Constitutional Challenge to the Transgender Act

The Transgender Persons (Protection of ) Act was introduced by the Ministry of Social Justice and Empowerment on 5th August 2019. The main objective of this Act was to provide rights pertaining to the protection of the transgenders in India and enhances the of these citizens, to ensure equality amongst all.

The Act has been challenged in the Supreme Court, by Swati Bidhan Baruah, the first trans belonging to Assam, primarily on five grounds. The arguments are based essentially on the violation of various articles in the Constitution, specifically , 16 and .

A transgender person will have the fundamental right to his/her identity’ and will be certified only if the District Magistrate recognizes this, after following due procedure with all the required documents.

The petition also challenges Section 7 of the Act, which provides that once a certificate of identity has been issued, if the transgender person wants to change their gender, it is possible only after the complete certification by the Chief Medical Officer of the institution, where the person can undergo surgery after the required permission. In addition to this, during this entire process, a ‘revised’ certificate will also be issued to the District Magistrate simultaneously.

Even though Section 3 of this Act prohibits any form of discrimination against transgenders and offers basic amenities in various sectors such as education, healthcare or job segment, there is official penalty or remedy for the breach of any of these provisions aforementioned in the Act, resulting in incoherence and ambiguity in the law.

It is evident that these provisions, prima facie seem to be facilitating the of transgenders in the society. However, in reality, it is simply digressing their position and demoralizing them to be who they really want to be. The society continues to force a conventional style of living, either as a man or a woman. There needs to be a substantial change in the thinking of the citizens in the country. No number of laws can substitute the backward and orthodox thinking of various citizens in India.


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