LGBT Rights – Transgender Bill, Sec. 377, etc.

No medical examination for Trans Persons


From UPSC perspective, the following things are important :

Prelims level : Not Much

Mains level : Trans-persons rights

After facing flak from the transgender community, the Centre has done away with the requirement of a medical examination for trans persons applying for a certificate of identity in its latest draft rules framed under the Transgender Persons (Protection of Rights) Act, 2019.

Practice question for mains:

Q.What are the salient features of the Transgender Persons (Protection of Rights) Act, 2019? Also, discuss the loopholes.

What are the new rules?

  • The draft of the Transgender Persons (Protection of Rights) Rules, 2020, published stated that a District Magistrate would issue a transgender identity certificate and card based on an affidavit by the applicant, but without any medical examination.

Issue with the earlier draft

  • An earlier draft of the rules had mandated a report from a psychologist along with the affidavit for the application.
  • The transgender rights movement had opposed this, as it was seen as going against a trans person’s right to self-identification, which was upheld by the Supreme Court in 2014.

Change of gender is permissible

  • In case of change of gender, the application for new identification would require a certificate from the medical superintendent or chief medical officer of the medical institution where the applicant the surgery.
  • For this, the Centre has proposed a series of welfare schemes, including making at least one hospital in each State equipped to provide safe and free gender-affirming surgery and counselling and hormone replacement therapy among others.

Back2Basics: The 2014 Judgement on Trans-persons Rights

  • The Supreme Court in 2014 recognized transgenders as the third gender in a landmark ruling, saying it was addressing a “human rights issue”.
  • The ruling came after it heard a PIL filed by National Legal Services Authority (Nalsa) demanding equal rights.
  • The judgements said that non-recognition of gender identity amounts to discrimination under Article 15, which prohibits discrimination on the basis of sex.
  • The spirit of the constitution is to provide equal opportunity to every citizen to grow and attain their potential, irrespective of caste, religion or gender said justices K.S. Radhakrishnan and A.K. Sikri in their ruling.
  • Self-identification as man or woman, irrespective of sexual reassignment surgery, was now protected by law.
  • The judges said rights such as the right to vote, own property, marry and to “claim a formal identity” would be made available “more meaningfully” to the transgender community as a result of the ruling.

Transgender Persons (Protection of Rights) Bill, 2019

The Parliament passed the Transgender Persons (Protection of Rights) Bill, 2019.

Key Features

  • Definition of a transgender person: The Bill defines a transgender person as one whose gender does not match the gender assigned at birth. It includes transmen and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar and hijra.
  • Certificate of identity: A transgender person may make an application to the District Magistrate for a certificate of identity, indicating the gender as ‘transgender’.
  • Prohibition against discrimination: The Bill prohibits discrimination against a transgender person, including denial of service or unfair treatment in relation to:
    • Education, employment, healthcare.
    • Access to or enjoyment of goods, facilities, opportunities available to the public.
    • Right to movement, right to reside, rent, or otherwise occupy property.
    • Opportunity to hold public or private office.
    • Access to a government or private establishment in whose care or custody a transgender person is.
  • Health care
    • The Bill also seeks to provide rights of health facilities to transgender persons including separate HIV surveillance centres, and sex reassignment surgeries.
    • It also states that the government shall review medical curriculum to address health issues of transgender persons, and provide comprehensive medical insurance schemes for them.
  • It calls for establishing a National Council for Transgender persons (NCT).
  • Punishment: It states that the offences against transgender persons will attract imprisonment between six months and two years, in addition to a fine.

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