Transgender Persons (Protection of Rights) Act: Debate Over Self-Perceived Gender Identity

The Government of India introduced a Bill in the Lok Sabha, proposing amendments to the Transgender Persons (Protection of Rights) Act, 2019, to redefine a transgender person and remove the right to self-perceived gender identity.

• The key changes being proposed have to do with the definition of a “transgender person” and the expansion of the section on offences against transgender people and punishments for them

Key Changes Introduced in Transgender Persons (Protection of Rights) Act, 2019

• Definition of Transgender People:

• Introduction of “Authority” for Certification: The proposed amendments suggest introducing the terminology for “authority”, defining it as “a medical board, headed by a Chief Medical Officer or a Deputy Chief Medical Officer, as may be appointed by the Central Government, State Government or Union territory Administration”.
• Right to Change Name in Official Documents: It confers the right of transgender people to have their first names changed in birth certificates and other identification documents, with the caveat that the person should be a “transgender person” as per the new proposed definition.
• Mandatory Revised Gender Certificate after SRS: It also compels a transgender person to apply for a revised gender certificate after having undergone Sex-Reassignment Surgery (SRS), as opposed to the current law, which leaves it up to the person.
• Mandatory Reporting by Medical Institutions:  A new section has been proposed, which also compels medical institutions performing SRS to furnish details about the procedures to the District Magistrate.
• Expanded Offences and Penalties: The amendment proposed to the section on offences and penalties has been significantly expanded, with crimes against transgender persons and children being included and graded punishments prescribed, ranging from rigorous imprisonment to life term and fines of up to Rs 5 lakh.
• Change in Issuance of Transgender Certificate 

Concerns over the Proposed Amendments

• Removal of Self-Perceived Gender Identity: The amendment omits the right to self-perceived gender identity, which contradicts the principles laid down in the landmark National Legal Services Authority v. Union of India (2014) judgment that recognised the right to self-determination of gender identity.
• Restrictive Definition of Transgender Persons: Activists argue the new definition limits transgender identity mainly to certain socio-cultural categories, potentially excluding many individuals who identify as transgender.
• Cultural and Terminology Concerns: Critics say the definition prioritises terms such as hijra, kinner, aravani, while ignoring other respectful regional terms used by communities across India.
• Identity and Legitimacy Issues within the Community: The new definition may create confusion and divisions within the transgender community over who qualifies as transgender under the law.

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Government’s Reasoning for the Proposed Amendments

• Addressing Implementation Difficulties: The Ministry of Social Justice and Empowerment stated that since the enactment of the Transgender Persons (Protection of Rights) Act, 2019, several doubts and difficulties have arisen regarding the definition and identification of transgender persons.
• Existing Definition Considered Vague: The government argues that the current definition is too vague, making it difficult to identify genuinely marginalised individuals who are meant to receive the Act’s benefits.
• Legal and Administrative Compatibility: According to the government, the existing definition creates practical challenges in applying criminal, civil, and personal laws and is not compatible with other statutory provisions enacted by Parliament and State legislatures.
• Targeting Biological Social Exclusion: The government states that the law intends to protect individuals facing severe social exclusion due to biological reasons, rather than covering all forms of gender identities or self-perceived gender identities.
• Need for a Precise Definition: Since the Act provides wide-ranging protections and benefits, the government argues that clear and precise identification criteria are necessary to ensure benefits reach the intended groups.

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