Indian Journal of Law and Legal Research Volume II Issue I | ISSN: 2582 8878

TRANSGENDER LEGISLATION: NOBLE INTENT,

INEFFECTUAL CONTENT

Aditi Behura, National Law University, Delhi

ABSTRACT
Multiple Bills seeking to protect the rights of transgender individuals have been
introduced since the judgment was passed in the case NALSA v. Union of India.
However, these Bills, including the Transgender Persons (Protection of Rights)
Act, 2019, which has been passed by the Lok Sabha, have failed to incorporate
many progressive provisions laid down in this judgment. Amongst other issues,
the 2019 Act has failed to acknowledge the right of a transgender individual to
self-identification of gender, and has provided a discriminatorily lenient
punishment for the sexual abuse of a transgender individual in comparison to that
of a cis-gendered woman as provided by Section 376 of the Indian Penal Code.
Furthermore, the Act has failed to provide for reservation in various fields for the
transgender community. The Act has also included a provision which compels a
transgender child to live with their parents or immediate family unless an order is
attained from a competent court, upon which the child is to be placed in
rehabilitation centre. This paper has highlighted how the Act is not only
discriminatory in nature, but also how the very community this Act seeks to
protect was excluded from the discussion on their welfare. Further, this paper has
put forth various arguments as to why the provisions which were not included in
the Act are, in fact, essential for preventing the violation of their rights as well as
for protecting their dignity.

Keywords: Transgender rights, self-determination, violation of rights, gender

inequality, reservation, third gender, sexual abuse

1
Indian Journal of Law and Legal Research Volume II Issue I | ISSN: 2582 8878

I. INTRODUCTION
The Transgender Persons (Protection of Rights) Act, 2019, was introduced in the Lok Sabha
with the objective of providing for the protection of rights as well as welfare of transgender
individuals, in addition to matters which are connected and incidental to them.1 This Act was
introduced after the prior Bill on transgender rights, introduced in the Parliament in 2016 and
passed by the Lok Sabha in 2018, lapsed before coming into enactment. The 2016 Bill, similar
to the 2019 Act, faced severe criticism from the Opposition and the transgender community on
grounds of violation of the rights of these individuals.2

Previous to these Bills, a private member’s Bill introduced in 2014 with the objective of
providing and protecting the rights of the transgender community, had been passed by the Rajya
Sabha in 2015.3 However, the 2014 Bill, which contained provisions such as reservations in
employment, unemployment allowances as well as protection against discrimination in the
place of work, was never tabled in the Lok Sabha.4 This Bill stands as the first attempt at
framing legislation embodying the principles laid down in the case NALSA v. Union of India5,
which had many progressive standards in relation to the transgender community.

This judgment contained various principles that were appreciated by activists as well as the
transgender community. It laid down the right to self-determination of gender of transgender
individuals. It also accorded reservation to them in cases of admission into educational
institutions and for public appointments. It is important to note that such provisions laid down
by the judgment were never incorporated in any Bill introduced subsequent to the 2014 Bill,
including the 2019 Act, which is at the center of the current discussion.

II. SELF-DETERMINATION: AN ESSENTIAL INALIENABLE RIGHT

In NALSA v. Union of India, Article 21 of the Constitution was given pre-eminence in
establishing that self-determination of one’s gender is essential in protecting the dignity of a

1
The Transgender Persons (Protection of Rights) Act 2020, Preamble.
2
Manasi Bhushan, ‘Analysis on Transgender Persons (Protection of Rights) Bill, 2016’
<https://www.indialawjournal.org/analysis-on-transgender-persons.php> accessed 25 January 2020
3
J. Gandhi & S.K. Ramachandran, ‘RS passes Bill on transgender rights’ (The Hindu, 24 April 2014)
<https://www.thehindu.com/news/national/rajya-sabha-passes-private-bill-on-transgenders/article7138056.ece>
accessed 25 January 2020.
4
A. Chakrabarti, ‘You Shall Not Pass: Why Hundreds of Transgenders Gathered in Delhi to Protest the Bill’
(News18, 29 December 2018) <https://www.news18.com/news/buzz/you-shall-not-pass-why-hundreds-of-
transgenders-gathered-in-delhi-to-protest-the-bill-1986111.html> accessed 25 January 2020.
5
NALSA v. Union of India AIR 2014 SC 1863.

2
Indian Journal of Law and Legal Research Volume II Issue I | ISSN: 2582 8878

person. The personal autonomy of an individual has been guaranteed by Article 21. The
Hon’ble Supreme Court referred to the case of Anuj Garg v. Hotel Association of India6 in
affirming that both negative and positive rights are included in the consideration of the personal
autonomy of an individual. The negative rights include the rights of a person not to be subjected
to intrusion by others, and the positive rights include the right of an individual for expressing
themselves and make decisions regarding their lives.7 Self-determination falls within the realms
of personal autonomy and the right of an individual to be able to express themselves.8

Sections 5 and 6 of the 2019 Act are in direct contradiction of the judgment laid down in NALSA
v. Union of India. According to Section 5, it is required for an application to be made for
certification of identity to the concerned District Magistrate by the transgender person. Further,
Section 6 provides that the certificate of identity shall be issued by the District Magistrate to
the transgender person after the completion of a procedure determining the gender of the
individual as transgender.9 It has further been laid down that such a certificate will serve as a
proof of the identity of the individual as a transgender person.10

These provisions of the Act are not only in contradiction to the NALSA v. Union of India
judgment, but also violate many international standards for legally recognizing an individual’s
gender. This issue had been addressed by the World Professional Association for Transgender
Health in 2017 with the introduction of the Transgender Persons (Protection of Rights) Bill,
2016. This Bill contained similar provisions to the one introduced in 2019, in relation to the
provision of applying to the District Magistrate for the issuance of a certificate of identity as a
transgender individual.11

In an open letter addressed to the Government of India on the 2016 Bill, WPATH emphasized
the importance of self-determination of one’s identity, by highlighting the fact that creating
barriers for recognizing a transgender individual’s gender is detrimental to their physical as
well as mental health. It was further highlighted that a range of gender identities is recognized
by WPATH, and limiting the same to just male or female is not sufficient for reflecting all

6
Anuj Garg v. Hotel Association of India (2008) 3 SCC 1.
7
ibid.
8
NALSA (n 5).
9
Transgender Persons (Protection of Rights) Act 2019, s 5(1).
10
Transgender Persons (Protection of Rights) Act 2019, s 5(3).
11
Transgender Persons (Protection of Rights) Bill 2016, s 5.

3
Indian Journal of Law and Legal Research Volume II Issue I | ISSN: 2582 8878

gender identities.12 The same as been echoed by the World Medical Association in their
statement on transgender people, which carried the recommendation that an individual’s right
to self-determination of gender must be upheld.13

It is also important to take note of the Yogyakarta principles, which were also mentioned in the
NALSA v. Union of India judgment. It lays down a number of principles which provide guidance
of the application of international human rights law which relates to gender identity as well as
sexual orientation.14 Principle 3 of the Yogyakarta principles provides for the right to
recognition before the law. According to this principle, individuals having different sexual
orientations and gender identities have a right to be recognized before the law, and that their
self-determination of the same is fundamental to their individual identity. It has further laid
down that invocation of any status (such as marriage or parenthood) cannot be done as a way
of prevention of recognition of such person before the law.15

This issue was addressed by M.V. Rajeev Gowda of the Indian National Congress party in the
parliamentary debate on the 2019 Act, who argued that the Bill is inconsistent with the NALSA
judgment, which conferred upon transgender persons the right to self-identification, as opposed
to the Bill which provided for a process of issuance of a certificate for determination of gender.
Jaya Bachchan, member of the Samajwadi Party, stated that there was a lack of sensitivity in
the Act, and that discrimination and humiliation of the transgender individual stems out of this
process of certification.16

III. A HISTORY OF UNEMPATHETIC LEGISLATION

Section 18(d)17 of the Act provides for punishment for the “sexual abuse” of a transgender
individual. However, it is important to note that the acts which constitute “sexual abuse” have
not been laid down in this provision of the Act. This forms one aspect of the Act which makes

12
World Professional Association for Transgender Health, ‘Global Impact’
<https://www.wpath.org/newsroom/global-impact> accessed 25 January 2020.
13
World Medical Association, ‘WMA Statement on Transgender People’ <https://www.wma.net/policies-
post/wma-statement-on-transgender-people/> accessed 25 January 2020.
14
Yogyakrta Principles, ‘About the Yogyakarta Principles’ < http://yogyakartaprinciples.org/principles-en/about-
the-yogyakarta-principles> accessed 25 January 2020.
15
Yogyakarta Principles,’ Principle 3’ <http://yogyakartaprinciples.org/principle-3/> accessed 25 January 2020.
16
‘Parliament proceedings: Rajya Sabha sees demand for rethink of trans rights Bill’ (The Hindu, 20 November
2020) <https://www.thehindu.com/news/national/parliament-proceedings-rajya-sabha-sees-demand-for-rethink-
of-trans-rights-bill/article30030085.ece> accessed 25 January 2020.
17
Transgender Persons (Protection of Rights) Act 2019, s 18(d).

4
Indian Journal of Law and Legal Research Volume II Issue I | ISSN: 2582 8878

it discriminatory in comparison to Section 375 of the Indian Penal Code, which entails
provisions for punishing sexual offences against a woman, wherein the acts and essential
ingredients which constitute these sexual offences have been defined.

The offence of the rape against a woman has been defined under Section 375 of the Indian
Penal Code.18 This provision provides that to constitute the offence of rape, the following
essential ingredients must be fulfilled: (i) sexual intercourse by a man with a woman as laid
down from Section 375(a) to (d); (ii) this sexual intercourse must satisfy any of the following
conditions- (a) against her will; (b) without her consent; (c) with consent which was obtained
by instilling in her the threat of death or hurt of her or of a person in whom her interest lies; (d)
consent which was obtained under the false impression that the man is one to whom she is
lawfully married; (e) consent given by unsoundness of mind or intoxication or under the
influence of other unwholesome substances; (f) the woman being under the age of eighteen
years, irrespective of whether her consent has been obtained or not; (g) the woman not being
able to communicate her consent.19 It can be clearly established that the provisions defining
sexual offences against women as laid down in Section 375 of the Indian Penal Code are much
more elaborate and comprehensive as compared to what has been provided under Section 18(d)
of the Act.

Another discriminatory aspect of the Act in terms of the sexual abuse of transgenders is the
punishment provided for the same. According to Section 18, the sexual abuse of a transgender
is punishable with imprisonment for a term not less than 6 months but not exceeding 2 years
with fine.20 It is important to compare this provision with Section 376 of the Indian Penal Code,
which provides for the punishment for rape of a woman for a term not less than 10 years and
extending to life imprisonment, which means ‘imprisonment for the remainder of his natural
life’.21

In the case Shri Bodhisattwa Gautam v. Ms. Subhra Chakraborty22, it was reiterated that the
right to life, which has been enshrined in Article 21 of the Constitution, refers to more than just
animal existence, and is inclusive of an individual’s right to live with human dignity. The

18
The Indian Penal Code 1960, s 375.
19
P.S. Atchuthen Pillai, PSA Pillai’s Criminal Law (13th edn, 2018) 814-815.
20
Transgender Persons (Protection of Rights) Act 2019, s 18(d).
21
The Indian Penal Code 1960, s 376.
22
Shri Bodhisattwa Gautam v. Ms. Subhra Chakraborty 1996 AIR 922.

5
Indian Journal of Law and Legal Research Volume II Issue I | ISSN: 2582 8878

judgment further refers to the plight of women in our country, who are more often than not
disadvantaged in terms of having to overcome many social obstacles. It was noted that women
have the right to be respected, and the violation of their dignity is condemned, on account of
their right to life and liberty.23 The preceding statement begs the question- do transgenders have
a lesser right to life and liberty under Article 21 of the Constitution? Is their right against
violation not as vital and uncompromisable?

Moreover, the discrepancies in the punishments for the sexual abuse of women and that of
transgenders it also violative of Article 14 of the Constitution. The NALSA judgment has
already established that transgenders have a right to equal protection of law. When there are
such gaping discrepancies between the punishment laid out for the violation of the person of a
woman and that of a transgender individual, the right to equality before law is contravened with
respect to transgender individuals.

A study conducted across 17 states on 60,000 transgenders by the National Institute of

Epidemiology revealed that transgender individuals are discriminated against and are subjected
to violence which is often sexual in nature. The study also revealed that the majority of
discrimination and violence against transgender individuals can be attributed to the police, who
have been found in cases to have subjected transgenders to assault and gangrapes in police
stations.24 Taking the dismal plight of the third gender into consideration, is it not important to
protect their right to live with dignity?

In 2013, a report by an Expert Committee on the issues confronting transgender persons was
released, based on a meeting which was organized by the Ministry of Social Justice &
Empowerment. In this meeting, many issues concerning the transgender community were
discussed, and these issues included discrimination against transgender individuals, public
health care and other similar issues. The Expert Committee was formed by the Government of
India with the purpose of conducting a study of these problems and recommend appropriate
measures to improve the conditions of the transgender community.25

23
ibid.
24
‘The plight of transgenders’ (The Pioneer, 31 May 2020) <https://www.dailypioneer.com/2018/columnists/the-
plight-of-transgenders.html> accessed 25 January 2020.
25
Ministry of Social Justice & Empowerment, Government of India ‘Report of the Expert Committee on the Issues
relating to Transgender Persons’ <http://socialjustice.nic.in/writereaddata/UploadFile/Binder2.pdf> accessed 25
January 2020.

6
Indian Journal of Law and Legal Research Volume II Issue I | ISSN: 2582 8878

Recommendations received as inputs to the aforementioned report from Jindal Global Law
School includes one that suggested that sexual harassment mechanisms should be made gender
neutral, and further, that recognition of a separate offense should be given to domestic violence
based on gender.26 A bare reading of the Bill reveals that such recommendations have not been
taken into consideration, and that in an Act regarding transgenders, the interests of the
community, which it is supposed to address and advocate, have been given scant attention.

IV. RESERVATION: A TRANSFORMATIVE INITIATIVE FOR EQUITY

Another dissent faced by the Act is the failure to provide for reservations in the areas of
education and employment, which is another aspect of the Act that is not in agreement with the
NALSA judgment. The Hon’ble Court had established that transgender individuals belong to
the socially and educationally backward classes (SEBC) of citizens, and therefore, must also
have the right to access the benefits available to the SEBC. Further, the Court asserted that it is
important for transgenders to be guaranteed under Article 15(4), the special provisions required
to be made for the SEBC, calling for reservation for transgenders.

However, a twofold argument against the inclusion of transgender individuals within the scope
of SEBCs have been put forth by Sakshi Parashar in her article ‘Inclusion of Transgender
Community Within Socially and Educationally Backward Classes: Examining the Deeper
Concerns’ . The first argument questions the scope of the powers of the Supreme Court to bring
a community within the purview of the SEBCs. It is important to emphasize that the powers
under Article 15(4) are entrusted with the State, and the same has also been reiterated by the
Supreme Court on multiple occasions.27 In M.R. Balaji v. State of Mysore28, it was highlighted
by the Supreme Court that the process of determining which classes shall be brought within the
purview of socially backward classes involves many sociological, social and economic
considerations, and the same is the duty of the State under Article 15(4).29 However, it is
important to note that this argument remains theoretical as recommendations have been made
by the National Commission for Backward Classes to add the transgender community in the

26
ibid 23.
27
Sakshi Parashar, ‘Inclusion of Transgender Community Within Socially and Educationally Backward Classes:
Examining the Deeper Concerns’ (2017) 2 Indian Law Institute Law Review 105, 108.
28
M.R. Balaji v. State of Mysore 1963 AIR SC 649.
29
ibid.

7
Indian Journal of Law and Legal Research Volume II Issue I | ISSN: 2582 8878

SEBCs.30

In the second argument, the constitutional validity of including the transgender community
within the SEBCs has been questioned. This argument has two parts- (i) SEBCs includes classes
of individuals that are socially and educationally backward and transgenders cannot fall within
the category of “class” on the basis of gender, because “class” reflects the economic state of
groups in a society; (ii) Article 15(4) is gender neutral and it is constitutionally questionable to
afford reservation on the basis of gender.31

This paper argues that if reservation under the SEBCs cannot be afforded to the transgender
community on the basis of gender alone, it can be afforded to them due to their poor socio-
economic conditions resulting from the discrimination faced by them due to their gender. A
field survey conducted by the National Human Rights Commission in a number of districts in
Uttar Pradesh and Delhi in 2017, reported that the percentage of transgender individuals having
employment is as low as 6%, restricted only to NGOs or the private sector.32

Furthermore, it is the informal sector in which majority of the transgender community is

involved. According to this field survey, no transgender individual is employed in the
government sector. Approximately 24.44% of the transgender community in these districts are
involved in badhai, which refers to blessings, singing and dancing, 4.56% are engaged in sex
work, and 10.44% are beggars. Approximately 13.11% of them are vendors selling food items,
flowers, clothes, fruits, vegetables and so on, and 4.56% take up miscellaneous work, such as
working as domestic help.33

This field survey has also reported the monthly income of the transgender community.
Approximately 3.8% of this community earns an income of below Rs 5000, 22.35% earns
between Rs. 50001- Rs. 75000, 24.46% earns between Rs. 7501- Rs. 10000 and the monthly
income of about 26.35% of the community lies between Rs. 10001- Rs. 15000. 12.25% earns
a monthly income between Rs. 15001-Rs. 20000, 3.45% earn between Rs. 20001-Rs. 25000

30
National Commission for Backward Classes, Government of India, ‘Annual Report 2014-2015’
<http://www.ncbc.nic.in/Writereaddata/AR%202014-
15%20English%20RIDKPandey635872590642880226.pdf> accessed 25 January 2020.
31
Parashar (n 27) 108-109.
32
National Human Rights Commission, Government of India, ‘Study on Human Rights of Transgender as a Third
Gender’ <https://nhrc.nic.in/sites/default/files/Study_HR_transgender_03082018.pdf> accessed 25 January 2020.
33
ibid.

8
Indian Journal of Law and Legal Research Volume II Issue I | ISSN: 2582 8878

and 1.11% earn more than Rs. 25000. It is important to highlight that the level of income earned
by transgender individuals is extremely low in comparison to other segments, thereby leading
to the denial of their right to have a decent standard of living.34

In another survey conducted in 2016 by State Literacy Mission under the Kerala State
Government on approximately 918 transgender individuals, it was revealed that the income of
nearly half of the group on which the survey was conducted was less than Rs. 1000, and almost
20.35% were facing unemployment. Furthermore, nearly 14% of this group was either illiterate
or had received education only till the 7th grade.35

The transgender community has been deprived of adequate education as well as employment
opportunities, a disadvantage arising as a result of their gender. The consequences of this
deprivation are distressful, evident from their monthly income pattern and the fact that they are
not employed in the government sector. The economic conditions of the transgender
community are dismal, and it is for this crying need that it is essential to afford reservation to
them.

V. FILIAL CONNECTIONS OR SHACKLES?

Section 12 of the Act provides that the only way a transgender child can be separated from their
parent or immediate family members can be on the basis of an order of a competent court. It
has further been provided that on the inability of a parent or a member of the immediate family
to take care of the child, the child shall be placed in a rehabilitation centre after appropriate
direction by a competent court. Section 2(c) of the Bill has defined the term “family” as “a
group of people related by blood or marriage or by adoption made in accordance with law.”.

In the same field survey referred to in the previous section, it was highlighted that 71% of the
respondents in Delhi and 77% in Uttar Pradesh were denied support from their families as well
as inheritance of family property and assets.36 A transgender child is not accepted by their
families due to the prevailing social norms regarding gender. They may be threatened, scolded,
or even assaulted for behaving in a manner that goes against such norms. This results in the

34
ibid 32.
35
Chakrabarti (n 4).
36
National Human Rights Commission (n 32) 42.

9
Indian Journal of Law and Legal Research Volume II Issue I | ISSN: 2582 8878

getting alienated from their family eventually absconding to join transgender communities.37

The Act has failed to acknowledge two glaring issues- one, considering the support, or lack
thereof, transgender children get from their family, it is unreasonable to expect them to continue
living with their family unless on the attainment of an order of a competent court; two, placing
them in rehabilitation centres is a direct attack on the existence of transgender communities and
the social structure that exists therein. Taking into consideration the violence and
discrimination faced by transgender individuals, the Act has not laid down how exactly they
would be made adapt to their lives in rehabilitation centres, and how a safe, comfortable space
would be created for them.

VI. CONCLUSION
This paper has highlighted the discrimination faced by the transgender community, even in a
legislation that was introduced for protecting their rights. It is important to note that even
though the judgment laid down in NALSA v. Union of India is considered progressive and
essential in protecting the rights of this community, the principles established in this judgment
have been ignored in all legislations introduced for the welfare of transgenders since judgment
was passed.

The right to self-determination of one’s gender is a right that has been recognized by
international forums as well as the NALSA judgment. Despite this, the Act has failed to protect
this right by requiring transgender individuals to apply for certification of identity to the District
Magistrate and requiring that this certificate will afford the proof required to establish one’s
gender. Although the issue was also addressed during the parliamentary debate around the
various Bills, no changes were introduced to remedy the same.

Not only has the Act undermined the right of transgender individuals to self-identification, it
has also discriminated against them by providing a much more lenient punishment in cases of
their sexual abuse, as compared to that of cis-gendered women. The Act has failed to provide
as to what shall constitute sexual abuse of transgenders as opposed to the clear definition of the

37
United Nations Development Programme, India, ‘Hijras/Transgender Women in India: HIV, Human Rights and
Social Exclusion’
<https://www.undp.org/content/dam/india/docs/hijras_transgender_in_india_hiv_human_rights_and_social_excl
usion.pdf> accessed 25 January 2020.

10
Indian Journal of Law and Legal Research Volume II Issue I | ISSN: 2582 8878

same for cis-gendered women in Section 375 of the Indian Penal Code. This is a stark violation
of Article 14, which provides for the right to equal protection of law.

Further, the Act has also failed to provide for the reservation in various fields for these
individuals. It has already been laid down by the NALSA judgment that transgender individuals
belong to the SEBC of classes, and that it is essential that reservation must be afforded to them.
It has been proved that this community has been deprived of opportunities in terms of education
as well as employment. This paper argues that reservation can and must be afforded to
transgender individuals due to their poor economic condition, which is a result of the
discrimination faced by them due to their gender. The paper has further quoted statistics,
underlining the low levels of income of individuals belonging to this community, as well as the
low percentage of this community being employed in various sectors, especially the
government sector.

What further provides to strengthen the contention that the very community for which this Act
has been created was excluded from the discussion, is the inclusion of a provision which
requires transgender children to stay with their parents or immediate family, unless an order of
a competent court is attained, or be placed in rehabilitation centres. The Act has failed to
acknowledge the very existence of discrimination and violence within the families of
transgender persons, and has also failed to provide any assurances as to how exactly a
community that has been discriminated against for decades will be able to survive in
rehabilitation centres.

It can, therefore, be concluded that not unlike its precedents, the Transgender Persons
(Protection of Rights) Act, 2019, has not taken into consideration the voice and the conditions
of the very persons whose rights the Act claims to protect. Not only is the Act discriminatory,
it has also failed to incorporate many principles in relation to this community, which have been
laid down in international provisions and the NALSA judgment.

11