Key Issues With Transgender Persons (Protection Of Rights) Act, 2019

Following this framework, the Union government, in 2016, introduced a draft bill codifying several guidelines passed by the Supreme Court in the NALSA judgment and incorporating additional safeguards regarding access to housing, public services, education, etc. However, certain provisions were argued to be inconsistent with the NALSA judgment, and the matter was referred to the Parliamentary Standing Committee, which submitted that several parts of the Bill were indeed discriminatory, inadequate, vague, and inconsistent with the Supreme Court's judgment. Despite heavy criticism that the Act diminishes the rights available to transgender persons, it was passed by both Houses and became effective in 2019 as The Transgender Persons (Protection of Rights) Act, 2019 (hereinafter referred to as 'the Act'). This article will examine the same issues whether the provisions of the Act are contrary to the NALSA judgment and the Constitution.

1.2 Right to Self-Determination of Gender

Section 4 of the Act states that:

A transgender person shall have a right to be recognised as such, in accordance with the provisions of this Act.

Further, Sections 5 and 6 state that a transgender person, or their parent (in the case of a minor), may make an application to the District Magistrate for the issuance of such a certificate. Only upon the issuance of this certificate shall the person be conferred with “a right to self-perceived gender identity.” From these sections, it is quite clear that the right to self-determination of gender and other associated basic rights are made subject to executive approval.

However, in NALSA v. Union of India (2014 INSC 275), the Supreme Court, declaring self-determination of gender as a fundamental right, held that:

Self-determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed under Article 21 of the Constitution of India.

Elaborating on personal autonomy and self-expression, the Court further referred to Anuj Garg v. Hotel Association of India (2007 INSC 1242), wherein the Supreme Court held that personal autonomy includes both the negative right of not being subject to interference by others and the positive right of individuals to make decisions about their lives, to express themselves, and to choose which activities to take part in. In other words, the Court held that self-declaration of gender is a part of personal life and cannot be interfered with by the State through any means.

The Court further pointed out that self-expression of gender identity through speech, choice of name, clothing, body characteristics, and other means is also protected under Article 19(1)(a) and Article 21. Prohibition, restriction, or regulation of such activities not only goes against the Constitution but also violates international human rights instruments like the Yogyakarta Principles, on which the Supreme Court heavily relied to interpret transgender rights.

Even if we assume that Parliament has enacted the procedure to identify true beneficiaries for its future policies and schemes, it does not explain the logic behind subjecting the self-declaration of gender to executive approval. No doubt, the State could require compliance with such directives while providing positive benefits, but in the ordinary course, it violates the right to privacy and personal autonomy, as it compels a transgender person to disclose their gender in public records. Additionally, this unnecessary burden of gender certification is only found in this statute, whereas cisgender individuals are not subject to any such procedure.

Consequently, Sections 4, 5, and 6 violate both aspects of the NALSA judgment and impose an undue burden on trans people by subjecting them to unnecessary bureaucratic certification—an area in which the State has no legitimate interest, as it pertains to the personal life of an individual.

1.3 Lack of Affirmative Action Provisions

Although reservation is not a fundamental right and cannot be claimed as such from the State, the discretion of the State in providing it is not absolute and can be subject to judicial review. In NALSA, the Supreme Court exercised such review and considered the backwardness and underrepresentation of transgender persons in the education and employment sectors. The Court held that:

TGs have been systematically denied the rights under Article 15(2), which prohibits any disability, liability, restriction, or condition in regard to access to public places. TGs have also not been afforded the special provisions envisaged under Article 15(4) for the advancement of socially and educationally backward classes (SEBC) of citizens, which they are, and hence are legally entitled and eligible to receive the benefits of SEBC. The State is bound to take affirmative action for their advancement so that the injustice done to them for centuries may be remedied… TGs have also been denied rights under Article 16(2) and discriminated against in respect of employment or office under the State on the ground of sex. TGs are also entitled to reservation in the matter of appointment, as envisaged under Article 16(4) of the Constitution. The State is bound to take affirmative action to give them due representation in public services.

The rationale behind such a decision can be found in several government studies. For instance, the literacy rate among transgender persons is 57.06%, compared to 74.04% for the general population. Participation in the public sector is nearly zero, and others are forced to work in informal private jobs, including begging and sex work.

In this context, the Court recognized transgender persons as eligible for reservation and directed the State to provide it, thereby making reservation a vested constitutional right for transgender persons. However, the present legislation does not mention the State's positive obligation to implement such directives. Even the special chapters titled “Welfare Measures by the Government” (Chapter 4) and “Education, Healthcare, and Social Security of Transgender Persons” (Chapter 6) do not mention reservation in their provisions. This deliberate legislative omission renders the Act blatantly inconsistent with Supreme Court directives and violative of the principle of substantive equality, as recognized by the Supreme Court in State of Kerala v. N.M. Thomas (1975 INSC 224).

1.4 Offences and Penalties

Section 18 of the Act provides that:

Whoever,

(d) harms or injures or endangers the life, safety, health or well-being, whether mental or physical, of a transgender person or tends to do acts including causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine.

The clause aims to criminalize physical, mental, sexual, verbal, emotional, and economic abuse of transgender persons. However, it does not even attempt to define such terms. The very objective behind introducing such a provision was that trans people found themselves in a grey legal area, where they could not file complaints for such incidents as they do not fall under the binary gender code, which is a prerequisite for Section 375 (rape) and many other sections on sexual abuse.

For instance, in the Bhartiya Nyaya Sanhita, 2023, physical and sexual abuse against the human body has been categorized and defined in several sections. However, in the Act, these terms are neither defined in the definition clause nor cross-referenced for further understanding. This makes it very difficult for both the executive and the judiciary to prosecute individuals, as there is no proper classification of offences. Criminalizing physical abuse under a broad title, without even defining it, ignores every legal and practical problem that might arise in implementing the clause. Such structuring allows accused individuals legal loopholes to escape punishment, leaving almost 73–92% of the transgender population without legal remedy, many of whom face violence from the public, family members, and law enforcement officials.

Similar issues can be found in vague phrases like "mental," "emotional," and "verbal" abuse. If we look at the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the Act has clearly defined and criminalized derogatory slurs, phrases, and associated discriminatory practices faced by Scheduled Caste and Tribe members. However, the present legislation has left such offences open-ended and fails to explicitly incorporate the different forms of harassment faced by transgender persons.

In a 2018 study by the National Human Rights Commission (NHRC), it was reported that 92% of transgender persons are unable to participate in any form of economic activity, which further forces them into forced labour and sex work. Other studies noted that even the gharana system exploits trans members economically and physically in the name of family bonds and shelter. In such systems, clans are headed by gurus, and they maintain a strict and rigid hierarchical order over other members. Members are delegated work like begging and performing at social events. However, whole or partial earnings made from such work must be surrendered to the gharana head, and non-compliance leads to physical violence. These systems, which may appear to function as free, familial collectives, have remained opaque and exploitative, especially economically. However, Section 18 does not explicitly address such economic abuses.

For all such abuses, the maximum punishment prescribed is two years' imprisonment and a fine, which is discriminatory, as the same offences under the Bhartiya Nyaya Sanhita, 2023, may attract life imprisonment. In fact, it is the transgender community that is most vulnerable to sexual violence and abuse, with data suggesting that almost 4 out of 10 people face such abuses in early childhood. In another report by the National Integrated Biological and Behavioural Surveillance (NIBBS), NACO, and the Ministry of Health and Family Welfare, it was indicated that 31.5% of transwomen said their first sexual encounter with a man was non-consensual/forced. A majority of these victims were minors, with 30% being 15–17 years old and 26% under 14. Instead of making the law more stringent, the section even fails to provide the same punishment available under the Bhartiya Nyaya Sanhita, making it violative of Articles 14, 15, and 21 of the Constitution.

The enactment of this legislation, which was intended to enhance fundamental rights, has instead undermined them at a fundamental level. There are also several issues that have not been discussed in this article, such as the absence of punishment for denying public services, residential rights, and the lack of rehabilitation schemes. By omitting such subjects, the legislation has pushed the development of transgender rights one step backward, violating basic principles of human rights such as non-retrogression.

Views are personal.