Transgender Persons (Protection of Rights) Act, 2019

The Transgender Persons (Protection of Rights) Act, 2019 is an act of the Parliament of India with the objective to provide for protection of rights of transgender persons, their welfare, and other related matters. The act was introduced in the Lok Sabha, the lower house of the Parliament, on 19 July 2019 by the Minister of Social Justice and Empowerment, Thawar Chand Gehlot, in light of the lapse of the Transgender Persons (Protection of Rights) Bill, 2018. The 2019 act and the immediately preceding 2018 bill, were both preceded by a 2016 version. They were met with protests and criticism by transgender persons, lawyers, and activists in India. The 2016 bill was sent to a standing committee which submitted its report in July 2017. Following this, the Lok Sabha tabled and passed a newer version of the bill in December 2018. However, it did not incorporate many of the committee's recommendations. Although members of the opposition criticised the 2019 act and assured transgender persons of not voting in favour of it, it was passed by the Lok Sabha on 5 August 2019 and by the Rajya Sabha, the upper house of the Parliament, on 26 November 2019. The president assented to it on 5 December 2019, upon which the act was notified in the Gazette of India. It was brought into effect from 10 January 2020 onwards vide a notification in the Gazette on the same day.

Not to be confused with Rights of Transgender Persons Bill, 2014.

The Transgender Persons (Protection of Rights) Act, 2019
Parliament of India
CitationAct No. 40 of 2019
Territorial extentRepublic of India
Enacted byParliament of India
Passed5 August 2019
Passed26 November 2019
Assented to5 December 2019
Signed5 December 2019
Commenced10 January 2020
Legislative history
BillThe Transgender Persons (Protection of Rights) Bill, 2019
Bill citationBill No. 169 of 2019
Bill published on19 July 2019
Introduced byMinister for Social Justice and Empowerment
First reading5 August 2019
Committee report43rd Report by Standing Committee on Social Justice and Empowerment, July 2017
Related legislation
The Transgender Persons (Protection of Rights) Bill, 2018
The Transgender Persons (Protection of Rights) Bill, 2016
The Rights of Transgender Persons Bill, 2014
Status: In force

Following protests by the queer community against the 2016 and 2018 bills, the 2019 act has done away with few of the severely criticised provisions of the 2018 bill, such as criminalisation of begging and the establishment of a district screening committee to process applications for issuance of transgender person certificates. However, it fails to incorporate yet other principles in line with the Supreme Court judgment in National Legal Services Authority v. Union of India (NALSA v. UOI) in 2014, such as the right of transgender persons to self-perceived gender identity without undergoing sex reassignment surgery, and mandatory reservations in jobs and educational institutions. The act has also been criticised for the lesser punishment for crimes against transgender persons compared with punishment for crimes against cisgender persons. On 27 January 2020, the Supreme Court issued a notice to the central government in a petition filed challenging the constitutionality of the 2019 legislation.

In January 2014, while judicial pronouncement in the NALSA petition was pending, the ministry had published an Expert Committee Report on issues relating to transgender persons, after consultations with transgender persons. Tiruchi Siva, of the Dravida Munnetra Kazhagam party, had introduced the Rights of Transgender Persons Bill in 2014, in the Rajya Sabha, which was passed by the house in 2015. The 2014 bill contains provisions progressive to those in the bills introduced in between 2016 and 2019, but has been pending in the Lok Sabha since 2015. Prior to the 2019 general elections, parties such as the Indian National Congress and Communist Party of India (Marxist) had promised in their respective electoral manifestoes to, respectively, withdraw the 2018 bill — while introducing a new one consulting members of the queer community — and pass the 2014 bill.

History and background
Hijras in eastern Bengal, circa 1860
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Overview
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In 2014, the Supreme Court of India delivered its judgment in National Legal Services Authority v. Union of India (also known as, NALSA v. UOI), in which it recognised the rights of the transgender persons in India and laid down a series of measures for securing transgender persons' rights by mandating prohibition of discrimination, recommending the creation of welfare policies and reservations for transgender persons in educational institutions and jobs.[1] The judgment upheld the right of a transgender person to self-perceived gender identity, guaranteed by the Constitution of India, in the absence of sex reassignment surgery.[2] The 2014 judicial mandate stands backed by the judgments of the Supreme Court in Justice K. S. Puttaswamy (Retd.) and anr. v. Union of India and ors. (2017) and Navtej Singh Johar v. Union of India (2018).[3] The judgment in NALSA v. UOI also noted the presence of transgender persons in India throughout its history, and made reference to the hijra, kinnar, and jogta communities, spread across the country and beyond in the Indian subcontinent.[4][5]

While the decision in the NALSA petition was still pending, an expert committee report on issues relating to transgender persons was published in January 2014, after consultations by the Ministry of Social Justice and Empowerment with transgender persons in August 2013.[6][7] In this background, Tiruchi Siva of the Dravida Munnetra Kazhagam party introduced a private member's bill in the Rajya Sabha, namely the Rights of Transgender Persons Bill (No. XLIXC-C), 2014.[8]

The government had initially asked him to withdraw the bill citing various anomalies; however, the opposition had a majority in the house and the bill was unanimously passed by the Rajya Sabha on 24 April 2015.[8] The bill was welcomed by queer rights activists in India.[9] However, some transgender persons noted their absence in the entire process and called for their recommendations being sought for.[10][11] Following the passing of the Rights of Transgender Persons Bill, 2014 in 2015, it stood to be the first private member's bill to be passed by the Rajya Sabha in the preceding thirty-six years[12] and by the Parliament in the preceding forty-five years.[13] Until 2015, only sixteen private member's bills had stood passed since 1947.[14]

The 2014 bill underwent significant changes when the government drafted its own version of the bill, with omissions of provisions in the 2014 bill.[15] After recommendations were received from transgender persons, the bill was sent to the Ministry of Law and Justice.[15] It came to be known as the Rights of Transgender Persons Bill, 2015.[16] Later, on 26 February 2016, the bill was introduced in the Lok Sabha for debate by Baijayant Panda of the Biju Janata Dal party.[17] He argued that the bill would help extend constitutional rights and end the discrimination against transgender persons, allowing them to live a life of dignity.[17] The bill was discussed in the Lok Sabha on 29 April 2016.[18] Siva stated that he will not be withdrawing the 2014 bill.[19]

While the 2014 bill passed by the Rajya Sabha continues to be pending,[20] the government tabled the Transgender Persons (Protection of Rights) Bill (No. 210), 2016, on 2 August 2016, following the constitution of the Lok Sabha, post the 2014 general elections.[21] The 2016 bill had various provisions reportedly regressive to the provisions in the 2014 bill.[22][23] The bill was met with criticism and protests from Indian transgender persons and was referred to the standing committee, which submitted its report in July 2018.[23] The Lok Sabha tabled and passed a newer version of the bill with twenty-seven amendments on 17 December 2018.[24][25] The bill was once again met with severe criticism and protests pan-India, as it overlooked the recommendations made by the standing committee and suggestions offered by transgender persons.[26][27] However, the 2018 bill stood lapsed.[28]

Following the constitution of the Lok Sabha, post the 2019 general elections, the bill was reintroduced on 19 July 2019 by the Minister of Social Justice and Empowerment, Thawar Chand Gehlot.[29] Before this the bill had been approved by the union cabinet on 10 July 2019.[30] The bill was passed by a voice vote in the Lok Sabha on 5 August 2019, amidst commotion in the house following the revocation of the state of Jammu and Kashmir's special status by the Parliament on the same day.[31][32] The bill was introduced in the Rajya Sabha by Thawarchand Gehlot on 20 November 2019, upon which it was passed without any amendments on 26 November 2019 following a motion to refer it to a select committee that failed by 77 noes against 55 ayes.[33][34][35] The bill received presidential assent on 5 December 2019, following which the Ministry of Law and Justice notified it in the Gazette of India as Act No. 40 of 2019.[36][37] The act came into effect from 10 January 2020 onwards vide a notification in the Gazette on the same day by the Ministry of Social Justice and Empowerment.[38][39]

Statutory provisions

The 2018 bill had criminalised begging — which transgender persons in India, such as the hijras and jogtas, engage in as a ritual-custom while some rely on it for livelihood — apart from mandating applications made to the district magistrate to be screened through a district screening committee for issuance of transgender person certificates.[40][41] The screening committee was to be composed of five people including a chief medical officer, district social welfare officer, psychologist/psychiatrist, and a representative of the transgender persons[42][43] The 2018 bill had also not provided for mandatory reservations for transgender persons and mandated lower punishment for crimes against transgender persons, as compared to punishment for crimes against cisgender persons under the Indian Penal Code.[23][25] It also ensured a family-life for transgender children, by prohibiting their separation from their family, without taking into account harassment and discrimination they may face within their family as a result of which they may choose to be separated and reside with transgender persons.[44][45] A transgender child, as per the provisions, could be separated from their family only by a court order.[26] The 2018 bill provided for undergoing sex reassignment surgery as a mandatory pre-requirement to be identified as male or female.[46] The 2019 act does away only with few of the criticised provisions of the 2018 bill, such as the district screening committee and the criminalisation of begging.[47]

The statutory provisions of the 2019 act prohibit discrimination against transgender persons.[47] Similar to the 2018 bill, the 2019 act includes intersex persons, hijras, jogtas, and kinnars within its definition of transgender persons,[46][48] though it does not define terms such as trans-man, trans-woman, and genderqueer.[46][49] Both, the 2019 act as well as the 2018 bill, describe a transgender person as someone whose gender does not match with the gender assigned to them at birth.[46][50]

Under the provisions of the 2019 act, a transgender person can apply to the district magistrate for a transgender person certificate which will give them the right to change the name on their birth certificate and have all documents updated accordingly.[51] However, similar to the 2018 bill provisions, a transgender person can be identified as male or female only after applying for a revised certificate to the district magistrate, post sex reassignment surgery.[52]

The 2019 act also protects transgender children and provides for states and institutions to come up with adequate policies for the welfare of transgender persons.[53][45] Similar to the provisions of the 2018 bill, under the provisions of the 2019 act a transgender child can be separated from their family by a court order.[26] However, unlike the Rights of Transgender Persons Bill, 2014 neither the 2018 bill nor the 2019 act provide for mandatory reservations for transgender persons in educational institutions and jobs.[29] The 2014 bill had provided for two per-cent reservations in educational institutions and public employment.[54] Similar to the 2018 bill, the 2019 act provides for punishment for crimes against transgender persons, which stands as an imprisonment for a term not less than six months but which may extend to two years and a fine.[23][49] The 2019 act, as well as the 2018 bill, also provide for the constitution of a National Council for Transgender Persons.[31][55]

Criticism and reactions
Protests against the 2018 bill in Mumbai, in December 2018

The 2018 bill passed by the Lok Sabha was widely criticised by transgender persons, activists, students, and lawyers.[56] Transgender persons protested in various cities in India calling the provisions regressive and in violation of the Supreme Court judgment in 2014.[25][23] The criminalisation of begging under the 2018 bill was to affect transgender persons in India, such as hijras and jogtas, who engage in begging as a ritual-custom while some rely on it for livelihood.[40][41] It was alleged by critics that the provision of the district screening committee left gaps for incompetence and prejudice.[44] Hindustan Times reported that even if the provision of a district screening committee existed to prevent imposters from seeking benefits of government welfare schemes, such an arrangement cannot be made at the expense of transgender persons' right to self-determination.[57] The definition of transgender persons under the 2018 bill, retained by the 2019 act, was reported by Frontline to be at variance with international expert understanding of the term.[46]

The 2018 bill and 2019 act have been met with protests by transgender persons.[58] Their passing by the parliament has been referred to some transgender persons as "black day" and "gender justice murder day".[37][22][59] Yet others described them as "draconian and discriminatory".[60] After the 2018 bill was passed by the Lok Sabha in December 2018, members of the opposition in Rajya Sabha had stated they will not let the bill pass in its present form in Rajya Sabha.[61] Protestors alleged the 2018 bill to be institutionalising violence and claimed neglect of recommendations made by the standing committee and transgender persons.[62] Transgender persons called for applications to the district magistrate for issuance of transgender certificates, lesser punishment for crimes against transgender persons, and absence of provisions on mandatory reservations for transgender persons regressive to the judicial mandate of the Supreme Court in 2014 in NALSA v. UOI, thereby violating right to equality and other fundamental rights of transgender persons.[62][63]

In the run-up to the 2019 general elections to the Lok Sabha, Indian National Congress had promised in its electoral manifesto to withdraw the 2018 bill and introduce a new one, in consultation with members of the queer community.[64][65] The Communist Party of India (Marxist) had supported the passing of the 2014 bill in its electoral manifesto.[64] In April 2019, transgender rights activist, Laxmi Narayan Tripathi, met the then Bharatiya Janata Party National General Secretary, Ram Madhav, seeking that the party would introduce a revised bill if it comes back to power.[66] Madhav ensured that the bill would address the concerns of the transgender community.[66] Soon after news reported that the 2019 bill was approved by the union cabinet, transgender rights activists called for a press conference in Delhi to address the issue.[67] On 24 November 2019, two days before the bill was passed by the parliament, protests were staged by the queer community in New Delhi and Bengaluru as part of the Delhi queer pride parade and the Bengaluru Namma Pride March, respectively.[68][69][70] The legislation also drew criticism from the All India Mahila Congress and opposition from parliamentarians including Jaya Bachchan and Sasmit Patra, while Derek O’Brien and Tiruchi Siva also expressed their concerns before the house.[34][70][71] After the legislation was passed by the parliament, transgender persons and activists protested against the legislation, organised meetings to address the situation, and urged the president not to sign and assent to the bill.[72][70] [73] There were also protests by the queer community against the act as part of the Mumbai pride parade, in February 2020.[74][75]

The legislation has been criticised by Human Rights Watch and the International Commission of Jurists.[76][77] On 27 January 2020, the Supreme Court issued a notice to the central government in a petition filed by advocate and transgender rights activist, Swati Bidhan Baruah, challenging the constitutionality of the 2019 legislation.[78][79]

See also

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