Transgender Persons (Protection Of Rights) Act, 2019

Shivani Iyer, Symbiosis Law School, Pune

HISTORICAL EVOLUTION

In a 2014 judgement of NALSA v. Union of India1, the Supreme Court of India recognized transgender people's basic rights and granted them equal constitutional status under Indian law. The court maintained all people's freedom to self-identification and decided that hijras and eunuchs might legally designate themselves as "third gender." In the case of Navtej Singh Johar.v. Union of India2, a portion of Section 377 of the Indian Penal Code 1860, which outlawed consensual intercourse between homosexual partners, was decriminalized. As a result, the Transgender Act of 2019 was drafted, which was finally enacted and got the President's consent. Biological gender is based on physical traits but the identification of sex cannot be shaped by the principles of heteronormativeness and relies on an intrinsic understanding of gender. The court held that biological sex and gender identities have different conceptions. This right to self-identification is also drawn from constitutional rights and ideals such as the right to live in dignity under Art 21, equality under Art 14, sexual expression freedom under Art 19(1)(a), and protection from discrimination under Art 15. The court subsequently ordered the federal and state governments to create a legislative framework to legalize "third gender" identity and safeguard people from discrimination, injury, stigma, and other negative consequences.