PROGRESSIVE OR REGRESSIVE? AN ANALYSIS OF THE
TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019
INTRODUCTION
The Transgender community has battled exclusion and ubiquitous aversion from all sectors of the society
for a very long time. Furthermore, the attempts of the Government to address transgender rights in India
have been a blue flunk. The Supreme Court in National Legal Services Authority v. the Union of India
1
(hereinafter referred to as the NALSA case), observed that the transgender community has a right to be
treated as ‘third gender’. It was held that a person’s gender identity is an integral part of one’s personality
and is one of the most basic aspects of dignity and freedom of an individual. Certain Guidelines were issued
by the Apex Court in this Judgement which were to be followed by the Central Government to ensure
protection of the members of the transgender community. Since the NALSA Judgement, the past five years
have been depressing.
Fast forward to 2019, the Transgender Persons (Protection of Rights) Bill, 2019 has been passed by the
Legislature after many amendments to the previous Bill. This Bill is nothing but a State-sanctioned
discrimination under the guise of protection. The Bill was passed by the Lok Sabha on August 5, 2019 and
the transgender community termed the day as ‘Gender Justice Murder Day’.
2
The Bill has been signed by
the President on 5th December, 2019 and it was brought into effect from 10th January onwards vide a
notification on the Gazette. This Article aims in establishing how the Act is in conflict with and in direct
violation of the NALSA Judgement delivered by the Supreme Court, also focusing on the highlights of the
Bill.
HIGHLIGHTS AND SHORTCOMINGS OF THE BILL
3
Firstly, the definition of a transgender person in the Bill is unsatisfactory. Section 2 (k) defines a transgender
person as one whose gender does not match the gender assigned at birth and includes transmen and trans-
women. Persons with intersex variations are also included within the scope of the definition. Though a
separate definition for intersex persons has been incorporated, it has been done purely to satisfy the
international groups as in the next line it has been included with the definition for ‘transgender person’.
This inclusion is controversial as an intersexual person may or may not identify themselves as transgender.
4
Thus, the Act is unsympathetic towards the intersex community and its issues.
1
National Legal Services Authority v. Union of India, (2014) 5 S.C.C. 438.
2
https://www.downtoearth.org.in/blog/governance/why-is-transgender-community-unhappy-with-trans-persons-bill--67158
3
https://www.jatinverma.org/a-critical-analysis-of-the-transgender-persons-bill
4
https://lgbtq.unc.edu/resources/exploring-identities/intersex
