The LexGaze Weekly - DECIPHER

The Transgender Persons (Protection of Rights) Act, 2019 may have a problem or two. Maybe more.

Ashi Jain

Issue 1 | June 20, 2020

The Transgender Persons (Protection of Rights) Act, 2019 is an Act of the Indian Parliament that received the assent of President Ram Nath Kovind on December 5, 2019. The Act was introduced in Lok Sabha by Thawar Chand Gehlot, Minister of Social Justice and Empowerment in light of the lapse of 2018 Transgender Persons (Protection of Rights) Bill. Even as conversations around the rights of transgender people have been happening for decades together, the first substantial step in the direction came from the Apex Court of India in 2014. The Supreme Court, in National Legal Services Authority v. Union of India (AIR 2014 SC 1863) (“NALSA”) directed that transgender people must be recognized as belonging to the “third gender” along with “male” and “female”. It further directed Central as well as State Governments to frame various schemes for the welfare of the transgender community which may include measures to ensure education, medical care facilities and reservation.

History has, time and again, betrayed the transgender community. The Transgender Persons (Protection of Rights) Act, 2019 followed suit. The Act that was supposed to provide a strong framework benefitting the transgender community and empowering transgender persons in social, economic as well as educational fields did not quite do so. Instead, it is only a sugar-coated trap. Not only does the Act not solve any problems, it goes on to create some.

Following is what is wrong with the Act:

1. Section 5 of the Act is in direct violation of the NALSA judgment, which affirmed the right to self-determination of one’s gender as male, female or transgender without the mandate of any medical certificate or sex-reassignment surgery. The section gives the District Magistrate the right to humiliate a transgender person by asking invasive questions and physically checking for surgeries, to prove that one is a transgender person.

2. The Act remains silent as to what must be done when a District Magistrate may not issue an Identity certificate or refuses to recognize a person as transgender.

3. Section 18(d) of the Act gives a maximum sentence of 2 years to anyone who sexually violates a transgender person. A much higher term of punishment (7 years to life imprisonment) is prescribed for anyone doing the same crime against a cisgender woman. This difference proves blatant discrimination treating the transgender persons as less of a human. Notably, the term “sexual abuse” has not been defined either.

4. The Act mandates transgender people to live with their birth families, which is most often the place they face the maximum hostility and rejection from. The Act deprives transgender people the freedom to reside with their chosen families, communities, partners, friends, etc.

5. The Act uses the term “non-discrimination” but does not provide a comprehensive definition of ‘discrimination’ or for that matter the nature of discrimination against transgender persons making it vague and difficult in the situations of criminal acts. It doesn’t provide any anti-discriminatory laws for them.

6. The NALSA judgment also noted that transgender persons are “entitled to enjoy economic, social, cultural and political rights without discrimination, because forms of discrimination on the ground of gender are violative of fundamental freedoms and human rights.” The Act does not deal with the realisation of civil rights such as marriage, civil partnership, adoption and property rights as well as social security and pension, thereby continuing to deprive transgender persons of their fundamental rights and the constitutional guarantee provided by the Supreme Court in NALSA.

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