This article is written by Fayza Khan , in her 5th year of BA.LL.B , during her internship at LeDroit India , about the implementation of the Transgender Persons (Protection of Rights) Act, 2019.
Keywords
Transgender , Cisgender , NALSA, identity certification, self- perceived genders, discrimination, bureaucratic hurdles, implementation.
Abstract
The Transgender Persons (Protection of Rights) Act, of 2019, presents India’s first comprehensive statutory framework aimed at protecting the rights and dignity of transgender persons. This act was enacted as a response to the Hon’ble Supreme Court’s landmark judgment in the case of NALSA v. Union of India 2014. This act recognizes the right to self perceived gender identity and also prohibits discrimination. It also guarantees them access to healthcare, education and employment. However a statute is futile without proper implementation mechanisms. Its implementation has been fraught with challenges such as bureaucratic hurdles in identity certification , inadequate healthcare infrastructure and lack of social security outreach.
This article aims at shedding light on the implementation of Transgender Persons Protection of Rights Act and also examining its historical background , key provisions and the challenges faced in its implementation.
Content
- Introduction
- Historical Evolution of Transgender Rights in India
- NALSA v. Union of India
- Key Provisions of the Act
- Implementation of the Act
- Challenges in Implementation
- Comparative Analysis with Global Practices
- Recent Judicial and Government Initiatives
- Suggestions for Effective Implementation
- Conclusion
- Reference
Introduction
Human rights are universal and indivisible , yet marginalized groups often struggle to secure recognition , dignity and equality. For some these basic human rights are a dream , the transgender people belong to this group. Isn’t it terrible that they have to fight in order to be treated as human beings. In India ,they have faced this discrimination throughout history, either through social ostracization or through lack of access to fundamental rights .The introduction of the Transgender Persons (Protection of Rights) Act marked a significant milestone in the evolution of Indian legislation. For the first time their rights were being recognised through this statute.The legislation was brought forward to give legal effect to the directives laid down in the historic 2014 verdict of the National Legal Services Authority (NALSA) versus the Union of India , wherein the Supreme Court guaranteed the rights of the transgender persons to self-identify their gender and it also directed the state to take positive measures for their socio-economic empowerment .
However , the story of the act’s implementation is far from unproblematic. The act represented the legislative recognition of a long-ignored community ,moreover its implementation has been fraught with criticism, ambiguities, and resistance from the transgender community itself.
This article takes a deep dive into how the Act has unfolded , mapping its strengths, shortcomings ,and the urgent reforms required to make dignity tangible.
Historical Evolution of the Transgender Rights in India
The history of transgender persons in India is paradoxical. Traditionally, India has always recognized a third gender community, who were neither male nor female , the society referred to them as “hijras” or “ hijadaas”. Ancient Hindu and Buddhist scriptures frequently recognize a third gender and regard it as equal to the other two genders. The famous epic Mahabharata, also included certain characters who changed their genders , according to some versions of the epic. For example , “Shikhandi”,who is occasionally said to have taken birth as a female but later identified herself as a male and married a woman.
Culturally , hijras,kinnars and jogappas had held recognized positions in Indian society , often associated with religious and spiritual significance.
However , the arrival of the British in India changed everything. They imposed their Victorian morality and rigid binary norms . The British labelled these hijda communities as a “criminal tribe”. Laws such as the Criminal Tribes Act of 1871 criminalized and stigmatized the community branding them as “habitual criminals”. They were ostracized , surveilled by police ,and subjected to punitive measures simply for existing.
In the Early Post-Independence era , despite Constitutional guarantees of equality and non-discrimination enshrined under Article 14,15 and 21, transgender persons remained invisible in legal and policy frameworks. They had no identity documents reflecting their genders .They were excluded from education, healthcare,voting ,property rights and other government benefits.
The Constitutional breakthrough occurred with the NALSA judgment of 2014,where the Supreme court declared that the transgender persons are also entitled to equality and dignity under the ambit of the constitution .
National Legal Services Authority v. Union of India 2014:
It is the landmark judgment of the Supreme Court which legally recognized the rights of the transgender persons in India. The petitioners were NALSA along with the activists like Laxmi Narayan Tripathi, who were seeking legal recognition and protection of the trans community. They challenged the invisibility faced by these communities as violation of Fundamental rights guaranteed by the Constitution of India. The hon’ble Supreme Court officially recognized transgender people as “third gender” under the law and also affirmed the right to self-identify gender without any medical requirements. The judgment guided the state to treat the trans community as socially and economically backward classes , reserving their seats in education and government jobs. Also aimed for having separate HIV/healthcare facilities and social welfare schemes in the country. The foundation for the Transgender Persons (Protection of Rights)Act , 2019 was laid as a response to this case. Hence this case became a cornerstone for LGBTQ+ rights litigation in India.
This judgment created the impetus for legislative intervention. Initially the Bill was introduced in 2016 but was strongly met with criticism for not being consistent with NALSA. Finally, the 2019 Act was passed, despite opposition from activists who felt that it diluted the essence of the Supreme Court’s directives.
Key Provisions of the Transgender Persons (Protection of Rights)Act ,2019
- Definition and Recognition : The Act defines transgender persons as the ones whose gender does not match with the gender they are born with, including trans-men, trans-women, persons with intersex variations, genderqueers, and socio-cultural identities like hijra , kinnars and jogta .This Act recognized the right of every trans person to self perceive their gender identity.
- Prohibition of Discrimination : The Act strictly prohibited any type of discrimination towards these communities in education, employment, healthcare, access to public places, and right to property. It mandated that all institutions create and maintain an inclusive and supportive environment for everyone.
- Right to Residence : The Act granted the trans persons the right to reside with their families. If rejected , they have the right to approach a rehabilitation center established by the government.
- Identity Certificates : The Act provided for a certificate of identity issued by the District Magistrate on the basis of self -declared identity. For the recognition of the individual as male or female,( a post surgery) medical certificate is also required.
- Healthcare and Welfare :The Act mandates the state government to provide medical facilities , separate HIV sero-surveillance centers, and comprehensive medical insurance schemes.
- National Council for Transgender persons (NCT) : The Act provides for the establishment of NCT to advise the government , monitor policies and redress grievances of the trans community or related to them.
- Offences and Penalties : The Act criminalizes any type of discrimination or denial of rights , physical or sexual abuse and violence against transgender persons with 6 months imprisonment which extend upto 2 years .
Implementation of the Act
Since the enactment of the Act, its implementation has been inconsistent and uneven across states. The most contentious provision has been the certification process. Although the Act claims to respect self -perceived identity, it paradoxically requires transgender persons to apply to a District Magistrate for official recognition. A medical certificate of sex reassignment surgery is mandatory for the transition to male or female class. This provision has been heavily criticized for violating the principle of bodily autonomy and NALSA’s emphasis on self-identification.
Despite the mandatory provisions of the act , very few government hospitals have special facilities for transgender persons. The absence of subsidized hormone therapy and the lack of trained doctors remains as a massive barrier.
After the implementation of this act , several states have launched pension schemes, skill development programs and housing benefits yet the awareness and accessibility is still limited. The National Council for Transgender persons (NCT) established under this act, has been criticized for lack of representation and limited impact. Its advisory role lacks in holding a binding authority and thus reduces its effectiveness.
Challenges in Implementation
- Contradictions within the Act : On one hand the Act recognizes self-identification on the other hand makes it subject to bureaucratic approval, thus undermining its autonomy.
- Weak Punitive Measures : Sexual abuse against transgender person attracts punishment of only 2 years , which is far less than the punishment for similar offences against a cisgender woman. This raises concerns of inequality and safety of trans persons.
- Lack of Awareness : There is widespread ignorance among officials, police , and the general public about the Act and its provisions.This unawareness serves as a barrier to the successful enforcement of the Act.
- Institutional Resistance : Even after years of implementation of this Act, transgender persons often face humiliation in bureaucratic offices when they apply for certificates or for benefits.
- Judicial Ambiguities : While NALSA was progressive , post -Act litigations have highlighted tensions between the statutory provisions and the constitutional guarantees. Though the courts have intervened in some cases to uphold dignity, yet clarity still needs to evolve.
Comparative Analysis with Global Practices
In Argentina the Gender Identity Law 2012 , allows its citizens the right to self-preceive genders and legally recognizes it without any medical or bureaucratic intervention.
Nepal and Pakistan also legally recognize a third gender without requiring any surgery or certification. Similarly Malta and Ireland follow the models of self-declaration, ensuring dignity and autonomy of the citizens.
Compared to these countries , India’s Act appears to be more restrictive and rigid. Thus making the recognition contingent on the approval of the administrative authorities.
Recent Judicial Developments and Government Initiatives
- Madras High Court (2025) – The Court ,while reviewing Tamil Nadu’s new transgender policy, questions the state about its stand on reservations for transgender persons in education and employment. It also directed the government to ensure the creation of district and state level committees with transgender representation, reflecting the Act’s spirit of inclusivity.
- Delhi High Court Orders on Welfare Access(2023-24) – The court , in multiple hearings, stressed the need for smooth issuance of identity certificates and directed the state to reduce bureaucratic barriers that prevent transgender persons from accessing welfare schemes.
- Delhi’s Transgender Rules (2025) – The Government of Delhi notified the Transgender Persons (Protection of Rights) Rules , introducing an online process for obtaining identity certificates without mandatory medical examinations. This step aligns with the principle of self-declared identity.
- Odisha’s Inclusive Recruitment (2025) – The Odisha government directed that all government job application forms must include “transgender” as a separate gender category, ensuring equal opportunities in public employment .
- Nagpur Administrative Drive (2025) – Local authorities instructed the officials to expedite the issuing process of Aadhaar , ration card and voterID cards for transgender persons and also promoted their inclusion in welfare schemes.
- Awareness Campaigns in Karnataka (2025) – The Udupi district administration organized sensitization workshops for government officials, making it clear that any form of disrespect toward transgender individuals could attract legal consequences.
- Aviation Sector Sensitization (2025) – Security staff and employees at Kanpur Airport , were trained to respectfully treat transgender persons during security checks, marking an important step toward inclusivity in public spaces.
- Garima Greh (Safe Homes) – This government scheme provides shelter and community living facilities for transgender persons in distress.
While these measures show progress , especially in documentation, healthcare access and sensitization , challenges still persist.
Suggestions for Effective Implementation of the Act
- Amendments are required in the Act to remove bureaucratic hurdles in recognition of gender identity. And also to enhance punitive penalties for violence to bring equality with laws protecting cisgender women.
- It is crucial to have sensitization of police , bureaucrats, healthcare providers and educators.
- The healthcare system needs reforms to establish specialized transgender health clinics in all districts and to provide subsidized hormone therapy.
- The government must ensure representation of transgender persons in policymaking bodies.
- The National Council for Transgender Persons should be empowered with binding authority to enhance its effectiveness.
- The government must promote social acceptance through education, media campaigns and community engagement.
- The Courts must continue to interpret the Act in line with constitutional principles of dignity, autonomy ,and equality.
Conclusion
The journey of Transgender Persons( Protection of Rights) Act , from paper to practice has been uneven. After years of injustice and invisibility, the transgender persons finally achieved a piece of legislation in their favour. Court intervention, state-level initiatives and government welfare schemes signal progress but bureaucratic obstacles , limited awareness and insufficient social acceptance continue to hold back its full impact.
The true empowerment of transgender community requires more than just legal recognition – it demands consistent enforcement and meaning participation of transgender persons in policymaking. India stands at a critical juncture where laws must evolve into lived realities.
The ultimate success of the Act will be when every transgender individual can walk into schools, workplaces, hospitals, and public spaces with dignity , equality and respect as their inalienable rights.
Reference
- https://www.indiacode.nic.in/bitstream/123456789/13091/1/a2019-40.pdf
- https://en.wikipedia.org/wiki/Transgender_Persons_(Protection_of_Rights)_Act,_2019
- https://www.ibanet.org/article/0f3ae21b-0170-4bf7-95dd-45b07ef1caf6
- https://nyaaya.org/resource/guide-on-the-rights-of-transgender-persons-in-india/
- https://en.wikipedia.org/wiki/LGBTQ_rights_in_India
- https://www.openglobalrights.org/citizenship-laws-transgender-subjectivities-new-india/
