The year 2019 was a watershed moment for the transgender community as it was in this year that they got their dignity as true Indian citizens. The Transgender Persons (Protection of Rights) Act, 2019 was passed by Parliament to protect the rights and dignity of transgender people and ensure their welfare. The law recognised transgender persons legally and prohibited discrimination against them. It also provided for welfare measures like healthcare, education, and employment support. However, six years down the line it is yet to be implemented in letter and spirit. As with most Indian laws, much is desired when it comes to their implementation.
The law is in the eye of storm as the Government mulls an Amendment to the existing law. The proposed amendment aims to narrow the definition of “transgender persons,” to improve enforcability and prevent misuse. But the ground reality is that it is not the flaw in the law but failure of the implementing agencies to enforce it on the ground. This concern has been echoed not only by transgenders and civil society groups, but also by the judiciary itself, most recently in the Jane Kaushik vs Union of India judgment. The fact remains that the basic facilities such as gender-neutral washrooms, inclusive accommodation, and grievance redressal mechanisms are absent barring a very few exceptions. The absence of clear work plan and guidelines has has led to ad hoc arrangements and ineffective solutions. The real problem is not identity of transgenders but the lack of operational clarity and accountability. And this is something which cannot be fixed by amending the law. Moreover the awareness about the law very limited. Many Institutions either remain unaware of their obligations or choose to defer action, often citing the absence of transgender persons on campus. But by law they are supposed to provide the facilities specific to transgender communities even if they may not be there. It is like refusing to build a ramp in a building because hardly anyone uses it. To add to the woes there is a problem of mindset and general attitude of people towards transgenders which makes many transgenders to conceal their identity, yet institutions use their absence to justify inaction.
Protecting transgender rights, however, goes far beyond compliance. The more important aspect is proving the constitutional guarantee of dignity, equality, and the right to life. Landmark judgments like NALSA v Union of India have affirmed that gender identity is intrinsic to personal autonomy. Any move to replace self-identification with a more “objective” or medicalised standard risks undermining this recognition and pushing transgender persons back into systems of gatekeeping and exclusion. At the same time, the challenges are real. Policymakers face the task of designing systems that ensure targeted delivery of welfare benefits while keeping the fraudsters at bay as many people might falsely claim benefits by posing as transgenders. But this is the risk which must be endured rather than punishing the whole transgender community. The best way is to involve the transgender communities in shaping policies that affect their lives.
