Gender Justice and Feminist Jurisprudence | The Transgender Persons (Protection of Rights) Act 2019

Context and Background

Before 2019, the legal status of transgender persons in India was primarily governed by the landmark Supreme Court judgment in National Legal Services Authority (NALSA) v. Union of India (2014).

1. The NALSA Verdict: The Court declared transgender people as the "Third Gender," affirmed that fundamental rights (Articles 14, 15, 16, 19, and 21) apply equally to them, and upheld the Right to Self-Identification of gender.

1. The 2019 Act: This Act was introduced to provide a statutory (legal) framework to implement the NALSA directives. It received Presidential assent on December 5, 2019, and came into effect on January 10, 2020.

Key Features of the Act

The Act seeks to provide a mechanism for the social, economic, and educational empowerment of transgender persons.

A. Broad Definition (Section 2)

The Act defines a "transgender person" as one whose gender does not match the gender assigned at birth. This includes:

1. Trans-men and Trans-women.
2. Persons with intersex variations.
3. Gender-queers.
4. Socio-cultural identities such as Kinnar, Hijra, Aravani, and Jogta.

B. Prohibition Against Discrimination (Section 3)

The Act prohibits discrimination against transgender persons in:

1. Education & Employment: Denial of service or unfair treatment in recruitment and promotion.
2. Healthcare Services: Denial of medical facilities.
3. Public Access: Access to goods, facilities, and opportunities available to the public.
4. Property: Right to reside, purchase, or rent property.

C. Certificate of Identity (Sections 4-7)

A transgender person has the right to a "self-perceived" gender identity. However, the legal process is a two-step mechanism:

1. Application: An application is made to the District Magistrate (DM) for a Certificate of Identity as "Transgender."
2. Gender Change: If the person undergoes surgery (SRS) to change their gender to Male or Female, they must apply for a Revised Certificate from the DM, supported by a medical certificate from a Chief Medical Officer.

D. National Council for Transgender Persons (NCTP)

The Act mandates the setting up of the NCTP to advise the government on policies.

1. Chairperson: Union Minister for Social Justice and Empowerment.
2. Composition: Includes representatives from various ministries (Health, Home, HRD), NITI Aayog, NHRC, State Governments, and five members from the transgender community.

Comparison: NALSA Judgment vs. 2019 Act

This is a critical area for Feminist Jurisprudence exams, as the Act is often criticized for "diluting" the Supreme Court's directives.

Major Criticisms and Lacunas (The "Gender Justice" Critique)

Despite its progressive intent, the Act faced massive protests ("Black Day") from the community for the following reasons:

1. Infringement on Autonomy: By requiring a District Magistrate's certification, the Act violates the principle of "self-identification" established in NALSA and the Puttaswamy (Right to Privacy) judgment. It subjects a person’s identity to bureaucratic "vetting."

1. Inadequate Penalties: Section 18 prescribes a punishment of 6 months to 2 years for sexual abuse of a transgender person. In contrast, sexual assault against a cisgender woman under the IPC carries a much harsher sentence (7 years to Life). Critics argue this creates a "hierarchy of bodies" where trans bodies are valued less.

1. Absence of Civil Rights: The Act is silent on "horizontal rights" such as marriage, adoption, and inheritance, leaving the community in a legal vacuum regarding family law.

1. The Begging Dilemma: While the final Act removed the explicit criminalization of begging (which was in the 2016 draft), it still penalizes "compelling or enticing" transgender persons into "forced or bonded labor." Since many in the community rely on traditional badhai or begging for survival due to job exclusion, this remains a grey area for police harassment.

Recent Developments & Welfare Measures

1. SMILE Scheme: Support for Marginalized Individuals for Livelihood and Enterprise. It includes the sub-scheme "Comprehensive Rehabilitation for Welfare of Transgender Persons."

1. Garima Greh: Shelter homes established to provide safe spaces, food, and skill development for transgender persons.

1. Ayushman Bharat TG Plus: A dedicated health insurance package providing ₹5 Lakh cover per year, including gender-affirming surgeries and hormonal therapy.

Analysis of Recent Case Law: Jane Kaushik v. Union of India (2025)

1. The Facts of the Case

The petitioner, Jane Kaushik, a transgender woman and a qualified teacher, was dismissed from her employment at two private schools in Uttar Pradesh and Gujarat. She faced harassment, body shaming, and name-calling by colleagues and students because she did not conform to traditional "female" gender norms. She approached the Supreme Court under Article 32, alleging that her termination was a violation of her fundamental rights and the Transgender Persons (Protection of Rights) Act, 2019.

2. The "Substantive Equality" Breakthrough

The Court, led by Justices J.B. Pardiwala and R. Mahadevan, made a massive doctrinal leap by introducing the concept of "Reasonable Accommodation" into transgender jurisprudence.

1. Beyond Formal Equality: The Court held that simply saying "transgender people can apply for jobs" (formal equality) is not enough. The State and private actors must provide additional support (substantive equality) to ensure they can succeed in those jobs.

1. The Sandra Fredman Lens: The Court applied the "four dimensions of substantive equality" to evaluate the case:
2. Redressing disadvantage.
3. Addressing stigma and stereotypes.
4. Enhancing voice and participation.
5. Accommodating difference.

3. Key Findings on the 2019 Act

The judgment acted as a scathing critique of the executive's failure to implement the 2019 Act.

1. "Omissive Discrimination": The Court coined this term to describe how the Government’s inaction—failing to set up protection cells or grievance redressal mechanisms—is itself a form of discrimination.

1. Apathetic Infrastructure: The Court noted that except for West Bengal, Tamil Nadu, and Delhi, almost no other states had framed rules to implement the Act, rendering the rights "empty formalities."

Additional Recent Landmark: Zahhad & Anr. v. State of Kerala (2025)

While Jane Kaushik dealt with the workplace, the Kerala High Court in the Zahhad case (June 2025) addressed the "Transgender Family."

1. The Issue: A trans-couple (where the trans-man, Zahhad, gave birth) sought to be listed as "Parents" on the birth certificate rather than "Father" and "Mother" to avoid mis-gendering.

1. The Ruling: The Court directed the authorities to issue a gender-neutral birth certificate.

1. Jurisprudential Value: This case is foundational for Family Law in Feminist Jurisprudence. It acknowledges that the "unit of family" is evolving and that the law must accommodate "Queer Families" to protect the dignity of the child and the parents.

While the NALSA (2014) judgment gave the "Vision," and the 2019 Act gave the "Skeleton," it is these recent High Court and Supreme Court judgments (2024-25) that are providing the "Muscles" (enforcement mechanisms) for gender justice.