A Critical Look at the Transgender Persons (Protection of Rights) Act, 2019
Disclaimer- The following piece is based on a mix of opinions and facts derived from various sources. We do not intend to offend the sentiments of any individual or community.
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Individuals of the queer community face a lot of discrimination in their everyday lives. They are often not even given the basic respect that every living being is entitled to, removed from mainstream society and forced to live at the periphery. In such dire circumstances, it becomes necessary to have some sort of legal safeguard to guarantee that they can enjoy the same basic rights as anyone else.
The Transgender Persons (Protection of Rights) Act, 2019 was a step in this direction. The trans community was supposed to be given a legal status after the NALSA case judgement (2014), officially being labelled as the third gender. All of the fundamental rights under the Constitution of India which were previously given to the binary genders were now supposed to be extended to transgender persons.
In a landmark step in the history of Indian judiciary, the court upheld the right of citizens to determine their own gender identity, which was separate from their biological traits. The judgement was given under the ambit of Articles 14, 19 and 21. Articles 15 and 16 were also quoted to put a stop to discrimination against trans people on the basis of their gender identity. The apex court further directed the union as well as state governments to ensure the security and equality of the third gender in their jurisdictions including framing welfare schemes and extending reservation to them.
The bill was a result of this judgement and was officially enacted in the year 2019, after plenty of amendments in the chambers of the Parliament. The passing of the bill was a victorious moment for the groups that had been erstwhile struggling for basic recognition in the country.
However the bill that was supposed to be created under the directions of the Supreme Court and the the act that came into being differed in their core principles. Under the act, District Magistrates are awarded with the authority to determine whether a person can be recognized as transgender or not. proof of surgery is also required for the same. This violates the idea of the self-determination of gender identity by individuals.
Moreover, there is a lack of concrete parameters for what amounts as discrimination and the subsequent punishment. There is an imbalance in the punishments that were specified, offences against binary people constitute for higher sentences than non-binary persons. The policy of reservation was also not extended to the members of the community.
The act also misses out on mentioning a lot of other aspects such as workplace opportunities, educational values, setting up of proper health facilities and such. There also exists a huge gap between what is written on paper and what is actually implemented. There is little awareness about the existence of the act itself and the scope for actually getting complaints lodged under it is further restricted.
Most importantly, the act fails to take note of the civil rights that are often not extended to trans people by the society at large. There is a lack of legal framework for social security provisions. The Supreme Court did clarify the right to marry for the members of the community in the same sex marriage verdict (2023).
Even as we have some legal safeguards in place to protect the rights of the people of the trans community in India, there is still a lot that needs to be addressed. There is little awareness and implementation is far from where it should be in terms of accessibility of rights. The existence of the trans community is still treated as a hush-hush topic in our society. Not to mention the lack of legal recognition and rights for other queer identities. The struggle for equality for the community continues in the subcontinent.
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By- Nishita Sinha
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