Members of LGBTQ community has been marginalized since decades in India because of their inability to fit into the prevalent categories of gender - male and female .Transgender persons have faced numerous problems ranging from social preclusion, social discrimination, sexual harassment, lack of education, lack of employment opportunities, lack of medical facilities, and much more.
After decades and decades of marginalization by society, several groups took the cause and approached the Supreme Court for recognition of transgender community and their welfare.
It is the NALSA v. UNION OF INDIA 5 SCC 438 ( hereinafter referred as NALSA) judgment of supreme court which directed central and state government to recognize transgender community as third gender for securing their fundamental rights and also to endeavour for welfare of transgender community and provide them protective environment.
Considering NALSA judgment, the Ministry of Social Justice and Welfare introduced draft of Transgender persons (protection of rights) bill, 2016. However, after passing in Loksabha it lapsed. Thereafter, in 2019 Transgender Persons (protection of rights) Bill, 2019 was introduced in Loksabha on 19th July 2019. It was passed from both the houses and received the assent of president on 5th December 2019 thus known as Transgender Persons (protection of rights) Act,2019.The Transgender Persons (protection of rights) Act,2019 has 9 chapters and 23 sections.
The preamble of the Act follows-
“An Act to provide for protection of rights of transgender persons and their welfare and for matters connected therewith and incidental thereto”
The Act shall come into force on such date as central government notifies in the official gazette. (10 January 2020)
It is suitable to highlight some of important provisions of the Act.
Sec 2 of the Act provides various definitions such as
SEC 2 (a)
Appropriate Government -
i) in relation to the Central Government or any establishment, wholly or substantially financed by that Government, the Central Government;
(ii) in relation to a State Government or any establishment, wholly or substantially financed by that Government, or any local authority, the State Government;
SEC 2(c)
Family- means a group of people related by blood or marriage or by adoption made in accordance with law;
SEC 2(d)
Inclusive education-
means a system of education wherein transgender students learn together with other students without fear of discrimination, neglect, harassment or intimidation and the system of teaching and learning is suitably adapted to meet the learning needs of such students;
SEC 2(e)
Institution-
means an institution, whether public or private, for the reception, care, protection, education, training or any other service of transgender persons;
SEC 2(f)
Local authority-
means the municipal corporation or Municipality or Panchayat or any other local body constituted under any law for the time being in force for providing municipal services or basic services, as the case may be, in respect of areas under its jurisdiction;
SEC 2(g)
National council-
means the National Council for Transgender Persons established under section 16;
SEC 2(k)
Transgender person-
means a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such social-cultural identities as kinner, hijra, aravani and jogta.
Chapter 2 of the Act contains Section 3 which prohibits discrimination against transgender persons in any educational establishment, in employment, in health-care facilities, in access to enjoyment of goods or accommodation dedicated for use of general public.
Section 3 prohibits discrimination against transgender person in accordance with Article 15 of constitution of India.
Chapter 3 titled as “ Recognition of identities of transgender persons”.
Section 4 of the Act promises to transgender their “right to be recognized” as transgender person.
Section 5 provides procedure for submission of application to the District Magistrate
Section 6 of the Act requires Magistrate to issue “certificate of identity”.
Section 7 provides, after issuance of certificate under section 6, if transgender person wants to change his gender, he has to submit the certificate to District Magistrate, issued by Chief medical officer of medical institution, in which such person has undergone surgery.
Chapter 4 contains section 8 which deals with affirmative action of appropriate government for welfare of transgender persons through various schemes, public awareness, etc.
Chapter 5 contains Section 9 to section 12 which imposes obligation on establishment and other persons.
Section 12 deals with right to transgender child not to get separated from their parents for being transgender.
Chapter 7 prescribes constitution and functions of National Council for Transgender person.
Section 16 provides for constitution of National Council which consist of-
1) Union Minister, Minister of Social justice and Welfare;
2) Minister of State, Minister of Social justice and Welfare;
3) Secretary of government of India, Minister of Social justice and Welfare;
4) Representative each from Health and Family, Home Affairs, Housing and Urban Department, Ministry of Human Resource Development, Ministry of Rural Development;
5) One representative from National Human Rights Commission, National commission for Woman, not below rank of joint-secretary;
6) Representative of state Government;
7) Five representatives from Transgender community;
8) Five representatives who are experts in the field;
9) Joint-secretary of Government of India, Minister of Social justice and Welfare.
Chapter 8 deals with offenses and penalties.
Section 18 provides punishment of imprisonment not less than 6 months but which may be extend to two years with fine, for various offenses against transgender person.
Section 19 of the Act empower Central Government to provide grant to National Council for Transgender persons to perform it’s functions under Section 17.