Examining The Constitutionality Validity Of The Transgender Persons (Protection of Rights) Act, 2019

Amritanshu Pushkar, Symbiosis Law School, Pune

Introduction

Article 15(1) of the Indian Constitution imposes a duty upon the state not to discriminate amongst its citizens on the basis of religion, race, cast, sex or place of birth. Out of all the above grounds for differentiation, today we have the word 'Sex' and the analysis upon, how effective the Transgender Persons (Protection of Rights) Act, 2019 will be. Supreme Court in NALSA vs Union of India1 defined Transgender as a community which is associated with the third gender, that is, people who do not conform to the sex determined to them at the time of their birth or whose expressions or behaviour do not match with biological sex assigned to them. However, the plane definition does not exclude them from being citizens of our country and if observed Article 15 (1) applies to all citizens and not just to the first two genders. Where other citizens do have the liberty and freedom of rights such as that of education, Healthcare self-identification, employment etc., whereas these rights remain denied to the transgender community in India despite the passage of more than 70 years of independence. There has been a need of legislation for preventing atrocities on the people belonging to the third gender and it is now worthwhile to know if the recently introduced legislation meets the demand of this community of people or the expectations of the globe to make India a truly gender-neutral country.