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THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019: A

CRITICAL STUDY

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Purakala ISSN: 0972-3641
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Received: 10th April 2022 Revised: 28th April 2022 Accepted: 25th May 2022

THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019:

A CRITICAL STUDY

Deepansh Agarwal
final year, B.A. LL.B. (Hons.) student at Law College Dehradun faculty of Uttaranchal University. The author can be
contacted at ag.deepansh1998@gmail,.com

Prof. Sachin Kumar

Assistant Professor at Law College Dehradun faculty of Uttaranchal University. The co-author can be contacted at
sachinkumar@uttaranchaluniversity.ac.in

ABSTRACT
This study is an assessment of the Transgender Persons (Protection Of Rights) Act, 2019. This Act was passed by the
Government of India in August 5, 2019. This Article explore the history, livelihood of the transgender in the Ancient
times as well as the present scenario of the transgender. The study consider their rights, how they can be treated in the
society. It is an important Article as there is limited information about this act and it also includes the survey of
transgender people of 2011 and the scenario during the lockdown period due to Covid-19 in 2019. The object of the
research were to determine the provisions of the Act, Whether the India is on right track or not? and why the LGBTQ+
community protest over this bill? What are their demands and What measures should be taken by the government. This
research will help the transgender community for the upliftment and benefit in the society.

Keywords :- Transgender, Transgender Persons (Protection Of Rights) Act, 2019, Lgbtq Community, Queer,
Transgender Rights

I. INTRODUCTION
The Transgender persons act was passed with a view to protect the rights of the transgender and for the development of
the transgender in the society as the transgender person face many problems in the society ranging from discrimination,
lack of education facilities, unemployment, lack of medical facilities and so on. The bill was introduced in Lok Sabha,
the lower house of the Parliament on June 19, 2019 and passed on August 5, 2019. On December 5, 2019, the President
signed it, and the act was releasedin the Indian Gazette. It has been in force sincethe 10th of January 2020, following
publication in the Gazette on the same day.It is an act of the Parliament of India. This bill is tabled by the Minister of
social, Justice and Empowerment named as Thaawar Chand Gehlot in the illumination of the pass of the Transgender
Person (Protection of Rights) bill 2018. The bill is all about the recognition of the transgender as an individual with
dignity and also the recognition of identity of the transgender persons. It aims at Prohibition of any kind of
discrimination against the transgender. Transgender are to be treated equally on power with any other individual or any
other citizen. This bill is also introduce various welfare measures for the progression of the transgender people. It also
provides for the setting up of a National Council for transgender persons. Overall the bill helps the transgender
community socially, educationally and economically for the upliftment in the society. The transgender community
demanded the bill from a decade which is also legally enforced by the law. In 2009 The Delhi High court in the case of
(Naz foundation govt. v. NCT OF Delhi, 2009) decriminalized section 377 of Indian penal code which says about the
same sex intercourse. But in the year 2013 The Supreme Court in the case of (Suresh Kumar Koushal, 2013)
overturned the judgement of Delhi HC due to which there was a huge protest by the transgender community. In case of
(National Legal Service Authority, 2014), the supreme court give the right to transgender community that they are to
be recognized as third gender person along with that they have Right to self-identification. Supreme Court also stated
that the community is backward in terms of socially and economically so they should be given reservation. After given
the judgement of Privacy in case of (k.S. Puttaswamy v Union of India, 2017) the Supreme Court revert back his
decission on same-sex intercourse in 2018 on (Navtej Singh Johar V. Union of India, 2018).

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II. WHY THERE WAS A NEED OF THIS BILL

In 2014, the Supreme Court gave an important judgement on transgender in the case of NALSA v U.O.I. In this case it
was the Supreme Court to recognize transgender and said that transgenders play a very important role in the history of
India also added that transgender in India and the Indian sub-continent and in the History of India they are very crucial.
Even in Ancient times, kings used to keep transgenders with his queens and they used to help queens in their work.
From this we can find out that transgenders used to play a very important role, but as the society progressed, they were
boycotted at the time of modernization, they were separated from the society. (Bahuguna & Vijayan, 2018) In view of
all these things, the Supreme court said that they should be given their rights, there should be no discrimination with
them and they should also be given reservation. Now after this judgement of Supreme court, Dravida Munnetra
kazhagam (DMK) party leader Tiruchi siva in 2014 passing a private member bill for the upliftment of transgenders in
the Rajya sabha, namely the Rights of Transgender Persons, 2014. This bill was passed in the Rajya sabha in April 2015
because at that time the majority in the Rajya sabha was of opposition parties so they together passed this bill but
nothing could be done of this bill in Lok Sabha. After this, the Central Government passed the bill in 2016 for
transgender, namely The Transgender Persons (Protection of Rights) Bill, 2016 and when this bill was introduced in the
Lok Sabha, there was a lot of Protest about this bill and this bill was criticized due to which the Lok sabha sent this bill
to the standing committee and it was said that the standing committee should give its suggestion regarding this bill and
submit their report. After this the standing committee presented its report in 2018 and then Lok Sabha passed this bill
after making 27 amendments on 17 December 2018. Even after this, there was a lot of protest about this bill all over
India because there were some provisions in this bill which were not in the interest of transgenders. Apart from this,
whatever suggestions were given by the transgender community or standing committee, were not added by the
government as many transgender do by begging their livelihood, begging was criminalized by the government in this
bill. This bill was passed in the Lok Sabha, yet this bill had lapsed. As there were elections in 2019, due to which the
bill could not be passed in Rajya Sabha. After the formation of NDA government, this bill was reintroduced in 2019,
namely The Transgender Persons (Protection of Rights) Bill 2019.

III. TRANSGENDER IN INDIA

In the context of the History it was the first time in 2011 census when there were three options to determine the sex of
the person namely:- male, female and others. The data of transgender in 2011 census were collected in such a way that
it should cover all the necessary details. According to the census of 2011 there were total 487,803 transgender in India
in which 54,854 was between the age of 0-6. 78,811 belong to the SC while 33,293 belongs to the ST. The literacy rate
of transgender in India was 56.07%. The highest population of transgender were in the state of Uttar Pradesh which is
137,465 and the child between the age of 0-6 were 18,734. There were 26,404 transgender belong to the SC and 639
from ST. The literacy rate of transgender in Uttar Pradesh was 55.80%. In the capital of India i.e. Delhi there were total
4,213 transgender and 311 belongs to child between the age of 0-6. There were 490 transgender belong to the SC and 0
from the ST community. The least number of transgender were found in Lakshadweep there were only 2 transgender
and both belong from the ST community. The literacy rate was 50%.
When there was a lockdown in India in 2019 due to Covid-19, the government had said that they would transfer ₹1500
directly to the accounts of transgenders and would also give them free ration. According to the census of 2011 there are
total 4.8 million transgender in India, yet only 5,711 transgender got money transfer in bank account and 1,229
transgender got free ration it is because “when we asked the transgender community to share their bank details with the
government, it was found that 80% of the transgender people do not have a bank account” said Tinesh Chopade,
advocacy manager at Humsafar Trust, which is an organisation who work for advance health and research for the
LGBTQ+ community. It’s because they didn’t have any documentation.

IV. DEFINITION
According to The Transgender persons (Protection of rights) bill a transgender person is defined as:-
A Person whose gender doesn’t match the gender assigned at the time of birth which means if the gender of a person is
different from that gender which is given him naturally during the birth time is a transgender person. The scope of
transgender includes people having intersex variants, sexual identity and people with political and social identities like
kinnar and hijraall these people are included under the definition of transgender.

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INTERSEX VARIATION
Intersex variation are human who is designed for people who at the time of the delivery reveals a dissimilarity in his or
her Primesex character. So intersex variation can be identified at the time of birth itself that particular person will show
variations in the Primary Sexual Characteristics

V. PROVISIONS OF THE BILL

➢The first provision provides prohibition of any kind of discrimination against the transgender persons. It can be denial
of any service or denial of any treatment or any public service all these type of discrimination can be prohibit by this
bill. It provides for prohibition of any kind of discrimination towards the transgender people and this is in relation to
various head:-

i. Education which means in educational institution that are either funded by or recognized by a government
shall provide inclusive education, sports, educational services etc. It means that if any educational institution is funded
partially or completely or any other educational institution which is recognized by the government that particular
educational institution cannot discriminate a person only because the person is a transgender

ii. Employment opportunities which means government as well as private companies. Those companies or any
establishment that are run by private individuals cannot discriminate transgender in the process of recruitment as well as
in promotion in both the cases transgender person can give equal opportunity as consider to others and regarding
employment this bill is also mends the exact in every organization or in every establishment there should be officer who
will deal with the complaints of the transgender

iii. Health care services, the bill is also providing the health care services to the transgender. It includes
prohibition of health care facilities, prohibition of health care insurance schemes etc to the transgender. They should be
treated on power with others. It will be the responsibility of the government to set up a separate health care center for
transgender people like HIV surveillance centers, sex reassignment surgeries. Sex reassignment surgery center is very
less specially in India. The Government of India will try to establish them.

iv. Public Services, in this sector also discrimination is completely banned which means transgender should have
access to public services with equal opportunity like others.

v. Right to movement which says that transgender person cannot be prohibited for moving around or travelling
around from one place to another and they can be migrated also nothing can be prohibited.

vi. Right to reside, rent or otherwise occupy a Property which means the transgender person will also have the
right to occupy a particular space ,rent or take a property or a residential space for rent and also to reside at a particular
place. The transgender mustpossess the right to reside in their own family circle because the biggest discrimination with
transgenders is that they are thrown out of their homes. There is also a provision in this bill that if a transgender is less
than 18 years of age and his family does not want to keep him in the house, then the government will send him to the
rehabilitation center on the orders of the suitable court of law.

vii. Occupation of a Public Office or a Private Office this is also banned. Any transgender person cannot be
discriminated which means any transgender person can occupy an office either it is public or private.

viii. Access to Government establishment or a Private establishment in this sector also there shall not be any type of
discrimination on this ground

So, basically this bill is providing Provision for prohibiting any kind of discrimination against the transgender person

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 Certificate of Identity- It is a very problematic clause most protest was happened about this. Any transgender
person can take a certificate of identity for that purpose a person will have to file a complaintwith the District
Magistrate. District Magistrate will give the certificate after proving that it is a transgender. In the Application the
gender has to be indicated as the transgender. Revised certificate can also be granted in case any person undergoes with
a surgery that is a medical surgery to change the gender either to male or female so that can also be taken.

 Welfare Measures:- Government has taken a lot of welfare measures for the transgender persons. The
Government focuses upon inclusion and participation. So this bill include banning of any kind of discrimination against
the transgender persons means the transgender persons should be given equal opportunity that means there should be
inclusion and participation all the welfare activities undertaken by the government should focus on these two aspect that
is inclusion and participation for that purpose the government can introduce rehabitational facilities and rescue facilities
and also provide for vocational trainning and skill development, employment opportunity, self-employment
opportunities. The public sector banks can provide loans for undertaking self employment opportunities, running small
business. All these measures can be taken

VI. OFFENCES AND PENALTIES

The offences and penalties for those persons who discriminate or commit any crime against a transgender person are
 Forced labour or bonded labour:- If the transgender persons are compled to do certain work it is an offence
under the law.
 Denial of use of Public Places:- If the transgender persons are denied to use the public places this is also an
offence under the law.
 Removal from houses:- Removal of the transgender persons from the household or the villages is also
considered to be an offence.
 Abuse:- It can be of any kind either it is sexual abuse, physical abuse, verbal abuse, emotional abuse or
economic abuse all these abuse are considered to be an offence under the law.
The penalities of these offences varies from imprisonment of 6 months to 2 years and fine also.

VII. NATIONAL COUNCIL FOR TRANSGENDER PERSON

Composition
oThere shall be a chairperson and the Union Minister for social justice will serve as the chairperson.
o The vice-chairperson who will be the Minister of state for social justice. oThere will be a secretary of the
Ministry of Social justice who shall also be a member of the NCT.
o There shall be representatives from the various Ministry including Health Ministry, Home Affairs Ministry and
Human Resources Development Ministry.
o The other members of the NCT includes representative from NITI Aayog and National Human Rights
Commission.
Apart from these members the State Government shall also be given representation in the NCT along with that there
shall be 5 persons from the transgender community and 5 persons from NGO’s

VIII. FUNCTIONS OF NATIONAL COUNCIL FOR TRANSGENDER PERSON

 To advice the Central Government regarding any welfare measures or any policy or any guideline to be issued
for the transgender and for the welfare if the transgender
 To advice the Central Government that what is the impact of any legislature or policy towards the transgender
community.

IX. ROLE OF NATIONAL COUNCIL FOR TRANSGENDER PERSON

• The advisory role of NCT
• The monitoring role of the NCT which is NCT will have to monitor all the impact of legislation made by the
Central Government. Whatever the steps should be taken by the Central Government the NCT will have to monitor and
give recommendations to the government.

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• Role of grievance redressal NCT will also be responsible for addressing the grievances of the transgender
community.

X. WHETHER INDIA IS ON RIGHT TRACK OR NOT?

India is going towards a greater inclusion by bringing such legislation in our country and we are accepting transgender
people in the society. These recent developmentwill give transgender persons the space to built the life they desire for
themselves because it is better when there was no law but now at leastIndia has come up with legislation accepting
transgender people in the society so that they can built their own space to work and fulfill their own desires. The
transgender community would not have to hide their identity because of the social pressure and discrimination usually
they use to hide their identity to be a part of the society and it was very difficult to get education and jobs but now the
country is on the right track. This act plays an important role for building an inclusive, accessible and diverse India.
However it is a very small step towards the right direction as it is well known despite the existing of Robust laws
ground level reality are different and they take time to change.

XI. WHY THE LGBTQ+ COMMUNITY CRITICISED THE BILL

The LGBTQ+ community says that this bill is very different from the 2016 bill, many provision have been changed
and some clauses are problematic. The LGBTQ+ Community appeal the President not to sign this bill
 The transgender community states that the intention of the government was fine but the practical impact of the
bill was very much negative it is because the rights of the transgender was not given completely at the mercy of a law.
 The protest was against the screening committee because the transgender will have to go to the bureaucrats to
get the id card they will judge their gender by only seeing them which is wrong.
 The another issues was related with the certificate of transgender because the certificate will be available from
the District magistrate which will open the gate for humiliation and harassment of the community as no male or female
have granted such certificate so the transgender persons was in a view that why there was a need to show the certificate
for any organization. They simply mention that they themselves will say they belong to the transgender community.
 The Supreme court in 2014 on National legal service authority case administer the government to give
reservation to the transgender people but there should be no provision of reservation in the transgender persons
(protection of rights) bill,2019
 If a transgender wants id card as a man or woman then sex reassignment surgery is necessary. So, the
community says that it should be one’s own choice and not impose by the government.
 There is a discrimination in this bill that if a cis gender is rapped or sexually assault then the punishment is up
to 7 years for it but if a transgender is rapped than the punishment is only for 2 years.
 There is a provision in the criminal code, that if the punishment of any crime is given less than 3 years in the
IPC, then it is a bailable offence. So this is also wrong, it will get bail easily
 Criminalization of transgender people for begging.
 If someone is transgender, he has been thrown out of the house, then he will have to stay in the rehabilitation
center, so why can’t he live independently. So if this is being done, it means the government’s target is to modify
delinquent behavior. The LGBTQ+ community demand to remove this clause.
 The transgender people also said that the bill which has been passed has not taken their advice, it has been
passed directly, by assuming that they suffer from these problems.
 The bill has also not mentioned many rights like marriage right, property rights, social security or pension
simply it means the transgender community deprives from their basic rights.

XII. SUGGESTIONS
• The government should talk to the transgender peoples and understand their problem and then find a solution
• Amendments should be made in this act which are problematic for the welfare and upliftment of the
transgender people in the society.
• In the provision of rape, the punishment should not be of 2 years but of 7 years, which is given in the IPC for
cis gender.

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• The provision of begging should be decriminalized and even if it would be criminalizing then criminalize it
for everyone and not just for transgender.
• Transgender people do not have the knowledge of many things, so the government should take some
awareness measure like awareness camps for the community
• The government should give reservation to transgender people because the community is in minority and the
other reason is they are also the weaker section of the society.
• It should not be necessary that transgender people have been in rehabilitation center, they can stay where they
want independent.
• Government should focus on the education of the transgender people and schools should be made for them.
Otherwise government should make such provisions so that transgender can study together in co-head school and no
one can harass and tease them.
• For transgender peoples, government should make laws relating to marriage, divorce, inherit the property and
adoption so that they are provided with their basic rights.
• Government should give job opportunities to the transgender peoples.

XIII. CONCLUSION
Hence, it can be concluded that transgender plays a vital role since ancient time. Despite this, the society boycotted and
critizes them. This legislation is the first towards mainstreaming the transgender community and the Indian government
has taken an iconic step towards ensuring an equal and unbiased society. The Transgender Persons (Protection of
Rights) Act, 2019 was passed with the intention to uplift them in the field of social, economic and education and also
for the benefit of the Transgender people. This bill had ensured the transgender people to enjoy their life with dignity
and without any discrimination and it also gurantees a basic human right that is Right to identify as a member of our
community.The legislation, though, has been criticised one is as a result ofdefining transgender another reason is the
court orderedlegalizing the certification process is also required, sex reassignment surgery for gender transition
certification, as well as thecrimes and sanctions for sexual harassmentagainst transgender people which is only for 2
years was unacceptable by the transgender community, however they are still negotiating with the government in
company with there is no section on misuse of transgender id certificate despite that in order to get married, parenthood,
employment, school accommodation, pension and other issues, the transgender community still has a long road ahead to
go. At every turn, they must oppose the prevailing civilization. It is not just the legislation which should be dealt with
we as a whole need to really impact our point of view towards them and acknowledge them. LGBTQ+ community as a
whole are still major concern and a part of society treat them well and with equality. They also want respect and love as
other people get. They also have the right to live their life with dignity. Those people did not become transgender by
their mind, they became transgender by the will of God. So with government and civil society organizationswe all have
to work round the clock and there is a hope that there will be a movement from strength to strength and now it remains
upto Indian societyto take this vision from the government to finally into its implementation.

Bibliography
1. (n.d.). Retrieved from latestlaws.com: https://www.latestlaws.com/bare-acts/central-acts-rules/human-rights-
laws/the-transgender-persons-protection-of-rights-bill-2019/DNA INDIA.
2. Agarwal, D. (n.d.). Retrieved from https://www.indiacode.nic.in/bitstream/123456789/13091/1/a2019-40.pdf
3. Bahuguna, R., & Vijayan, A. (2018). The Dichotomy of Free Consent and Sexual Orientation in India: A
Critical Appraisal. International Journal of Research and Analytical Reviews , 5 (3), 653-658.
4. k.S. Puttaswamy v Union of India (Supreme Court 2017).
5. kiran, A. (2020). All About Transgender Persons (Protection of Rights) Act, 2019. LatestLaws.com .
6. Kiran, A. (2020). All About Transgender Persons (Protection of Rights) Act, 2019. LatestLaws.com.
7. kiran, A. (2020). All About TransgenderPersons (Protection of Rights) Act, 2019. LatestLaws.com .
8. National Legal Service Authority (Supreme Court 2014).
9. Navtej Singh Johar V. Union of India (Supreme Court 2018).
10. Naz foundation govt. v. NCT OF Delhi (Delhi High Court 2009).
11. Suresh Kumar Koushal (Supreme Court 2013).
12. SURESH KUMAR KOUSHAL (SUPREME COURT 2013).

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13. (2011). THE CENSUS OF INDIA.

14. (2019). THE DNA. DNA.
15. The Hindu. (n.d.).
16. (2016). THE HINDU. NEW DELHI: THE HINDU.
17. THE HINDU. (2016, JUNE 24). THE HINDU. Retrieved APRIL 2, 2022, from THE HINDU:
https://www.thehindu.com/news/national//article60434649.ece

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