Transgender Persons (Protection of Rights) Act 2019

Topic: Safeguards for Vulnerable Sections: SCs, STs, OBCs, Minorities, Women and Children · NCERT: Beyond NCERT

Meaning

The Transgender Persons (Protection of Rights) Act 2019 is a law of Parliament. It bans discrimination against transgender persons in education, jobs, health care, property and access to goods and services. It also gives them a legal certificate of identity from the District Magistrate (the top government officer of a district) and sets up a National Council for Transgender Persons.

It matters because it turned the Supreme Court's recognition of a "third gender" in NALSA (2014) into a written law. It is also often criticised for diluting that judgment's idea of self-identification, meaning a person's right to decide their own gender.

Explanation

Background: from court judgment to law

NALSA v. Union of India (15 April 2014): the Supreme Court legally recognised a "third gender".
Every person has a right to self-identify their gender. No surgery is needed.
The Court based this right on Articles 14, 15, 16, 19(1)(a) (freedom to express one's gender identity) and 21 (dignity and personal choice).
It told governments to treat transgender persons as socially and educationally backward classes (SEBCs). These are groups that can get reservation in admissions and jobs.
The 2019 Act is Parliament's law on these rights. It was notified on 10 January 2020, and the Rules came in 2020 [1]. "Notified" means the government brought it into force through an official notice.

Main parts of the Act

Ban on discrimination: no one may treat a transgender person unfairly in:
education;
jobs;
health care;
property;
access to goods and services.
Certificate of identity (Sections 6–7):
The person applies to the District Magistrate, who issues the certificate.
No medical examination is needed for the first certificate [2].
Revised certificate after surgery (Section 7):
If a person has surgery to change gender to male or female, they must apply again and show proof of the surgery.
Offences (Section 18): the Act punishes:
abuse;
forced labour;
stopping a transgender person from using public places.
Penalty: imprisonment of up to 2 years and a fine [2].

Institutions and schemes linked to the Act

National Council for Transgender Persons: set up by notification on 21 August 2020 [1].
It is chaired by the Union Minister of Social Justice and Empowerment.
It advises the government on policy, monitors how the Act is applied, and handles grievances (complaints) [1].
SMILE scheme (Support for Marginalised Individuals for Livelihood and Enterprise): launched on 12 February 2022 by the Ministry of Social Justice and Empowerment [1].
Under it, Garima Greh shelter homes give food, medical care and skill training to transgender persons in need.
21 Garima Grehs have been set up in 17 states [1].

Limits and criticism

Certificate vs self-identification:
NALSA said gender is a matter of the person's own choice.
The Act still needs a government officer (the District Magistrate) to certify it.
A person who has surgery must apply for a fresh certificate with medical proof. This sits uneasily with NALSA.
Lighter penalties: the maximum of 2 years in jail is lighter than the penalties for similar offences against women.
Reservation not given: the NALSA direction to treat transgender persons as SEBCs for reservation has still not been largely applied at the Centre.

In the Constitution and practice

Constitutional base: Articles 14, 15, 16, 19(1)(a) and 21, as read in NALSA (2014). The Act is an ordinary law of Parliament. It is not a constitutional amendment.
Who runs it:
District Magistrate: issues certificates of identity [2].
Ministry of Social Justice and Empowerment: runs the SMILE scheme, and its Minister chairs the National Council [1].
National Council for Transgender Persons (2020): advises, monitors and handles grievances [1].
Landmark cases and key events:
NALSA v. Union of India (2014): third gender recognised, self-identification upheld, SEBC treatment directed.
Navtej Singh Johar (2018): decriminalised same-sex relations. This is a separate Fundamental Rights issue.
Supriyo @ Supriya Chakraborty v. Union of India (17 October 2023):
- The Court held there is no fundamental right to marry. Recognising same-sex marriage is for Parliament to decide.
- The Union promised a committee chaired by the Cabinet Secretary. It was constituted in April 2024 [3].
- It must suggest steps so that queer persons are not denied goods, services or welfare, do not face violence or coercion, and are not forced into medical treatment [3].
State example: Karnataka (2021) gives 1% horizontal reservation to transgender persons in state government jobs.
Horizontal reservation means the quota cuts across the vertical categories (SC, ST, OBC, General).
A transgender person selected under it is counted within their own vertical category.

Don't confuse with

NALSA judgment (2014) vs the 2019 Act: NALSA allows self-identification of gender. The Act needs a certificate from the District Magistrate, and a new one after surgery.
Navtej Singh Johar (2018): this case is about decriminalising same-sex relations. The 2019 Act is about anti-discrimination and identity for transgender persons. They deal with different issues.
Supriyo (2023): this case is about marriage. The Court refused to recognise same-sex marriage and left it to Parliament. The 2019 Act gives no marriage rights.
National Council for Transgender Persons vs Chief Commissioner for Persons with Disabilities: the Council is chaired by the Union Social Justice Minister and advises and monitors under the 2019 Act. The Chief Commissioner hears complaints under the RPwD Act 2016.

Prelims Hooks

Certificate of identity under the 2019 Act is issued by the District Magistrate, not by a medical board or court. No medical examination is needed for the first certificate [2].
National Council for Transgender Persons: constituted on 21 August 2020 and chaired by the Union Minister of Social Justice and Empowerment [1].
Act notified on 10 January 2020 [1]. Trap: the Act is from 2019, but it came into force in 2020.
Section 18: offences against transgender persons are punishable with up to 2 years in jail and a fine [2].
NALSA (2014) → third gender and self-identification under Arts. 14, 15, 16, 19(1)(a), 21. The SEBC reservation direction came from this judgment, not from the Act.
SMILE scheme (12 February 2022) → Garima Greh shelter homes. There are 21 of them in 17 states [1].

Mains Points

Self-identification vs state certification:
NALSA made gender identity a matter of personal choice under Articles 19(1)(a) and 21.
The 2019 Act adds a District Magistrate certificate and a fresh certificate with medical proof after surgery. Critics say this brings back state control over identity.
Reform: a simple self-declaration process, with the District Magistrate's role limited to recording it.
Weak protection and missing affirmative action (special measures, such as reservation, to help a disadvantaged group catch up):
Penalties of up to 2 years are lighter than those for similar crimes against women [2]. This raises an Article 14 equality concern.
The NALSA SEBC reservation direction is still largely not applied at the Centre.
Model: Karnataka's 1% horizontal reservation (2021) could be adopted by other states.
From law to welfare in practice:
The National Council [1], the SMILE scheme and 21 Garima Grehs [1] show steps forward. But the coverage is small for the whole country.
The Cabinet Secretary committee after Supriyo (April 2024) [3] can help close gaps in access to services and welfare for queer persons.

Related concepts

Persons with disabilities, transgender persons and senior citizens

Sources

1PIB — Rights of Transgender Persons in Indiapib.gov.in · tier 1
2PIB — Rights of Transgender Persons in India: Legal Reforms and Inclusive Progressstatic.pib.gov.in · tier 1
3PRS — Monthly Policy Review, April 2024 (committee on queer persons' issues)prsindia.org · tier 1