to advise Central Government for formulation of legislation, project etc with respect to Transgender.

Offences & Penalties:

Whoever indulges in the following offences are liable for imprisonment which shall extend upto 2 years with minimum being 6 months along with fine.

• Compelling to indulge in bonded labor.
• Denial of right of public use, passage.
• Forceful eviction from household or place of residence.
• Any form of physical, emotional, verbal, emotional, economic abuse.

Criticisms:

• There had been so many requests to increase the scope of the definition of family provided under the Act, considering many transgender persons live away from their family due to non-acceptance, discrimination, violence faced in their biological families. Therefore, there is need to include chosen family or accepted family under the ambit of the definition family.
• The Act has failed to consider various aspects of Transgender, trans sexual, inter-sex persons, gender queer etc, It has also failed to discriminate all of them in respect of their true meanings. 
• There are specific provisions enshrined against discrimination in education, employment, health care, right to movement, right to purchase etc. All these provisions are already guaranteed under the Constitution. Also, the provision makes no practical sense due to lack of punishment prescribed in case such discrimination has been made. There is no monetary or punitive compensation made to the Transgender person in case of discrimination.
• The biggest drawback of the Act is the procedure to be followed for getting certificate of identity. It is in contrary to the judgment^[2] which emphasizes that self-determination of the gender is as an integral part of personal liberty of a person and is therefore recognized as a fundamental right. It is also unclear with respect to the process followed like on what grounds can the certificate be accepted or refused, procedure to be followed in case of refusal, process of appeal etc. By enshrining such an ambiguous provision in the Act, it has defeated the whole and sole purpose of the Act i.e to provide protection to the Transgender community.
• Another important drawback is the absence of any sort of reservation provided in education, employment or any other sector. It is essential that transgender be considered as a socially and economically backward class and Government was to formulate laws keeping this in mind, but instead what is already been granted in the Constitution is being reiterated by way of this Act.
• There is also no clause pertaining to the confidentiality in respect of the procedure for obtaining certificate. According to the Personal Data Protection Bill, 2018 it classifies transgender and intersex data as sensitive data. Despite that, there is no provision stating prohibition on disclosure of data related to Transgender.

Therefore, the Act rather than being progressive is regressive for the Transgender community. Instead of protecting them, it has created several ways to exploit them.  The nomenclature of the Act gives a very restrictive view as concerned only with Transgender. With the history of violence, discrimination faced by them, The Act should have been a way forward to the struggle faced by them throughout the decades rather than being an impediment.

^[1] AIR 2018 SC 4321

^[2] NALSA vs. UOI (2014) 5 SCC 438