In April 2020, the Ministry of Social Justice and Empowerment released the Draft Transgender Persons (Protection of Rights) Rules, 2020 under the Transgender Persons (Protection of Rights) Act, 2019 for public comments. These rules seek to operationalise the Act’s provisions on the process of self-identification of transgender persons and also contain provisions regarding the socio-economic development of transgender persons in India. In response to the Ministry’s call for public comments, this submission critically analyses the Rules from a legal perspective.
The submission comprises overall recommendations regarding the process of public consultation and the need for greater involvement of State Governments and also provides a detailed clause-by-clause analysis of the Rules. The recommendations stress on the need to actively involve members of the transgender community in the consultation process. It also suggests postponing the consultation process in light of the ongoing restrictive measures due to the ongoing Covid-19 pandemic that have disproportionately impacted the transgender community and the pending constitutional challenges to the validity of the Transgender Persons (Protection of Rights) Act, 2019 in the Supreme Court. Given the constraints of the parent Act, the clause-by-clause recommendations are geared towards making the rules compatible with the constitutional right to self-identification as far as possible. It further suggests changes to simplify the process of issuing the certificate of identity, making the process compatible with the right to privacy and introducing greater accountability and specificity in the welfare provisions aimed at the socio-economic development of transgender persons in India.