Trans - Rights Are Human Rights : An Evaluation of Law on the Protection of Transgender Rights in India

Abstract

2014 is a year to be remembered in the history of India in terms of Transgender Rights, followed by its fruit in the year 2019. The Judiciary in recognizing the status of Transgender Persons in the country, identified them as the ‘third gender’ in the NALSA Judgment (2014). Following cue, the Indian Parliament passed The Transgender Persons (Protection of Rights) Act, 2019. At the international level too, the efforts of respecting, safeguarding, protecting and fulfilling the rights of Transgender has been witnessed constantly through strong recommendations and comments of the United Nations Charter and Treaty based bodies. The promulgation of the Act of 2019 in India was a celebrated event as many believed, that it marked an end to the age long marginalization and discrimination faced by the Transgender Community. A cursory glance at the legislation would give many, hopes in that regard. However, it was and is still met with opposition from the Transgender Activists leading to the struggle of the community to continue. What makes this legislation an issue of debate? It is questioned on the basis of the very definition of the term ‘Transgender’. It rejects some of the most important points of the NALSA guidelines. It is almost completely silent on civil and political rights and most importantly it lacks the voice of Trans-genders themselves for whom the law is made. This however does not mean that it is a failed legislation. It is certainly an effort worth appreciating as it opened doors for prohibition of discrimination and providing social welfare measures for the community. This paper, seeks to address some of the limitations and gaps of the legislation. In doing so, it also tries to understand the concept of trans-genders, the historical background in India, forms of discrimination faced by the community, international human rights laws provisions on their rights and the role of judiciary in promoting the rights of the community.