A FAILED ATTEMPT AT TRANSGRESSING THE GENDER BINARY: THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019 AND THE DRAFT TRANSGENDER PERSONS (PROTECTION OF RIGHTS) RULES, 2020
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Abstract
The journey of questioning, discovering and expressing one’s identity is regarded to be the most significant part of one’s life. For some, limited public knowledge and understanding of sexual orientation together with the lack of sufficient legislative safeguards causes this path to be more daunting than it is for others. Over the last decade, several attempts have been made to transgress from the heteronormative social order and gender binary prevalent in India. In 2014, the Supreme Court of India passed a landmark judgment whereby it recognized the existence of a third gender, affirmed their fundamental rights and acknowledged their hardships, for the very first time. In its judgment, in National Legal Services Authority v. Union of India (‘NALSA Case’), the Apex Court called upon the central and state legislatures to make appropriate laws to safeguard the rights and interests of this third gender. The NALSA Case was followed by the introduction of three legislative bills for the empowerment of transgender persons and for the protection of their rights in 2014, 2016 and 2019, respectively. In order to create an LGBTQIA+ friendly environment in the country, it is imperative to scrutinize the legislature’s efforts in creating policies that affect different aspects of the life and environment of transgender persons. This article analyses the NALSA Case, the legislative history, various recommendations of an expert and standing committee and the events that ultimately led to the passing of the Transgender Persons (Protection of Rights) Act, 2019 (‘2019 Act’) and the circulation of the Draft Transgender Persons (Protection of Rights) Rules, 2020 (‘Draft Rules’) in order to highlight their shortcomings and the legislative lacunae with which they are burdened.
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