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India's transgender community wants more access to surgery

Transgender people in India face many obstacles in accessing quality health care, and especially when it comes to the high costs of gender affirmation surgery.

Pratiba Kumari is a transgender person from Delhi who has been saving for three years to undergo hormone replacement therapy and sex reassignment surgery, also known as gender affirmation surgery..

However, Kumari has encountered many obstacles along the way.

"The sheer cost of the process has made me look at government hospitals but there is little help. The environment is unfriendly and funds are a big obstacle," Kumari told DW.

Kumari is one of thousands of transgender people in India who find it tough to access surgery because government hospitals are not responsive, and private hospitals are often too expensive.

"Many of us are struggling. Government hospitals fail to offer a sensitive approach to the process and give us the runaround," Kumari said.

In 2014, India's Supreme Court recognized a third gender for the first time, paving the way for millions of transgender people to attain legal status, better social protection  and jobs.

In 2011, the Indian election commission also decided to allow transgender people to vote in general elections as a separate group.

But despite the ruling and even after courts overturned a British-era law in 2018, that criminalized same-sex relationships, social and legal discrimination against transgender people is still widespread in India.

Those in the community say there is still a long way to social acceptance, especially in the medical sector.

"Many trans-persons undergo gender distress caused by not having your body match your gender identity. But such surgeries are expensive and only few state governments like Chhattisgarh and Tamil Nadu have been helpful," Reena Rai, who organizes transgender beauty pageants in India, told DW.

Rai has been working for the empowerment of transgender women for several years, seeking to create a transphobic-free India and educate families.

"We don't put any stress on any of them when they compete in our pageants. But I can see that many of them want to undergo surgery and many times it is beyond their reach," adds Rai.

Accessing surgery is difficult

In India, sex reassignment surgery can cost up to $7,600 (€7,500) depending on which part of the country it is carried out in.

Some hospitals perform the procedure for a lower price. Metropolitan cities like Mumbai and Delhi are expensive, while in smaller cities the costs for such a procedure are more affordable.

According to the Transgender Persons (Protection of Rights) Act, 2019, the government is mandated to provide health facilities to transgender persons, including separate HIV surveillance centers and gender affirmation surgery.

The act also states that the government must provide hormone therapy and counselling, both before and after the surgery.

"Just passing an act with provisions is not enough. It is not enabling and a vast majority of trans people are struggling. They continue to be abandoned and discriminated," Shaine Soni, a former transgender beauty queen told DW.

Meet India's first transgender beauty queen

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Earlier this year, the government extended the benefits of its flagship healthcare insurance scheme, Ayushman Bharat, to transgender people under a new scheme that includes support for gender affirmation therapy.

A complicated procedure

However, many transgender people complain that the process is cumbersome as it entails registering with a portal to receive a nationally recognized "transgender certificate" and an identity card that permits such surgeries.

Only a few thousand people have been provided with the certification.

"Just look at the number of people who were given such cards. Over 90% of transgender people in this country are poor, uneducated and struggle," Manisha, a transgender woman, who has been trying to get a certificate, told DW.

"This bureaucratic red tape only adds to their woes," she added.

India's National Human Rights Commission said in  a report that many transgender people do not possess identity cards, voter cards or bank accounts because of "limited education, lack of awareness and poor exposure to the social, political and legal system."

The Commission also noted that the financial position of many transgender people is precarious and the right to an adequate standard of living is being denied to a large section of this community.

"We have a tough life and there is a battle at every stage. But we will raise our voices so that there is recognition. Healthcare is very important," Navya Singh, a transgender model and actor, told DW.

Experts involved in SRS procedures point out that the entire process is complex and requires sensitive handling, from specialized and lengthy hormone therapy, to the surgery itself, which involves psychological counselling both before and after.

"This is not a procedure which is easy. A lot of preparation is needed. State governments could begin by providing financial assistance to people looking forward to undergoing sex-change operations and easing the documentation complexities," Gopal Yadav, a plastic surgeon, told DW.

Edited by: Wesley Rahn 

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Dr. Narendra Kaushik

Experienced Surgeon for Transgender Surgery In India

Dr. Narendra Kaushik is a plastic, cosmetic and reconstructive surgeon who has 15 years of experience working with transgender patients . Dr. Kaushik is a strong supporter of transgender rights in India, and he has operated on thousands of trans men and women, both from India and abroad. He is the founder and director of New Delhi-based, Olmec – The Premier Transgender Surgery Institute, the first centre of its kind in India that is certified by the International Board of Medicine and Surgery (IBMS) . Dr. Kaushik offers the full range of gender reassignment surgery procedures including Vaginoplasty, FFS and FTM Top Surgery.

Dr. Kaushik has extensive medical training and maintains memberships in Indian and International professional organizations.

Education and Training

• Master of Chirurgiae (Mch) Plastic and Cosmetic Surgery – Seth G.S. Medical College & K.E.M. Hospital, Mumbai.
• Diplomate of National Board (DNB) Plastic and Cosmetic Surgery – Dayanand Medical College, Ludhiana.
• Master of Surgery (MS) General Surgery – Post Graduate Institute of Medical Sciences, Rohtak, Haryana.
• Bachelor of Medicine and Bachelor of Surgery (MBBS) – Post Graduate Institute of Medical Sciences, Rohtak, Haryana

Professional Memberships

• Indian Association of Aesthetic Plastic Surgeons (IAAPS), official body of International Society of aesthetic Plastic Surgeons (ISAPS).
• International Board of Medicine and Surgery (IBMS), USA
• Association of Plastic Surgeons of India (APSI)
• International Society of Aesthetic Plastic Surgeons (ISAPS)
• World Professional Association for Transgender Health (WPATH)
• Association of Hair Restoration Surgeons of India (AHRSI)
• Indian Medical Association (IMA)
• Directorate of Health Services (Government of Delhi) (DHS) (Reg No: DHS/NH/907)
• Delhi Medical Council (No: 24700)
• Medical Council of India (Mem No:15775)

Dr. Kaushik is well-known in the UK as he appeared in a BarcroftTV/BBC documentary about male-to-female surgery, and is also an Official Sponsor of Miss Transgender UK (2015, 2016.)

About 10% of Dr. Kaushik’s patients come from abroad and that number is rising. “The number of surgeries are increasing day by day,” said Dr. Kaushik. “This community is very well connected all over the world… If they are satisfied with their procedures in India, they spread the word.” ( theindiansubcontinent.com )

“I wanted affordable quality care from a highly experienced surgeon with high patient satisfaction from reference-able clients.” – Sue Pascoe, patient of Dr. Kaushik’s from the UK who received gender reassignment surgery with FFS and Breast Augmentation. ( India Times )

Dr. Kaushik has received numerous awards for his achievements in plastic and cosmetic surgery and hair transplant surgery, including an Award of Excellence in Plastic and Transgender Surgery at the All India Achiever’s Conference’s 68th National Seminar (2014.)

Dr. Kaushik performs the following surgeries for trans men and women.

Exact pricing can only be determined following a consultation. MTF Surgery

Facial Feminization & Hair Transplants in India

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FTM Top Surgery in India

Consultations with Dr. Kaushik Dr. Kaushik is available for phone and in-office consultations. Dr. Kaushik’s wait list for surgery dates is 2-4 weeks depending on the procedure(s).

“I wanted the very best and I got the very best.” – Retired British violinist Rosy Mica Kellett who decided to travel to India for male-to-female gender reassignment surgery based on glowing recommendations for her surgeon. It was also 14,000 pounds ($20,000) — less than half the cost in the UK. ( theindiansubcontinent.com )

Payment of Fees Dr. Kaushik accepts cash, credit cards (MasterCard, Visa, American Express and Discover), bank transfer, debit card and PayPal. Sorry, financing or insurance coverage are not available at this time.

Surgery Requirements Dr. Kaushik follows WPATH guidelines for surgery. You will require letters of recommendation from qualified healthcare providers. Additionally, patients must be physically fit and cleared for anesthesia.

Have questions for Dr. Kaushik? Contact the staff at Olmec by clicking the Send Inquiry button.

Detailed information about this provider is not yet available.

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Address: Olmec The Transgender Surgery Institute, A1/10, Outer Ring Road, Prashant Vihar, Delhi, 110085, IN

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Gender Incongruence

Right to health and gender-affirmative procedure in the transgender persons act 2019 in india, dipika jain.

1 Centre for Justice, Law and Society, Jindal Global Law School, O. P. Jindal Global University, New Delhi, India

The Transgender Persons Act, 2019 mandates that the government ensures medical facilities provide care to transgender persons (including for gender-affirmative procedures) and review medical curricula to address the health needs of transgender persons. However, despite the enactment of the law, many transgender and gender-variant persons in India struggle to access essential health care services. Legal provisions on health care strip them of their right to self-determination by setting up complex bureaucratic processes for the legal recognition of gender identity. In this article, I critically examine the health care provisions in the Act and the lack of efficient legal criteria for gender-affirming procedures, as well as the basic flaws in the medicalized model of legal recognition of trans persons' gender identity, which not only characterize the Act but also have serious implications for its implementation across the country.

Introduction

On April 15, 2014, a two-judge bench of the Supreme Court of India delivered a landmark judgment, which declared that self-determination of gender identity was a fundamental right protected by the Constitution of India. The National Legal Services Authority v. Union of India 1 (NALSA) decision was a watershed moment in Indian jurisprudence, and the judgment has had positive effects on transgender and gender-variant persons * by laying down a precedent for the protection of their constitutional rights. 2 3 4

From 2015 onwards, the Ministry of Social Justice and Empowerment began working on a Transgender Persons (Protection of Rights) Bill as a follow-up to the NALSA decision, after Tiruchi Siva (a Member of the Rajya Sabha from Tamil Nadu) presented a private member's Bill on the rights of transgender persons. 2 5 Despite reservations by transgender and gender-variant individuals and activists, as well as widespread protests against the legislation, the Transgender Persons (Protection of Rights) Bill was finally passed by Parliament in November 2019 with little debate and has been in force since January 2020 as the Transgender Persons (Protection of Rights) Act 2019 (Transgender Persons Act). 6 The Transgender Persons Act prohibits discrimination in health care services, mandating that the government ensures medical facilities provide care to transgender persons (including for gender-affirmative procedures) and review medical curricula to address the health needs of transgender people. These provisions are in line with the observations in NALSA, wherein the Supreme Court pointed out that discrimination against transgender persons is especially pronounced in fields such as health care.

However, despite the directives of the Supreme Court and the enactment of the Transgender Persons Act, many transgender and gender-variant people in India struggle to access essential health care services. This is mostly due to systemic issues such as discrimination based on their gender identity, inaccessibility of public health facilities in many parts of the country, lack of accountability and transparency in the delivery of services, or prohibitive costs of treatment in the private sector. 7 Although there is strong jurisprudence protecting the right to health—read into the fundamental right to life and liberty in Article 21 of the Constitution—it is a serious concern that transgender and gender-variant persons are prevented from exercising this right due to structural and legal barriers.

In this article, I first provide an overview of the legal recognition of transgender persons in India, particularly through the NALSA decision and subsequent legislative developments. I argue that the judicial decision, as well as the Transgender Persons Act and Rules, emphasizes the importance of access to health care and obligates the State to ensure that transgender persons are not discriminated against by the health care system. Furthermore, I lay out the challenges and critiques of the Transgender Persons Act, highlighting the provisions on health care and how they strip people of their right to self-determination by, for instance, setting up complex bureaucratic processes that transgender persons must navigate to obtain the legal recognition of their gender identity. I also examine the lack of legal criteria for gender-affirming procedures, as well as the basic flaws in the medicalized model of legal recognition of trans persons' gender identity, which not only characterize the Act but which also have serious implications for its implementation across the country. All references to “health rights” within the Transgender Persons Act lay bare the medicalization of transgender and gender-variant bodies that forms the basis for entitlement and access to health care services.

Health Rights within the Transgender Persons Act 2019

The Transgender Persons Act 2019 was enacted to provide for the protection of rights of transgender persons and their welfare and connected incidental matters. The Act not only prohibits discrimination against transgender persons on various grounds but also provides for a method for “recognition” of transgender identity through filing applications before jurisdictional District Magistrates for “certificates of identity.” The Act, additionally, casts obligations on governments and employers to undertake welfare measures for transgender persons, and to not discriminate against them in employment. The right to residence of transgender persons is also upheld by the Act, which prohibits the separation of transgender children from their parents, and explicitly outlines the rights of transgender persons to reside in the household where their parents/immediate family resides, to not be excluded from households and to use and enjoy household facilities free from discrimination. However, it needs to be noted that the right to residence should be expanded to affirm the freedom to live with other transgender and gender-variant persons, in hijra gharanas, and other choice-based residences outside the legal structures of adoption, marriage, and birth-based kinship.

However, as many activists and scholars have noted, certain sections of the Transgender Persons Act are extremely problematic and dilute the spirit of the NALSA judgment, which is rooted in the idea of self-determination. While Section 4 of the Act upholds “self-perception of gender identity,” Sections 5 and 6 directly contradict this by requiring transgender persons to apply to a District Magistrate for a certificate recognizing their gender identity. 2 Trans activists have argued that this requirement is transphobic and strips them of decisional autonomy—effectively outsourcing the determination of one's gender identity to the State. 8 9 10 Furthermore, Section 7 of the Act states that transgender persons who wish to be legally recognized either as male or female must provide the proof of having undergone gender-affirmative surgery. Such a requirement has been said to continue “to violate both the Constitutional spirit of the NALSA judgment as well as the principle of self-identification and determination laid out in the Transgender Persons Act itself.” 2 The Act is currently facing constitutional challenges from transgender activists in the Supreme Court on this ground and on the basis of the arbitrary hierarchy it creates between the different procedures for recognizing transgender persons vis-a-vis transgender women and men. 11 12

Despite the widespread backlash against the Act, the Central Government proceeded to introduce the draft Transgender Persons (Protection of Rights), Rules in April 2020, while the country was in lockdown due to the coronavirus disease 2019 (COVID-19) pandemic. 2 Many trans-led groups opposed this move and critiqued it as ill-timed, highlighting the lack of stakeholder consultation and deliberation preceding the introduction of the draft Rules. However, transgender activists and trans-led civil society organizations led efforts to hold virtual consultations and submitted two rounds of recommendations to the government. Due to these efforts, the final version of the Rules contains provisions that mitigate some of the violations resulting from the provisions of the Act. For example, transgender persons need not submit proof of surgery under Section 7 of the Act but only of “medical intervention,” which may be interpreted broadly. 2 However, even in the attempt to circumvent the restriction to surgical interventions for the purpose of obtaining an identity certificate, the Rules continue to only recognize medical interventions as valid for the purpose of granting identity documents that align with self-determined gender. This, therefore, invalidates and excludes non-medical gender-affirmative and transitionary processes.

A United Nations Development Program report from 2013 notes that transgender people face systemic discrimination in accessing health care services, including the refusal of care and being treated with contempt by health care service providers. 13 Moreover, many trans persons are unable to afford necessary medical procedures. During the pandemic, several people expressed concerns over COVID-19 treatment for trans persons; one person stated that “if someone from our community gets infected, we will be quarantined at male or female wards against our choice of gender identity. This will further traumatize an already infected transgender person.” 14 The Supreme Court in the NALSA judgment had taken note of the lack of access to health facilities for transgender persons. 15 The petitioner in the NALSA case made averments regarding the lack of special sero-surveillance centers for transgender persons, who are usually put in the category of men who have sex with men, to which the Court responded by directing the Central and State Governments to set up and operate such centers, especially for transgender persons. Additionally, to address issues pertaining to the lack of access to health care by transgender persons, the Court directed Central and State Governments to provide medical care to transgender people in hospitals.

The Transgender Persons Act, in aiming to uphold the directions of the Supreme Court in NALSA, framed Section 15 to provide health care facilities to transgender and gender-variant individuals. The Act calls for various measures to be performed by the “Appropriate Government,” including the setting up of separate human immunodeficiency virus sero-surveillance centers to conduct sero-surveillance for trans persons in accordance with the guidelines issued by the National AIDS Control Organization. The Act goes on to obligate the governments to run medical care facilities, including for the provision of gender-affirmative surgery and hormonal therapy, and counseling before and after gender-affirmative surgery and hormone therapy, and to bring out a health manual related to gender-affirmative surgery in accordance with the Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People by the World Profession Association for Transgender Health guidelines (WPATH).

Furthermore, the Act prescribes more long-term measures, which include the reviewing of medical curricula and research to enable doctors to address specific health concerns of transgender persons. It casts an affirmative obligation on governments to facilitate access to transgender persons in hospitals and other health care institutions and centers and to provide for the coverage of medical expenses by a comprehensive insurance scheme for the gender-affirmative procedure including hormonal therapy, laser therapy, or any other health issues of transgender persons. The welfare measures under the Rules also require the establishment of separate wards in hospitals and washrooms for transgender persons. Finally, the Act stipulates that whoever harms or injures or endangers the life, safety, health, or well-being, whether mental or physical, of a transgender person shall be liable to be punished with imprisonment for a term which shall not be less than 6 months, which may extend to 2 years and with a fine.

In 2016, as a response to the Transgender Persons (Protection of Rights) Bill introduced by the Ministry of Social Justice and Empowerment, Sampoorna Working Group (a trans and intersex-led network) submitted a letter with their recommendations. In the letter, they noted that “Health is a huge concern for trans and intersex people. We recommend that a separate chapter on health be brought into the bill that fully addresses trans and intersex health care as well as general health care for these communities.” 16 They further suggested that all public health facilities should follow the guidelines set out by the WPATH. A consolidated response by other trans-led groups such as Nirangal and Telangana Hijra Intersex Transgender Samiti also submitted that “Trans healthcare is absolutely critical for trans people to go on living their lives. Key services like counselling, hormone therapy, various gender affirming procedures have to be made mandatory services that are accessible to all underprivileged sections of the trans communities.” 17

There is sufficient evidence to suggest that a lack of access to such care can lead to immense psychological distress and that “social, psychological, and medical gender affirmation were significant predictors of lower depression and higher self-esteem while the absence of domains of affirmation were significantly associated with suicidal ideation.” 18 It thus becomes crucial to ensure that transgender and gender-variant people persons are able to fully exercise their right to health.

Despite the Transgender Persons Act containing several provisions pertaining to the health care of transgender persons, as outlined in the previous section, other provisions of the Act serve to institutionalize violations and oppressions experienced by transgender and gender-variant persons in their daily lives. For instance, the Transgender Persons Act provides for welfare schemes and penalties associated with the fundamental right to health of transgender persons, but the provisions relating to the “recognition of the identity of transgender persons” predicate the receipt of benefits under these schemes, as well as protection from discrimination on the receipt of a “certificate of identity” as a transgender person. The certificate is mentioned in the Act as a document, once issued, which “shall confer rights and be a proof of recognition” of a person's“identity as a transgender person.” It essentially follows that without this process of “recognition” through application to a District Magistrate, transgender persons would not be recognized as beneficiaries of the specific grounds under the anti-discrimination provisions, protections, and welfare measures aimed for transgender and gender-variant persons.

The receipt of a “certificate of recognition” is therefore a legally mandated requirement for transgender persons to be able to access health care services that are already elusive to these gender-variant persons. Additionally, the Act's narrow definition of family as those related to transgender persons by blood, kinship, adoption, or marriage severely limits who can consent on behalf of them, especially in situations involving a medical emergency. The legal criteria (or, in many cases, lack thereof) that, in turn, characterize the provision of gender-affirming surgeries and cause significant ambiguity in the medical processes required to make changes in legal identification documents of transgender persons are covered in the following section.

Legal Criteria for Gender Affirmation Surgery

In 2014, Justice Radhakrishnan noted in the NALSA judgment the need to “clarify the ambiguous legal status of gender affirmative surgery and provide gender transition and gender affirmative services (with proper pre-and post-operation/transition counselling) for free in public hospitals in various parts in India.” Before the NALSA judgment, Swati Bidhan Baruah had moved the Bombay High Court to safeguard her right to avail gender-affirmative surgery, against the threat posed by her parents to restrict her decision. The Court declared that there was no law in the country barring adults from undergoing “sex-change operations.” 19 Although Section 15 of the Act obligates the government to provide comprehensive insurance coverage of medical expenses, most of the country is yet to offer free or even subsidized medical care for transgender persons. 20 Only some states such as Tamil Nadu provide free gender-affirmative procedures, 21 while states such as Kerala have formulated a policy on the subject but have no government-run hospitals that actually provide gender affirmation surgeries. 22

As reported by the Hindustan Times in 2018, the Indian Council of Medical Research, which had been tasked with creating detailed national-level guidelines on transgender health, has thus far failed to come up with the document. 23 The medical curriculum in India also neither addresses health care for transgender persons nor sensitizes health care professionals on how to provide gender-affirmative care. The management of the health of transgender and gender-variant persons is, therefore, guided by Version 1 of the Indian Standards of Care (ISOC-1) for Persons with Gender Incongruence and People with differences in Sexual Development/Orientation, which was released in November 2020 by Wisdom Publishers, Delhi. ISOC-1 are based on and draw from the guidelines published by WPATH, and their release was initiated by the Association for Transgender Health in India at an international conference consisting of 200 professionals working in the field of transgender health care, in different specialties and subspecialties. 24 The WPATH Standards of Care Version 7 are the globally accepted standards that serve as the model template for gender-affirmative procedures, and these have been subsequently adopted by several countries on a domestic level through the introduction of legislations and guidelines for the provision of care for transgender and gender-variant persons. 25

The ISOC-1 seek to draw from the best practices in sync with the WPATH standards and contain detailed guidelines for the surgical care of transgender and “gender incongruent” persons consisting of several procedures, a public health approach to dealing with “gender incongruence” that proposes several institutional and structural changes to improve diversity in care and, finally, a parents support group section to guide parents of “gender incongruent” persons. 24 The document aspires to be the base document for addressing all concerns related to the health of transgender and gender-variant persons, keeping in mind the various key stakeholders that are involved in the provision of holistic and affirmative care to persons irrespective of their self-affirmed gender identity. 2

However, it is pertinent to note that even though the document purports to have been developed in consultation with transgender persons to account for regional differences in transgender health care and claims to be oriented to the particular needs of transgender and gender-variant persons residing in India, it is notable that none of the authors or mentioned contributors are transgender or gender-variant individuals. ISOC-1 have been developed by doctors and medical practitioners keeping in mind a limited target audience of the medical fraternity and lack the adequate representation and participation, making it an exclusionary document. This is also reflected in the lack of knowledge and conversation by transgender and gender-variant individuals on the publication of these standards of care. Any policies that dictate or guide health care provision for trans persons, including surgical, infrastructural, or social aspects of the same, require in-depth consultation, review, and deliberation with transgender and gender-variant stakeholders. Further, although the ISOC-1 have been developed to ensure that the medical professionals, as well as family and community members, are sufficiently sensitized to the needs of trans and gender-variant persons, especially in the case of those medical professionals carrying out gender-affirmative surgeries, these standards are yet to be adopted on a national scale so as to mandate adherence to them. These are guidelines that have been put forward by a non-statutory body or public institution, and the legitimacy of the same can, therefore, not be ensured in the absence of their adoption by the Indian Council of Medical Research. Consequently, in the absence of legislative frameworks that ensure that these standards and guidelines are adopted by all agencies and institutions, both public and private, working toward ensuring quality health care for trans and gender-variant persons, significant gaps and lacunae in the transition process will continue to exist.

Now that the Transgender Persons Act and Rules are in force, there is a clear process for changing an individuals' gender markers and name—although still subject to a complex bureaucratic web. 2 There are two separate processes for certification under the Transgender Persons Act. First, there is the process for being identified as a “transgender person” under Section 5 of the Act, which requires the person to apply in the format of Form-2 under the Rules to the District Magistrate of the jurisdiction in which they have been residing for at least the last 12 months. After verifying the correctness of the application—but without any medical examination—the Magistrate, under Rule 5, will issue a “certificate of identity” and “transgender identity card.” Both issued documents can be used to request a change in their other official documents, including their birth certificate, caste/tribe certificate, secondary education certificate, Aadhaar card, passport, ration card, and other illustrative documents listed under Annexure I of the Rules.

Second, under Section 7 of the Act, a person can apply to the District Magistrate for a revised certificate identifying their binary change in gender (male or female) and name, after undergoing “medical intervention.” The application, under Rule 6, should be made as per Form-1 of the Transgender Persons Rules and be accompanied by a certificate from the Medical Superintendent or Chief Medical Officer of the medical institution where the procedure was completed. After verifying the correctness of such certificate, as per Rule 7, the Magistrate will issue a revised “certificate of identity” and “identity card.” The person may, thereafter, use these revised documents to request a change in their official documents. Although the Transgender Persons Act and Rules replace all prior procedures for amendment of official documents, persons that have officially recorded the change in their gender prior to December 5, 2019 are not required to make an application under the new laws. There is currently also an impending constitutional challenge to Section 7 of the Act.

It must be noted that the trans movement strongly disagrees with the impetus of the Act, as it disrespects their autonomy and denies their right to self-determination of gender identity—in favor of determination by the State's bureaucratic machinery. 2 Despite claiming to uphold their right to self-identification, the web of bureaucratic procedures violates the NALSA judgment's call for self-affirmation and identification of gender without the prerequisite of gender-affirming surgery. 2

This “medical model” of recognition prescribed by the Act is conflated with the actual gender identity of individuals, who may not identify within the gender binary and whose gender-variant identity is essentially erased through this dangerous equivalence, as codified in law. It is known that transgender persons may undergo several procedures before deciding on undergoing gender affirmation surgery, may undergo only some of the procedures, or may choose not to go through it at all. Such decisions should ideally not affect the “identity” of the person in law, with entitlements to gender-variant persons being enforced independently from surgical status. Furthermore, the mandatory requirement of surgery to allow individuals to formally “change” their gender is not only likely to be exclusionary to gender-variant persons who do not identify within the legally prescribed binary, but it can also be hazardous for transgender persons who are living with a health condition that may be impacted by undergoing such a procedure. The health system, rather than facilitating access to health care services and self-identification, is adopting the position of a “gatekeeper” that helps to medicalize the legal discourse around gender identity. 26

In contrast to India, Argentina's 2012 law on gender identity upholds the right by all persons to the recognition of their gender identity, as well as free development of their person according to their gender identity 27 Transgender and gender-variant people can also request that their recorded gender be amended along with the changes in first name and image. Similarly, in June 2020, the Government of the Netherlands removed all gender markers from national identification documents, deeming them as “unnecessary.” 28

In addition to the dismantling of the bureaucratic web, the development and implementation of standard protocols or guidelines on health care for transgender persons, especially gender-affirmative procedures, is an important conversation to be had with the transgender and gender-variant movements. This continues to be an important step for ensuring that transgender and gender-variant persons have access to the best possible health care based on the best available science. The absence of legally enforceable guidelines has created a lacuna with respect to maintaining transparency, accountability, and safety in the delivery of such procedures, especially in cases of medical negligence such as that involving Anannyah Kumari Alex. 29 WPATH itself notes that most of its research and experience is based on North American and Western European perspectives and, therefore, stresses the importance of adapting its standards to other parts of the world while accounting for cultural relativity. 25

The right to health of transgender persons, as well as the barriers to accessing health care facilities by transgender and gender-variant individuals, has been covered and recognized by the Supreme Court as well as the legislature, through portions of the NALSA judgment as well as the Transgender Persons (Protection of Rights) Act 2019. However, on a closer examination of the judgment and the legislation, it is seen that till the recognition of transgender and gender-variant identities is divorced from documentary “evidence” and bureaucratic processes, transgender and gender-variant individuals will still face discrimination, stigma, and obstacles in realizing their rights and entitlements in practice. Furthermore, the sheer absence of standards and guidelines for gender-affirming procedures for transgender and gender-variant persons has significant implications on the quality of health care that is accessible. It is imperative to craft a legal framework in consultation with the transgender and gender-variant movement and stakeholder activists and individuals in India to overcome these structural barriers.

Acknowledgments

I would like to acknowledge the excellent research and editorial assistance of Siddharth Saxena, Kavya Kartik, and Rhea Malik. My gratitude to Kanmani Ray, Abhaya Tatavarti and Disha Choudhary for their close reading of the article and their helpful review. I am grateful to the peer reviewers for their excellent comments and editors of the journal, especially Dr. Kadam for his support. I am writing this piece from my location as a legal academic and I remain attentive to my privilege as a cis-gender academic. I am indebted to my friends in the trans movement in India from whom I have had the opportunity to learn and unlearn, and Dr. Aqsa for inviting me to contribute to this volume.

Funding Statement

Funding None.

Conflict of Interest None.

The author has used the term ‘transgender’ in this article mainly because the term ‘transgender’ was used by the Supreme Court in the NALSA judgment and by the Parliament in the Transgender Persons Act and Draft Rules. She is aware that the term ‘transgender’ is not inclusive and its meaning varies across regions, cultures, and nations. She recognizes that it does not fully represent the diversity and heterogeneity among transgender persons in India.

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Gender Affirming Surgeries and Minors – The Law in India

by Utsav Mukherjee† and Harsimran Duggal††

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Introduction

L GBTQIA+ — A sub-group that has always been a part of our society. Yet, for the longest time, law and regulation in India pertaining to most aspects of their existence was either conspicuously absent or downright disparaging. The tide turned on 15-4-2014 when the Supreme Court of India passed its landmark judgment in National Legal Services Authority v. Union of India. 1 The “third gender” was explicitly recognised in this judgment. The right to identify with one’s “self-identified” gender was also recognised. Then, in Navtej Singh Johar v. Union of India 2 , the draconian colonial legacy of Section 377 3 was abolished, by reading down the said provision to allow consensual sexual relationships for adults of all sexual orientations. Then, the Transgender Persons (Protection of Rights) Act, 2019 4 was brought into force. The latest development has been the controversial verdict on queer marriages.

One of the ways in which an individual may express their self-identified gender identity is by undergoing a “gender affirming surgery”. Adults freely exercise this right under the current legal regime in India. The law is, however, ambiguous in a situation where a minor, especially one currently in a state of adolescence, wishes to exercise this right. The authors seek to examine this peculiar issue in the present article. The authors also tread into the details of such surgeries, the contours of the Transgender Persons (Protection of Rights) Act, 2019 and international practices. Their intent is to present a holistic view on this rather complex and sensitive subject.

Gender affirming surgeries – Meaning and types

A gender affirming surgery also known as a sex reassignment surgery (SRS), is a medical procedure designed to assist individuals who identify with a gender that differs from the one assigned to them at birth. These surgeries aim to modify the physical features of the body in accordance with the individual’s self-identified gender, encompassing procedures such as genital reconstruction surgery.

Male-to-female (MTF) : It entails the conversion of male anatomy into female anatomy, which includes the removal of the penis, reshaping of genital tissue, and the creation of a vagina. After the surgery, female hormones are introduced to further sculpt the body’s characteristics.

Female-to-male (FTM) : Conversely, female-to-male surgery often faces greater challenges in achieving optimal results because of the complexity of fashioning a functional penis from the comparatively smaller clitoral tissue found in female genitalia. In addition to the genital modifications, surgical adjustments to the breasts are also necessary.

Legal landscape on transgenders in India

In 2019, the Indian Parliament enacted the Transgender Persons (Protection of Rights) Act, 2019 , with the primary aim of safeguarding the rights and promoting the welfare of individuals who are either born as transgender or identify as such. Section 2( k ) 5 of the Act defines a “transgender person” as an individual whose gender identity does not align with the gender assigned to them at birth and includes trans men and trans women, people with intersex variations and individuals with sociocultural identities such as kinner, hijra, aravani, and jogta.

To attain legal recognition as a transgender person, an individual who identifies as such can initiate the process by applying to the District Magistrate (DM) under Section 5 6 of the Act for the issuance of a certificate. Upon receipt of such an application, the DM is mandated to issue the applicant a certificate that officially acknowledges their transgender identity. Section 7 7 of the Act specifically addresses those who have undergone gender affirming surgeries. It allows them to seek a revised certificate reflecting their reaffirmed gender identity by making an application to the DM. The DM, upon satisfying the application’s accuracy, would issue a certificate that reflects the change in the individual’s gender identity.

Despite being a step in the right direction, the Act has faced criticism as it directly contradicts the 2014 NALSA 8 judgment, which supports self-identification for transgender individuals. However, the Act, instead of allowing transgender individuals to self-identify, mandates that they must obtain certification from the DM.

The law on gender affirming surgeries for minors in India

The legal position on gender affirming surgeries of minors in India is currently evolving. There is no specific statutory provision which discusses it. The High Courts of different States have, however, expressed their views on certain aspects of this issue.

In Arunkumar v. Inspector General of Registration 9 , the High Court of Madras noted that the mandate of the Supreme Court was not being followed. It thus directed the Government of Tamil Nadu to issue an order in compliance with the Supreme Court’s declaration. Consequently, the State Government issued GO(Ms) No. 355, dated 13-08-2019 10 . By way of this order, gender affirming surgeries on children and infants were banned for all purposes, except life-threatening situations. Interestingly, the order even cast an obligation of the Director of Medical Education in the State to ensure that the exemption for “life-threatening situations” was not misused.

The High Court of Delhi was faced with the question of the legality of gender affirming surgeries on children in Srishti Madurai Educational Research Foundation v. State (NCT of Delhi) 11 . The matter arose from a petition filed by S MERF against the Government of Delhi. The petition had been filed seeking a ban on sex selective surgeries on intersex children, which were not medically necessary. The petition also sought the implementation of guidelines specifying the conditions under which such surgeries could be performed on intersex children. Vide its order dated 27-7-2022, the Court recorded the recommendations made by the Delhi Commission for Protection of Child Rights (D CPCR ), which were brought to its notice by the petitioner. The D CPCR had recommended that the Government of Delhi should ban such surgeries and only allow them in cases where a child’s life was at risk. The Court disposed of the petition by granting time to the Government of Delhi to reach a decision on the D CPCR ’s recommendations.

More recently, the High Court of Kerala also dealt with this issue, in X v. Director of Health Services 12 . The petitioners had approached the Court seeking permission to have a genital reconstructive surgery performed on their intersex child, to raise the child as a female. The Court took note of the fact that the minor child was in no position to give consent. Therefore, the Court did not allow the petitioners’ prayers and rather thought it fit to constitute a State-Level Multidisciplinary Committee consisting of both medical and psychological experts to decide on the issue. It was directed that the Committee would decide whether a surgery was required within 2 months, if there were any threat to the life of the child. Further, the Government was directed to issue an order regulating sex selective surgeries on infants and children within three months.

The abovementioned judgments and State orders make it clear that gender affirming surgeries cannot be performed on infants, since they are in no state to give consent. However, they are all silent on whether minors who are not infants can voluntarily opt for such surgeries.

International practices

Last year, the World Professional Association for Transgender Health recommended that the age requirements for gender affirming surgeries be lifted. In most countries, the age eligibility for such surgeries is still 18 years. Some countries have lowered these limits. It is 16 in Scotland and 17 in England. In the United States, at least 15 States do not allow persons under the age of 18 years to undergo gender affirming surgeries.

Authors’ analysis and views

The question that now arises is whether minors would be considered to give valid consent to gender affirming surgeries under the law in India. The age for consent may differ across spectrums. Legal liability may accrue to minors of a certain age, while others may escape the same. For instance, children above the age of 7 years may be charged with crimes in many cases, as they are considered mature enough to have the “mens rea” for an offence. If that is the case, one may question why minors have attained the age of puberty may not be able to give consent to a gender affirming surgery. Alternatively, it may be argued that not all minors attain maturity at the same age. Studies have shown that notions of gender may change with time and some adolescents may even have temporary feelings of identification with another gender. However, the consequences of a gender affirming surgery are permanent. Most importantly, reproductive capacity is lost.

It is about time that appropriate policies be enforced across States in this regard as well, in India, considering the unique circumstances of Indian States, since this is a State subject. The same would reduce ambiguity on the subject and strike a balance between L GBTQIA+ rights and the appropriate age for surgeries with permanent consequences.

†Advocate. Author can be reached at < [email protected] >.

††Advocate. Author can be reached at < [email protected] >.

1. (2014) 5 SCC 438 .

2. (2018) 10 SCC 1 .

3. Penal Code, 1860, S. 377 .

4. Transgender Persons (Protection of Rights) Act, 2019 .

5. Transgender Persons (Protection of Rights) Act, 2019, S. 2( k ) .

6. Transgender Persons (Protection of Rights) Act, 2019, S. 5 .

7. Transgender Persons (Protection of Rights) Act, 2019, S. 7 .

8. (2014) 5 SCC 438 .

9. 2019 SCC OnLine Mad 8779 .

10. Government of Tamil Nadu, G.O. (Ms) No. 355 (13-8-2019).

11. 2022 SCC OnLine Del 5003 .

12. 2023 SCC OnLine Ker 6244 .

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Govt plans free ops for gender reassignment of trans people

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Support for Marginalized Individuals for Livelihood & Enterprise

National portal for transgender persons, department of social justice and empowerment.

The Ministry of Social Justice and Empowerment has formulated a National level umbrella scheme namely “SMILE - Support for Marginalized Individuals for Livelihood and Enterprise”, which includes two sub-schemes - ‘Comprehensive Rehabilitation for Welfare of Transgender Persons’ and ‘Comprehensive Rehabilitation of persons engaged in the act of Begging’. This umbrella scheme would cover several comprehensive measures including welfare measures for both transgender persons and persons who are engaged in the act of begging with focus extensively on rehabilitation, provision of medical facilities, counseling, education, skill development, economic linkages etc with the support of State Governments/UTs/Local Urban Bodies, Voluntary Organizations, Community Based Organizations (CBOs) and institutions and others.

Notification

Comprehensive rehabilitation for welfare of transgender persons, tg certificate & id card, other welfare measures, skill training, composite medical health, garima greh: shelter homes, recognition & appreciation, social media engagements.

Geotagged Garima Greh

Garima Greh’s have been geotagged for the convenience of transgender community to easily locate the shelter homes across the Country. By clicking on the Garima Greh on the map, the exact location of the shelter home can be accessed. Any transgender person holding a TG certificate & ID card from the National Portal for Transgender person can visit the shelter home for their holistic development.

Number of Certificate Issued

Number of identity card issued, number of state/ut participated, messages for the abhiyaan.

Some words about the Nasha Mukt Bharat Abhiyaan

Dr Virendra Kumar

Shri A. Narayanaswamy

Through SMILE scheme, the Ministry aims to eradicate the differential treatment prevelant in the society towards transgender persons and persons involved in the act of beggary. The welfare measures have been tailor made keeping in view the varied needs of the community to achieve social justice & to ensure their rights are safeguarded.

Shri. Saurabh Garg

The SMILE scheme intends to mainstream the transgender persons & persons involved in the act of beggary by creating an enabling environment for their holistic development. Keeping in view their psycho-social, socio-economic and health issues, it is paramount that the stakeholders converge their efforts to generate awareness among the masses to build an inclusive society.

Smt. Radhika Chakravarthy

Online training session on national portal for transgender persons for j&k and ladakha.

Resource Persons :

Sh. Suresh Manekar, Sr. Project Associate INFLIBNET, Ahmedabad

11:00 am onwards

Participants :

District Collectors/Magistrates of all the Districts of Jammu & Kashmir and Ladakh

Moderator :

Dr. R. Giriraj, Dy. Director, NISD

Social Defence for Social Justice in India

Dr. Sanjai Bhatt Former HOD, Delhi School of Social Work, Delhi University

3.30 PM – 5:30 PM

Students of Central University of Tamil Nadu

Inaugurated by :

Sh. Rajesh Makkar, Director, NISD

Provisions of TG Act, 2019 and Rules 2020

Prof. Rajesh Kumar, HOD Adult & Continuing Education and Extension, Delhi University

03:30 onwards

Students of Social; Work Central University Tamil Nadu

Dr. R. Giriraj, Deputy Director, NISD

Course Organiser :

Ms. Shweta Sehgal, Consultant, NISD

Provisions of Transgender Persons (Protection of Rights) Act, 2019 and Rules 2020

Mx. Rachna Mudraboyian, Individual Expert, collaboration with Jayaprakash Institute of Social Change, Kolkata, West Bengal

Students of Social Work

Sensitization Program on Provisions of Transgender Persons Act, 2019

Ms. Rachana Mudraboyina

TG Community of Telangana

Dr. R. Giriraj, DD (T&G), NISD

Meeting Link :

Meeting Number :

2515 953 5532

The Transgender Persons Act, 2019 & Rules 2020 and National Portal for Transgender Persons

MX. Swati Bidhan Baruah, Sr. Advocate, High Court of Guwahati and Sh. Suresh Manekar, Sr. Project Associate, Inflibnet

District Magistrates and officials of Assam

2513 358 4301

Sensitization of District Magistrates of Punjab on National Portal for Transgender Persons

Team Inflibnet

All District Magistrates of Punjab and concerned staff

Refresher training Program on National Portal for Transgender Persons for Madhya Pradesh

All District Magistrates of Madhya Pradesh and concerned staff

Refresher training Program on National Portal for Transgender Persons for Karnataka

All District Magistrates of Karnataka and concerned staff

Refresher Training Program on National Portal for Transgender Persons for Maharashtra

All District Magistrates of Maharashtra and concerned staff

Online Training session on National Portal for Transgender Persons for Goa

Resource Person :

Dr. Abhishek Kumar, INFLIBNET, Ahmedabad

District Collectors/Magistrates of all the Districts of Goa

Course Coordinator :

Online Training session on National Portal for Transgender Persons for Arunachal Pradesh

Sh. Suresh Manekar, INFLIBNET, Ahmedabad

03:00 pm onwards

District Collectors/Magistrates of all the Districts of Arunachal Pradesh

Online Training session on National Portal for Transgender Persons

District Collectors/Magistrates of all the Districts of Mizoram

Applications are invited from interested & eligible transgender persons for:

(1)Scholarships

(2)Skill development training under the scheme, Support for Marginalized Individuals Livelihood & Enterprise (SMILE).

• Interested candidates may register at National Portal for Transgender Persons (https://transgender.dosje.gov.in) (if not registered already) and then apply through the login credentials used to issue the Transgender certificate & Identity Card.
• For more information about eligibility criteria, requisite documents and process of application visit the Portal. For any further queries: Call: 011-23386981 Email: [email protected]

FIND YOUR MP

Legislatures

Bills & acts.

A note of gratitude to Mr. N. Vaghul

• Bills & Acts
• Bills Parliament
• Rules and Regulations

Draft Transgender Persons (Protection of Rights) Rules, 2020

Key Features 

• The Draft Rules specify the process by which transgender persons may apply for a Certificate of Identity and the manner in which such a certificate will be issued to them.  
• A Certificate of Identity recognises a person as transgender and will be issued by a District Magistrate.  The application for the Certificate of Identity must include an affidavit, application form and psychologist’s report.  
• A District Magistrate may only issue a Certificate to an applicant who is a resident of the area under his jurisdiction for a period of one year as on the date of the application.

Issues and Analysis

• The Draft Rules require an application for a Certificate of Identity to include a psychologist’s report.  Since persons have the right to self-perceive their gender identity, the purpose of the psychologist’s report is unclear.  
• The Draft Rules state that a District Magistrate may only issue a Certificate of Identity to an applicant who has been a resident of the area under the jurisdiction of the District Magistrate for a period of one year.  However, experts have observed that the transgender community faces ostracisation, unemployment and homelessness.  It can be argued that this would make it difficult for transgender persons to establish roots for a continued period of at least one year before submitting an application  
• The Act delegates welfare measures for transgender persons to be prescribed by Rules.  The Draft Rules require government departments to review existing schemes and welfare measures to protect the rights and interests of transgender persons.   However, the Draft Rules do not detail out the welfare measures.

In 2014, the Supreme Court recognised a transgender person’s right to self-identify their gender as male, female or the third gender. [1] Further, the Court directed central and state governments to grant legal recognition to transgender persons, address social stigma and discrimination faced by them, and provide social welfare schemes for them.

The Transgender Persons (Protection of Rights) Act, 2019 was passed on November 26, 2019. [2]    It allows persons to self-perceive their gender identity, provides for the identification of transgender persons, and confers them with certain rights and benefits.  Following the notification of the Act, the government circulated the Draft Rules to the Act on April 16, 2020 for public feedback.  The Draft Rules specify the manner, form and process by which persons may be recognised as transgender.

KEY FEATURES

Table 1 includes a comparison between the rule-making powers specified under the Transgender Persons (Protection of Rights) Act, 2019 and the specification in the Draft Rules of those provisions. 

Table 1: Comparison between the provisions of the Act and Draft Rules

Sources : Transgender Persons (Protection of Rights) Act, 2019, Draft Transgender Persons (Protection of Rights) Rules, 2020; PRS.

KEY ISSUES AND ANALYSIS

Requirement of psychologist’s report to apply for a Certificate of Identity 

The Transgender Persons (Protection of Rights) Act, 2019 states that a person who is recognised as ‘transgender’ shall have the right to ‘self- perceive’ their gender identity. 2   Once a person identifies as transgender, they may apply for a Certificate of Identity issued by a District Magistrate.  Such a certificate will be proof of their identity as ‘transgender’ and confer rights and benefits under the Act.  The Draft Rules specify the manner, form and process by which persons may apply for a certificate, and in which the certificate will be issued.  The Draft Rules state that to apply for a Certificate, applicants must provide (i) an application form, (ii) an affidavit declaring themselves to be transgender, and (iii) report from a psychologist of a government hospital.   Based on these documents, the District Magistrate may certify the applicant as transgender.  This raises the following three issues. 

Purpose of psychologist’s report is unclear

The Act specifies that persons have the right to self-perceive their gender identity. 2   This implies that the gender identity of a person cannot be determined by anyone other than themselves.  The Certificate of Identity acts as an acknowledgement of a person’s self-perceived identity by the state.  It is unclear why the Draft Rules require a psychologist’s report as part of an application for a Certificate of Identity as transgender.  Note that as per the process stated in the Act, when issuing the Certificate, the District Magistrate does not need to ‘evaluate’ the person’s gender.  Instead, his role is to issue a Certificate to any person that self-identifies as transgender.  Since an evaluation is not required for issuing a Certificate, it is unclear why a psychologist’s report is necessary in the application process. 

Note that the Standing Committee on Social Justice and Empowerment (2016) that examined the Bill when introduced in Parliament observed that the presence of medical professionals in the panel for determining the certification of a person as transgender increases the risk that the applicant’s gender identity will be assessed on a medical, biological, or psychological basis.  [3]   According to the Committee, this would violate the right of transgender persons to self-identify their gender, as held by the Supreme Court in  National Legal Services Authority vs. Union of India  (2014). 1   

Content of the psychologist’s report not specified

The Draft Rules do not specify the content of the psychologist’s report that is to be submitted when applying for a Certificate of Identity.  If a person can declare themselves as transgender in the affidavit provided in their application, it is unclear what additional information will be provided in the psychologist’s report.  

Shortage of clinical psychologists

The Draft Rules require that the report should be from a psychologist of a government hospital.   According to the National Human Rights Commission, as of 2019 there are 898 psychologists serving in government and private hospitals whereas the demand for clinical psychologists is 20,250. [4]   Note that the number of persons who do not identify as ‘male’ or ‘female’ but as ‘other’ stands at 4,87,803 (0.04% of the total population), as per the 2011 Census. [5]   It may be argued that the shortage of psychologists in the country will make it difficult for transgender persons to obtain psychologist reports when applying for certification. 

Typically, professionals who have the statutory authority to issue certificates are licenced and regulated by statutory bodies.  For example, practicing doctors are regulated by the Medical Council of India, and similar bodies regulate dentists, chartered accountants and architects. [6]   Psychologists are not certified or regulated by any statutory body.  Therefore, there could be an inconsistency across government hospitals as to which persons qualify to provide reports for the purpose of obtaining a Certificate of Identity. 

Applicant to be a resident of the area for one year before submitting application

The Draft Rules state that a District Magistrate may only issue a Certificate of Identity to an applicant who has been a resident of the area under his jurisdiction for a period of one year as on the date of the application.  It may be argued that this provision increases the burden on transgender persons to apply for a Certificate of Identity. 

The Expert Committee on Issues Related to Transgender Persons (2014) observed that the transgender community faces ostracisation from family, unemployment and homelessness. [7]     Therefore it may be difficult for transgender persons to prove residence for a continued period of at least one year before submitting an application.  

Various other licences and certificates do not have a one-year residency requirement.  The notice for a civil marriage requires at least one of the parties to the marriage to have resided in the area for at least 30 days. [8]   Also, there is no minimum time period for which a person must reside in the area when applying to a Road Transport Organisation for issuance of a driving licence. [9]  

Purpose for collection and sharing of certain data not specified 

The application form for a Certificate of Identity requires the applicant to submit information such as education qualification, name of school or college, whom they live with, and sources of income.  It is unclear why such information is required for the certification of a person as transgender. 

Further, the application form requires that information provided by applicants will be kept confidential and may only be shared with central or state security agencies.  It does not state the purpose for which the information will be shared.  It also does not identify the security agencies with whom such information can be shared. 

Penalty for making a false application

The Draft Rules require an applicant to submit an affidavit declaring their identity as a transgender person, along with their application.  However, the Draft Rules also specify a penalty against persons who make an application for Certificate of Identity with an intention to falsely obtain the status of a transgender person.  Since persons have the right to self-perceive their gender identity, it is unclear on what basis authorities may determine whether a person is filing a false application.  Note that the Act does not specify a penalty for making a false application for a Certificate of Identity. 2    

Welfare measures for transgender persons not specified 

The Act states that welfare measures to protect the rights and interests of transgender persons and facilitate their access to welfare schemes may be prescribed in the Rules. 2   The Draft Rules state that the appropriate government must: (i) review existing welfare schemes to include transgender persons, (ii) ensure welfare schemes, programmes and subordinate legislation are non-discriminatory towards transgender persons, (iii) take adequate steps to prohibit discrimination towards transgender persons, and (iv) educate transgender persons on benefits available to them.  These details have currently not been specified in the Draft Rules.  

The Draft Rules also state that the appropriate government must provide separate washrooms in establishments within two years from the notification of the rules.  As per the Act, an “establishment” includes central and state government funded or controlled bodies, and any other company, body corporate, association or body of individuals, firm, society, trust, agency, or institution.  Given that the definition of establishment is broad, it may be argued that it is not feasible for the appropriate government to provide separate washrooms for transgender persons in all private and public establishments. 

Process for determination of gender after sex-reassignment surgery is unclear

The Act provides for transgender persons that undergo sex-reassignment surgeries to apply for a revised Certificate of Identity and identify as male or female. 2   The Draft Rules specify the manner in which a person who has undergone surgery can apply for a revised Certificate. This includes providing a medical certificate and application form.  However, the application form provided in the Draft Rules for a revised Certificate only allows the applicant to select ‘transgender’ as their gender of choice and not ‘male’ or ‘female’.  This seems to be a drafting error as the revised identity card issued on the basis of such application declares the person’s gender as ‘male’ or ‘female’. 

[1]  National Legal Services Authority vs. Union of India [(2014) 5 SCC 438].

[2]   The Transgender Persons (Protection of Rights) Act, 2019 .

[3]  Report no. 43, Standing Committee on Social Justice and Empowerment:  The Transgender Persons (Protection of Rights) Bill, 2016 , Lok Sabha, July 7, 2017.

[4]  “Despite efforts huge gap remains between the requirements and availability of facilities in the mental healthcare sector, says NHRC Chairperson, Mr. Justice H.L. Dattu”, Press Information Bureau, Ministry of Home Affairs, August 7, 2019.

[5]   Primary Census Abstract Data for Others (India & States/UTs), Census 2011.

[6]   The National Medical Commission Act, 2019 .

[7]   Report of  Expert Committee on the Issues relating to Transgender Persons , Ministry of Social Justice and Empowerment, January 27, 2014.

[8]   The Special Marriage Act, 1954 . 

[9]   Motor Vehicles Act, 1988 . 

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