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Critical Analysis of the Transgender Persons working with LGBTQ+ individuals in

(Protection of Rights) Act, 2019 social work?

Gaurav Kohli
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Partner at Jural Solutions Advocates & Solicitors + Follow
Published Jun 2, 2020 What are some effective storytelling
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INTRODUCTION rights?

The Transgender Persons (Protection of Rights) Act, 2019 was introduced in Lok Sabha on
Philanthropy
July 19, 2019 by the Minister for Social Justice and Empowerment, Mr. Thaawarchand
What are the best practices for
Gehlot, however, the issue predates the birth of our motherland. Our society has been
ensuring partnership agreements
shaped for the binary gender with no place or tolerance for anyone with a biological
align with LGBTQ+ rights principles?
deviance. The Transgender Community in the broad sense comprises of Hijras or Eunuchs.
This community due to their characteristics are often excluded from the general population
and are forced to live a predetermined life of a destitute. Justice K.S. Radhakrishnan rightly Public Administration
pays emphasis on the problems paved for the Transgender Community in the opening
How can you make your human
paragraph of his judgement in National Legal Services Authority Vs. Union of India[1], the services program more inclusive for
relevant paragraph of the judgement is reproduced hereinunder: LGBTQ+ clients?

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contain or embrace different gender identities and
expressions, a mindset which we have to change.”
Explore topics
As per the Census 2011[2], the total population of the transgender community was 4.88 Sales
lakhs. The non- recognition of the identity of Transgenders by the state has led to years of
Marketing
discrimination of this large community. Even after the NALSA judgement was passed on
15.04.2014, till date the legislature has failed to provide the necessary statutory mechanism Business Administration
for uplifting the order of the Hon’ble Supreme Court. As the theme of this article proceeds
HR Management
further, it may be pertinent to deliberate on the fact that, at present there is non-recognition
of the Third Gender in the criminal jurisprudence of our country. Section 377 of the Indian Content Management

Penal Code which pertains to unnatural offences provides protection to man, woman and
Engineering
even animals but fails to provide the same protection to the transgender community. Even
more so, Section 8 of the Indian Penal Code pertains to binary gender and fails to recognise Soft Skills

the third gender.

See All

In the Recent Case of Navtej Singh Johar and Others[3], the Hon’ble Supreme Court has
scrutinised Section 377 and added the concept of consent to it, thereby decriminalising
Homosexuality, however, failed to comment on the inclusion of Transgender community in
the ambit of protection against unnatural sexual offence without consent. It’s a fundamental
principal in law that penal statutes have to be strictly construed, the present situation has
created a lacuna in law which can only be tackled with a correct implementation of the
Transgender Persons (Protection of Rights) Act and simultaneous amendments in our
criminal jurisprudence. The present article will now delve into the effective holding in the
NALSA and other related Judgements dealing with rights of the transgender community
after which the it will analyse in detail the Transgender Persons (Protection of Rights) Act
2019; concluding with constructive criticism of the Act.

•NALSAJUDGEMENT2014:Transgender-anumbrella
categorythatincludesthosewhoidentifyasmaleto
female,femaletomale,intersexed,andtranssexual
personsaswellasthosewhoidentifyashijras,kothis,
kinnars, aravanis/thirunangis, jogappas/jogta,
shivshakthisandeunuchs(atermthatisoutdated).
•Thetermtransgenderincludes'pre-operative,post-
operativeandnon-operative'transsexualswhostrongly
identifywithpersonsoftheoppositesex.
•Movesawayfromabiologicalevaluationofgenderfor
purposesofthelaw.
•Hijrastobetreatedasa"thirdgender"tosafeguard
theirfundamentalrights.
•Transgenderpersonshavetherighttodecidetheirself
identifiedgender.

NALSA AND OTHER JUDGEMENTS PERTAINING TO THE TRANSGENDER

COMMUNITY

In view of the law laid down by the Hon’ble Supreme Court of India in NALSA case, the
“transgender persons” have been treated as “third gender” for the purpose of safeguarding
their rights under Part III of our Constitution and the laws made by the Parliament and the
State Legislature. While passing the landmark judgement, the Hon’ble Supreme Court of
India rightly observed that:

“119. The role of the Court is to understand the central

purpose and theme of the Constitution for the welfare of
the society. Our Constitution, like the law of the society,
is a living organism. It is based on a factual and social
realty that is constantly changing. Sometimes a change
in the law precedes societal change and is even
intended to stimulate it. Sometimes, a change in the law
is the result in the social realty. When we discuss about
the rights of TGs in the constitutional context, we find
that in order to bring about complete paradigm shift, law
has to play more pre-dominant role. As TGs in India, are
neither male nor female, treating them as belonging to
either of the aforesaid categories, is the denial of these
constitutional rights. It is the denial of social justice
which in turn has the effect of denying political and
economic justice.

After this judgment, the “transgender/third gender” are entitled to fundamental rights
enshrined under the Constitution of India and are also entitled to the protection of all laws
within the territory of India. The operative paragraph of the NALSA Judgement is
reproduced hereinunder:

1. Hijras, Eunuchs, apart from binary gender, be treated as “third gender” for the purpose
of safeguarding their rights under Part III of our Constitution and the laws made by the
Parliament and the State Legislature.

2. Transgender persons’ right to decide their self-identified gender is also upheld and the
Centre and State Governments are directed to grant legal recognition of their gender
identity such as male, female or as third gender.

3. We direct the Centre and the State Governments to take steps to treat them as socially
and educationally backward classes of citizens and extend all kinds of reservation in cases
of admission in educational institutions and for public appointments.

4. Centre and State Governments are directed to operate separate HIV Sero-survellance
Centres since Hijras/Transgenders face several sexual health issues.

5. Centre and State Governments should seriously address the problems being faced by
Hijras/Transgenders such as fear, shame, gender dysphoria, social pressure, depression,
suicidal tendencies, social stigma, etc. and any insistence for SRS for declaring one’s
gender is immoral and illegal.

6. Centre and State Governments should take proper measures to provide medical care to
TGs in the hospitals and also provide them separate public toilets and other facilities.

7. Centre and State Governments should also take steps for framing various social welfare
schemes for their betterment.

8. Centre and State Governments should take steps to create public awareness so that
TGs will feel that they are also part and parcel of the social life and be not treated as
untouchables.

9. Centre and the State Governments should also take measures to regain their respect
and place in the society which once they enjoyed in our cultural and social life.

131. Writ Petitions are, accordingly, allowed, as above.”[4]

The judgment in NALSA’s case has been upheld by the Hon’ble Supreme Court in another
landmark judgment, of right to privacy, in the case of K.S. Puttaswamy and Anr. Vs. Union of
India and Ors [5]. In paragraph 96 of the judgment, it was observed as hereunder: -

“96. NALSA indicates the rationale for grounding of a

right to privacy in the protection of gender identity
within Article 15. The intersection of Article 15 with
Article 21 locates a constitutional right to privacy as an
expression of individual autonomy, dignity and identity.
NALSA indicates that the right to privacy does not
necessarily have to fall within the ambit of any one
provision in the chapter on fundamental rights.
Intersecting rights recognise the right to privacy.
Though primarily, it is in the guarantee of life and
personal liberty under Article 21 that a constitutional
right to privacy dwells, it is enriched by the values
incorporated in other rights which are enumerated in
Part III of the Constitution.”

In the case of Navtej Singh Johar and Others,[6] , while discussing the judgment in the
NALSA’s case, Hon’ble Supreme Court observed in paragraph 10 as hereunder: -

“10. The aforesaid judgment, as is manifest, lays focus

on inalienable “gender identity” and correctly connects
with human rights and the constitutionally guaranteed
right to life and liberty with dignity. It lays stress on the
judicial recognition of such rights and an inextricable
component of Article 21 of the Constitution and decries
any discrimination as that would offend Article 14, the
“fon juris” of our Constitution.”

CRITICAL ANALYSES OF THE TRANSGENDER PERSONS (PROTECTION OF

RIGHTS) ACT, 2019

The preamble to the Transgender Persons (Protection of Rights) Act 2019 reads as “to
provide for protection of rights of transgender persons and their welfare and for matters
connected therewith and incidental thereto.” and the act shall extend to the whole of India.

Section 2(a) – (k) of the proposed Act are the definition clauses. Section 2(a) and (b)
empower the Central and State Authority respectively as the ‘appropriate government’ in
relation to the proposed act. Section 2(b) embeds the definition of ‘establishment’. Section
2(c) defines family and includes people related by blood or marriage or adoption in
accordance with law. Section 2(d) defines “inclusive education" which is stated to mean a
system of education wherein transgender students learn together with other students
without fear of discrimination, neglect, harassment or intimidation and the system of
teaching and learning is suitably adapted to meet the learning needs of such students. The
definitions which enter into the Indian jurisprudence for the first time are embedded in
Section 2(i) which defines "person with intersex variations’ and include a person who at
birth shows variation in his or her primary sexual characteristics, external genitalia,
chromosomes or hormones from normative standard of male or female body.

Section 2(k) provides the definition of a "transgender person" and it is stated to include 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. The stated section provides a exhaustive definition for the
purpose of the act.

Chapter II of the Proposed Act Prohibits Discrimination of Transgender Persons as defined

under Section 2(k). Section 3 of the Proposed Act prohibits the discrimination of
Transgender Persons on the following grounds:

(a) the denial, or discontinuation of, or unfair treatment in, educational establishments and
services thereof;

(b) the unfair treatment in, or in relation to, employment or occupation;

(c) the denial of, or termination from, employment or occupation;

(d) the denial or discontinuation of, or unfair treatment in, healthcare services;

(e) the denial or discontinuation of, or unfair treatment with regard to, access to, or
provision or enjoyment or use of any goods, accommodation, service, facility, benefit,
privilege or opportunity dedicated to the use of the general public or customarily available
to the public;

(f) the denial or discontinuation of, or unfair treatment with regard to the right of movement;

(g) the denial or discontinuation of, or unfair treatment with regard to the right to reside,
purchase, rent, or otherwise occupy any property;

(h) the denial or discontinuation of, or unfair treatment in, the opportunity to stand for or
hold public or private office; and

(i) the denial of access to, removal from, or unfair treatment in, Government or private
establishment in whose care or custody a transgender person may be.

Chapter III of the proposed Act pertains to the recognition of Identity of a transgender
person. Section 4 provides the transgender person a right to self-perceived gender identity.
Section 5 provides for the Application for certificate of identity to the District Magistrate for
issuing a certificate of identity as a transgender person, in such form and manner, and
accompanied with such documents, as may be prescribed. The District Magistrate is
empowered under Section 6 of the proposed act to issue a certificate of identity of a
transgender person. A certificate issued under this section shall confer rights and be a
proof of recognition of his identity as a transgender person.

Section 7 of the act covers the contingency of change into binary sex after the issuance of a
certificate under section 6 and states that if a transgender person undergoes surgery to
change gender either as a male or female, such person may make an application, along with
a certificate issued to that effect by the Medical Superintendent or Chief Medical Officer of
the medical institution in which that person has undergone surgery, to the District
Magistrate for revised certificate, in such form and manner as may be prescribed. The
District Magistrate shall, on receipt of an application along with the certificate issued by the
Medical Superintendent or Chief Medical Officer, and on being satisfied with the
correctness of such certificate, issue a certificate indicating change in gender in such form
and manner and within such time, as may be prescribed. The person who has been issued a
certificate of identity under section 6 or a revised certificate under Section 7 shall be
entitled to change the first name in the birth certificate and all other official documents
relating to the identity of such person: Provided that such change in gender and the issue of
revised certificate under Section 7 shall not affect the rights and entitlements of such
person under this Act

Chapter IV of the act embeds the welfare measures for the transgender persons and
obligates the appropriate government to take steps to secure full and effective participation
of transgender persons and their inclusion in society. Section 8 of the proposed act
obligates the appropriate government to take such welfare measures as may be prescribed
to protect the rights and interests of transgender persons and facilitate their access to
welfare schemes framed by that Government. To formulate welfare schemes and
programmes which are transgender sensitive, non-stigmatising and non-discriminatory. To
take steps for the rescue, protection and rehabilitation of transgender persons to address
the needs of such persons and to take appropriate measures to promote and protect the
right of transgender persons to participate in cultural and recreational activities.

Chapter V states the obligations cast on establishments and other persons for ensuring
non-discrimination of the transgender community. Section 9 prohibits discrimination
relating to employment including, but not limited to, recruitment, promotion and other
related issues. Section 10 obligates the establishment to ensure compliance with the
provisions of this Act and provide such facilities to transgender persons as may be
prescribed. Section 11 directs the establishment to designate a person to be a complaint
officer to deal with the complaints relating to violation of the provisions of this Act. It is
necessary to reiterate Section 12 of the proposed act:

“12. (1) No child shall be separated from parents or immediate family on the ground of
being a transgender, except on an order of a competent court, in the interest of such child.

(2) Every transgender person shall have—

(a) a right to reside in the household where parent or immediate family members reside;

(b) a right not to be excluded from such household or any part thereof; and

(c) a right to enjoy and use the facilities of such household in a non-discriminatory manner.

(3) Where any parent or a member of his immediate family is unable to take care of a
transgender, the competent court shall by an order direct such person to be placed in
rehabilitation centre.”

It may be deemed important by the legislature at some point to clarify as to whether section
12(2) applies only to a transgender child or to every transgender person as presently the
stated section suffers from ambiguity. It is further necessary to point out that in case of no
immediate family, the transgender person in to be placed in a rehabilitation centre, which
the act fails to define or provide for.

Chapter VI is a step of the legislature towards promoting education, social security and
health of transgender persons. Section 13 Seeks to provide equality in the field of inclusive
education and opportunities for sports, recreation and leisure activities to transgender
persons without discrimination on an equal basis with others. This obligation is cast on
every educational institution funded or recognised by the appropriate Government. As per
Section 2(d) “inclusive education" is stated to mean a system of education wherein
transgender students learn together with other students without fear of discrimination,
neglect, harassment or intimidation and the system of teaching and learning is suitably
adapted to meet the learning needs of such students. Section 14 directs the appropriate
governments to formulate welfare schemes and programmes to facilitate and support
livelihood for transgender persons including their vocational training and self-employment.

Section 15 of the Proposed act directs the appropriate government to take the following
health related measures for enabling the transgender community to better healthcare:

(a) to set up separate human immunodeficiency virus Sero-surveillance Centres to conduct

sero-surveillance for such persons in accordance with the guidelines issued by the National
AIDS Control Organisation in this behalf;

(b) to provide for medical care facility including sex reassignment surgery and hormonal
therapy;

(c) before and after sex reassignment surgery and hormonal therapy counselling;

(d) bring out a Health Manual related to sex reassignment surgery in accordance with the
World Profession Association for Transgender Health guidelines;

(e) review of medical curriculum and research for doctors to address their specific health
issues;

(f) to facilitate access to transgender persons in hospitals and other healthcare institutions
and centres;

(g) provision for coverage of medical expenses by a comprehensive insurance scheme for
Sex Reassignment Surgery, hormonal therapy, laser therapy or any other health issues of
transgender persons.

At the stage of critical analysis of the debated Act, it shall be a point of consideration as to
whether the appropriate governments can branch out to private insurance companies in
order to obligate them to compulsorily provide insurance schemes for coverage of medical
expenses for Sex Reassignment Surgery, hormonal therapy, laser therapy or any other
health issues of transgender persons.

The Act by the way of chapter VII proposes the constitution of a National Council for
Transgender Persons. Section 16 of the act lays down the constitution for this council and
as per the proposed act it shall consist of

(a) the Union Minister in-charge of the Ministry of Social Justice and Empowerment,
Chairperson, ex officio;

(b) the Minister of State, in-charge of the Ministry of Social Justice and Empowerment in
the Government, Vice-Chairperson, ex officio;

(c) Secretary to the Government of India in-charge of the Ministry of Social Justice and
Empowerment, Member, ex officio;

(d) one representative each from the Ministries of Health and Family Welfare, Home Affairs,
Housing and Urban Affairs, Minority Affairs, Human Resources Development, Rural
Development, Labour and Employment and Departments of Legal Affairs, Pensions and
Pensioners Welfare and National Institute for Transforming India Aayog, not below the rank
of Joint Secretaries to the Government of India, Members, ex officio;

(e) one representative each from the National Human Rights Commission and National
Commission for Women, not below the rank of Joint Secretaries to the Government of India,
Members, ex officio;

(f) representatives of the State Governments and Union territories by rotation, one each
from the North, South, East, West and North-East regions, to be nominated by the Central
Government, Members, ex officio;

(g) five representatives of transgender community, by rotation, from the State Governments
and Union territories, one each from the North, South, East, West and North-East regions,
to be nominated by the Central Government, Members; (h) five experts, to represent non-
governmental organisations or associations, working for the welfare of transgender
persons, to be nominated by the Central Government, Members; and

(i) Joint Secretary to the Government of India in the Ministry of Social Justice and
Empowerment dealing with the welfare of the transgender persons, Member Secretary, ex
officio. The term for a Member of National Council, other than ex officio member, shall be
three years from the date of his nomination.

The Functions the National Council as defined under Section 17 of the proposed act are as
follows:

(a) to advise the Central Government on the formulation of policies, programmes, legislation
and projects with respect to transgender persons;

(b) to monitor and evaluate the impact of policies and programmes designed for achieving
equality and full participation of transgender persons;

(c) to review and coordinate the activities of all the departments of Government and other
Governmental and non-Governmental Organisations which are dealing with matters relating
to transgender persons;

(d) to redress the grievances of transgender persons; and

(e) to perform such other functions as may be prescribed by the Central Government.

Chapter VIII prescribes the offenses and penalties under Section 18 of the proposed act.
Offenses detailed under Section 18 (a) to (d) 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 offenses are stated to include:

(a) compels or entices a transgender person to indulge in the act of forced or bonded
labour other than any compulsory service for public purposes imposed by Government;

(b) denies a transgender person the right of passage to a public place or obstructs such
person from using or having access to a public place to which other members have access
to or a right to use;

(c) forces or causes a transgender person to leave household, village or other place of
residence; and

(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.

It is pertinent to point out that the punishment prescribed by the act is imprisonment not
less than 6 months extending up to two years with fine. Section 18 (d) includes sexual
abuse, equivalent to an offense under Section 377 of the Indian Penal Code. The
punishment prescribed under Section 377 of the Indian Penal Code is Imprisonment for life.
It would be pertinent to analyse in the further sections as to whether is act would have an
over ridding effect on the Indian Penal Code or not? It is already a debate in the legal sphere
as to whether special law would prevail over general law. If that is the case, the punishment
prescribed by the proposed act would not be justified.

Section 19 of the proposed act obligates the Central Government to provide funding to the
National Council, constituted under Section 16, for the carrying out purposes of the act.

Section 20 answers the question posed above as to the over ridding effect of the act. Act is
stated to be not in derogation of any other law. The provisions of the act are to be in
addition to the existing provisions which are implied to include the Indian Penal Code.
Eventually, the judiciary would have to clarify as to whether simultaneous proceedings could
be initiated before the National Council and the Criminal Courts. Can both forums convict
the accused with imprisonment for the same offence?

Section 21 of the proposed act is in my opinion something that would not pass by easy
through the transgender community, lawyers and activists. The same is reproduced
hereinunder for better analyses:

“No suit, prosecution or other legal proceeding shall lie against the appropriate Government
or any local authority or any officer of the Government in respect of anything which is in
good faith done or intended to be done in pursuance of the provisions of this Act and any
rules made thereunder”

This section saves the appropriate government from being liable for not carrying out any
duty prescribed under the act. This substantiates my opinion that this is a half-hearted
effort of the legislature.

Section 22 empowers the appropriate government to make rules for carrying out the
provisions of the act. The section 22(2) further clarifies the matters pertaining to the power
given under this section. The matters are listed as follows:

(a) the form and manner in which an application shall be made under section 5;

(b) the procedure, form and manner and the period within which a certificate of identity is
issued under sub-section (1) of section 6;

(c) the form and manner in which an application shall be made under sub-section (1) of
section 7;

(d) the form, period and manner for issuing revised certificate under sub-section (2) of
section 7;

(e) welfare measures to be provided under sub-section (2) of section 8;

(f) facilities to be provided under section 10;

(g) other functions of the National Council under clause (e) of section 17; and

(h) any other matter which is required to be or may be prescribed.

Section 22(3) and (4) further directs the rule as made under 22(2) to be placed before the
respective legislature as soon as it’s made for approval.

The proposed act concludes at Section 23, which gives the Central Government power to
remove difficulties which may arise in giving effect to the provisions of the act by order
published in the official gazette, however, no such order can be made after two years from
the date of commencement the act.

CONSTRUCTIVE CRITISISM OF THE TRANSGENDER PERSON (PROTECTION

OF RIGHTS) ACT 2019

The discussed Act in my opinion is an encouraging step towards the welfare and upliftment
of the transgender community, however, it lacks insight and could be considered an
outsider’s effort to include someone, in a community which has been self-sufficient on its
own. The effort of the legislature should have been to marginalise the difference between
the communities instead this act lists out contingencies without much deliberate thought
and insight for the years to come. Our nation is opening up to the realisation of a third
gender which can be seen as a positive sign of liberal growth but in order to facilitate this
transition better it would be only just to point out the difficulties this discussed Act poses to
present in case it is implemented the way it is presently drafted.

It is pertinent the criticism is structured in the order of the statements and reasons behind
the act. The Transgender Persons (Protection of Rights) Act, 2019 seeks to—

(a) define the expression "transgender person";

(b) prohibit discrimination against transgender persons;

(c) confer right upon transgender persons to be recognised as such, and a right to self-
perceived gender identity;

(d) make provisions for issue of certificate of identity to transgender persons;

(e) provide that no establishment shall discriminate against transgender persons in matters
relating to employment, recruitment, promotion and other related issues;

(f) provide for grievance redressal mechanism in each establishment;

(g) establish aLike

National Council
Commentfor Transgender
Share Persons; 16
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