Article published online: 2022-07-14

THIEME
Special Topic 205

Right to Health and Gender-Affirmative

Procedure in the Transgender Persons Act 2019
in India
Dipika Jain1

1 Centre for Justice, Law and Society, Jindal Global Law School, O. P. Address for correspondence Dipika Jain, Centre for Justice, Law and
Jindal Global University, New Delhi, India Society, Jindal Global Law School, O. P. Jindal Global University, N-168,
Third Floor, Greater Kailash 1, New Delhi-110048, India
Indian J Plast Surg 2022;55:205–210. (e-mail: [email protected]).

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

Introduction rights of transgender persons.2,5 Despite reservations by

transgender and gender-variant individuals and activists,
On April 15, 2014, a two-judge bench of the Supreme Court of as well as widespread protests against the legislation, the
India delivered a landmark judgment, which declared that Transgender Persons (Protection of Rights) Bill was finally
self-determination of gender identity was a fundamental passed by Parliament in November 2019 with little debate
right protected by the Constitution of India. The National and has been in force since January 2020 as the Transgender
Legal Services Authority v. Union of India1 (NALSA) decision Persons (Protection of Rights) Act 2019 (Transgender Persons
was a watershed moment in Indian jurisprudence, and the Act).6 The Transgender Persons Act prohibits discrimination
judgment has had positive effects on transgender and gen- in health care services, mandating that the government

der-variant persons by laying down a precedent for the ensures medical facilities provide care to transgender per-
protection of their constitutional rights.2–4 sons (including for gender-affirmative procedures) and re-
From 2015 onwards, the Ministry of Social Justice and view medical curricula to address the health needs of
Empowerment began working on a Transgender Persons transgender people. These provisions are in line with the
(Protection of Rights) Bill as a follow-up to the NALSA observations in NALSA, wherein the Supreme Court pointed
decision, after Tiruchi Siva (a Member of the Rajya Sabha out that discrimination against transgender persons is espe-
from Tamil Nadu) presented a private member’s Bill on the cially pronounced in fields such as health care.

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206 Transgender Persons Act 2019 in India Jain

However, despite the directives of the Supreme Court and expanded to affirm the freedom to live with other transgen-
the enactment of the Transgender Persons Act, many trans- der and gender-variant persons, in hijra gharanas, and other
gender and gender-variant people in India struggle to access choice-based residences outside the legal structures of
essential health care services. This is mostly due to systemic adoption, marriage, and birth-based kinship.
issues such as discrimination based on their gender identity, However, as many activists and scholars have noted,
inaccessibility of public health facilities in many parts of the certain sections of the Transgender Persons Act are extreme-
country, lack of accountability and transparency in the ly problematic and dilute the spirit of the NALSA judgment,
delivery of services, or prohibitive costs of treatment in which is rooted in the idea of self-determination. While
the private sector.7 Although there is strong jurisprudence Section 4 of the Act upholds “self-perception of gender
protecting the right to health—read into the fundamental identity,” Sections 5 and 6 directly contradict this by requir-
right to life and liberty in Article 21 of the Constitution—it is ing transgender persons to apply to a District Magistrate for a
a serious concern that transgender and gender-variant per- certificate recognizing their gender identity.2 Trans activists
sons are prevented from exercising this right due to struc- have argued that this requirement is transphobic and strips
tural and legal barriers. them of decisional autonomy—effectively outsourcing the
In this article, I first provide an overview of the legal determination of one’s gender identity to the State.8–10
recognition of transgender persons in India, particularly Furthermore, Section 7 of the Act states that transgender
through the NALSA decision and subsequent legislative persons who wish to be legally recognized either as male or
developments. I argue that the judicial decision, as well as female must provide the proof of having undergone gender-
the Transgender Persons Act and Rules, emphasizes the affirmative surgery. Such a requirement has been said to
importance of access to health care and obligates the State continue “to violate both the Constitutional spirit of the
to ensure that transgender persons are not discriminated NALSA judgment as well as the principle of self-identifica-
against by the health care system. Furthermore, I lay out the tion and determination laid out in the Transgender Persons
challenges and critiques of the Transgender Persons Act, Act itself.”2 The Act is currently facing constitutional chal-
highlighting the provisions on health care and how they lenges from transgender activists in the Supreme Court on
strip people of their right to self-determination by, for this ground and on the basis of the arbitrary hierarchy it
instance, setting up complex bureaucratic processes that creates between the different procedures for recognizing
transgender persons must navigate to obtain the legal recog- transgender persons vis-a-vis transgender women and
nition of their gender identity. I also examine the lack of legal men.11,12
criteria for gender-affirming procedures, as well as the basic Despite the widespread backlash against the Act, the
flaws in the medicalized model of legal recognition of trans Central Government proceeded to introduce the draft Trans-
persons’ gender identity, which not only characterize the Act gender Persons (Protection of Rights), Rules in April 2020,
but which also have serious implications for its implemen- while the country was in lockdown due to the coronavirus
tation across the country. All references to “health rights” disease 2019 (COVID-19) pandemic.2 Many trans-led groups
within the Transgender Persons Act lay bare the medicaliza- opposed this move and critiqued it as ill-timed, highlighting
tion of transgender and gender-variant bodies that forms the the lack of stakeholder consultation and deliberation pre-
basis for entitlement and access to health care services. ceding the introduction of the draft Rules. However, trans-
gender activists and trans-led civil society organizations led
efforts to hold virtual consultations and submitted two
Health Rights within the Transgender
rounds of recommendations to the government. Due to these
Persons Act 2019
efforts, the final version of the Rules contains provisions that
The Transgender Persons Act 2019 was enacted to provide for mitigate some of the violations resulting from the provisions
the protection of rights of transgender persons and their of the Act. For example, transgender persons need not submit
welfare and connected incidental matters. The Act not only proof of surgery under Section 7 of the Act but only of
prohibits discrimination against transgender persons on “medical intervention,” which may be interpreted broadly.2
various grounds but also provides for a method for “recogni- However, even in the attempt to circumvent the restriction
tion” of transgender identity through filing applications to surgical interventions for the purpose of obtaining an
before jurisdictional District Magistrates for “certificates of identity certificate, the Rules continue to only recognize
identity.” The Act, additionally, casts obligations on govern- medical interventions as valid for the purpose of granting
ments and employers to undertake welfare measures for identity documents that align with self-determined gender.
transgender persons, and to not discriminate against them in This, therefore, invalidates and excludes non-medical gen-
employment. The right to residence of transgender persons der-affirmative and transitionary processes.
is also upheld by the Act, which prohibits the separation of A United Nations Development Program report from 2013
transgender children from their parents, and explicitly out- notes that transgender people face systemic discrimination
lines the rights of transgender persons to reside in the in accessing health care services, including the refusal of care
household where their parents/immediate family resides, and being treated with contempt by health care service
to not be excluded from households and to use and enjoy providers.13 Moreover, many trans persons are unable to
household facilities free from discrimination. However, it afford necessary medical procedures. During the pandemic,
needs to be noted that the right to residence should be several people expressed concerns over COVID-19 treatment

Indian Journal of Plastic Surgery Vol. 55 No. 2/2022 © 2022. Association of Plastic Surgeons of India. All rights reserved.
 Transgender Persons Act 2019 in India Jain 207

for trans persons; one person stated that “if someone from huge concern for trans and intersex people. We recommend
our community gets infected, we will be quarantined at that a separate chapter on health be brought into the bill that
male or female wards against our choice of gender identity. fully addresses trans and intersex health care as well as
This will further traumatize an already infected transgen- general health care for these communities.”16 They further
der person.”14 The Supreme Court in the NALSA judgment suggested that all public health facilities should follow the
had taken note of the lack of access to health facilities for guidelines set out by the WPATH. A consolidated response by
transgender persons.15 The petitioner in the NALSA case other trans-led groups such as Nirangal and Telangana Hijra
made averments regarding the lack of special sero-surveil- Intersex Transgender Samiti also submitted that “Trans
lance centers for transgender persons, who are usually put healthcare is absolutely critical for trans people to go on
in the category of men who have sex with men, to which living their lives. Key services like counselling, hormone
the Court responded by directing the Central and State therapy, various gender affirming procedures have to be
Governments to set up and operate such centers, especially made mandatory services that are accessible to all under-
for transgender persons. Additionally, to address issues privileged sections of the trans communities.”17
pertaining to the lack of access to health care by transgen- There is sufficient evidence to suggest that a lack of access
der persons, the Court directed Central and State Govern- to such care can lead to immense psychological distress and
ments to provide medical care to transgender people in that “social, psychological, and medical gender affirmation
hospitals. were significant predictors of lower depression and higher
The Transgender Persons Act, in aiming to uphold the self-esteem while the absence of domains of affirmation
directions of the Supreme Court in NALSA, framed Section 15 were significantly associated with suicidal ideation.”18 It
to provide health care facilities to transgender and gender- thus becomes crucial to ensure that transgender and gen-
variant individuals. The Act calls for various measures to be der-variant people persons are able to fully exercise their
performed by the “Appropriate Government,” including the right to health.
setting up of separate human immunodeficiency virus sero- Despite the Transgender Persons Act containing several
surveillance centers to conduct sero-surveillance for trans provisions pertaining to the health care of transgender
persons in accordance with the guidelines issued by the persons, as outlined in the previous section, other provi-
National AIDS Control Organization. The Act goes on to sions of the Act serve to institutionalize violations and
obligate the governments to run medical care facilities, oppressions experienced by transgender and gender-
including for the provision of gender-affirmative surgery variant persons in their daily lives. For instance, the Trans-
and hormonal therapy, and counseling before and after gender Persons Act provides for welfare schemes and
gender-affirmative surgery and hormone therapy, and to penalties associated with the fundamental right to health
bring out a health manual related to gender-affirmative of transgender persons, but the provisions relating to the
surgery in accordance with the Standards of Care for the “recognition of the identity of transgender persons” predi-
Health of Transsexual, Transgender, and Gender Noncon- cate the receipt of benefits under these schemes, as well as
forming People by the World Profession Association for protection from discrimination on the receipt of a “certifi-
Transgender Health guidelines (WPATH). cate of identity” as a transgender person. The certificate is
Furthermore, the Act prescribes more long-term meas- mentioned in the Act as a document, once issued, which
ures, which include the reviewing of medical curricula and “shall confer rights and be a proof of recognition” of a
research to enable doctors to address specific health con- person’s“identity as a transgender person.” It essentially
cerns of transgender persons. It casts an affirmative obliga- follows that without this process of “recognition” through
tion on governments to facilitate access to transgender application to a District Magistrate, transgender persons
persons in hospitals and other health care institutions and would not be recognized as beneficiaries of the specific
centers and to provide for the coverage of medical expenses grounds under the anti-discrimination provisions, protec-
by a comprehensive insurance scheme for the gender-affir- tions, and welfare measures aimed for transgender and
mative procedure including hormonal therapy, laser therapy, gender-variant persons.
or any other health issues of transgender persons. The The receipt of a “certificate of recognition” is therefore a
welfare measures under the Rules also require the establish- legally mandated requirement for transgender persons to
ment of separate wards in hospitals and washrooms for be able to access health care services that are already
transgender persons. Finally, the Act stipulates that whoever elusive to these gender-variant persons. Additionally, the
harms or injures or endangers the life, safety, health, or well- Act’s narrow definition of family as those related to trans-
being, whether mental or physical, of a transgender person gender persons by blood, kinship, adoption, or marriage
shall be liable to be punished with imprisonment for a term severely limits who can consent on behalf of them, espe-
which shall not be less than 6 months, which may extend to 2 cially in situations involving a medical emergency.
years and with a fine. The legal criteria (or, in many cases, lack thereof) that, in
In 2016, as a response to the Transgender Persons (Pro- turn, characterize the provision of gender-affirming surger-
tection of Rights) Bill introduced by the Ministry of Social ies and cause significant ambiguity in the medical process-
Justice and Empowerment, Sampoorna Working Group (a es required to make changes in legal identification
trans and intersex-led network) submitted a letter with their documents of transgender persons are covered in the
recommendations. In the letter, they noted that “Health is a following section.

Indian Journal of Plastic Surgery Vol. 55 No. 2/2022 © 2022. Association of Plastic Surgeons of India. All rights reserved.
208 Transgender Persons Act 2019 in India Jain

Legal Criteria for Gender Affirmation holders that are involved in the provision of holistic and
Surgery affirmative care to persons irrespective of their self-affirmed
gender identity.2
In 2014, Justice Radhakrishnan noted in the NALSA judgment However, it is pertinent to note that even though the
the need to “clarify the ambiguous legal status of document purports to have been developed in consultation
gender affirmative surgery and provide gender transition with transgender persons to account for regional differences
and gender affirmative services (with proper pre-and in transgender health care and claims to be oriented to the
post-operation/transition counselling) for free in public hos- particular needs of transgender and gender-variant persons
pitals in various parts in India.” Before the NALSA judgment, residing in India, it is notable that none of the authors or
Swati Bidhan Baruah had moved the Bombay High Court to mentioned contributors are transgender or gender-variant
safeguard her right to avail gender-affirmative surgery, individuals. ISOC-1 have been developed by doctors and
against the threat posed by her parents to restrict her medical practitioners keeping in mind a limited target audi-
decision. The Court declared that there was no law in the ence of the medical fraternity and lack the adequate repre-
country barring adults from undergoing “sex-change oper- sentation and participation, making it an exclusionary
ations.”19 Although Section 15 of the Act obligates the document. This is also reflected in the lack of knowledge
government to provide comprehensive insurance coverage and conversation by transgender and gender-variant indi-
of medical expenses, most of the country is yet to offer free or viduals on the publication of these standards of care. Any
even subsidized medical care for transgender persons.20 policies that dictate or guide health care provision for trans
Only some states such as Tamil Nadu provide free gender- persons, including surgical, infrastructural, or social aspects
affirmative procedures,21 while states such as Kerala have of the same, require in-depth consultation, review, and
formulated a policy on the subject but have no government- deliberation with transgender and gender-variant stakehold-
run hospitals that actually provide gender affirmation ers. Further, although the ISOC-1 have been developed to
surgeries.22 ensure that the medical professionals, as well as family and
As reported by the Hindustan Times in 2018, the Indian community members, are sufficiently sensitized to the needs
Council of Medical Research, which had been tasked with of trans and gender-variant persons, especially in the case of
creating detailed national-level guidelines on transgender those medical professionals carrying out gender-affirmative
health, has thus far failed to come up with the document.23 surgeries, these standards are yet to be adopted on a national
The medical curriculum in India also neither addresses scale so as to mandate adherence to them. These are guide-
health care for transgender persons nor sensitizes health lines that have been put forward by a non-statutory body or
care professionals on how to provide gender-affirmative public institution, and the legitimacy of the same can,
care. The management of the health of transgender and therefore, not be ensured in the absence of their adoption
gender-variant persons is, therefore, guided by Version 1 of by the Indian Council of Medical Research. Consequently, in
the Indian Standards of Care (ISOC-1) for Persons with the absence of legislative frameworks that ensure that these
Gender Incongruence and People with differences in Sexual standards and guidelines are adopted by all agencies and
Development/Orientation, which was released in November institutions, both public and private, working toward ensur-
2020 by Wisdom Publishers, Delhi. ISOC-1 are based on and ing quality health care for trans and gender-variant persons,
draw from the guidelines published by WPATH, and their significant gaps and lacunae in the transition process will
release was initiated by the Association for Transgender continue to exist.
Health in India at an international conference consisting of Now that the Transgender Persons Act and Rules are in
200 professionals working in the field of transgender health force, there is a clear process for changing an individuals’
care, in different specialties and subspecialties.24 The gender markers and name—although still subject to a com-
WPATH Standards of Care Version 7 are the globally accepted plex bureaucratic web.2 There are two separate processes for
standards that serve as the model template for gender- certification under the Transgender Persons Act. First, there
affirmative procedures, and these have been subsequently is the process for being identified as a “transgender person”
adopted by several countries on a domestic level through the under Section 5 of the Act, which requires the person to
introduction of legislations and guidelines for the provision apply in the format of Form-2 under the Rules to the District
of care for transgender and gender-variant persons.25 Magistrate of the jurisdiction in which they have been
The ISOC-1 seek to draw from the best practices in sync residing for at least the last 12 months. After verifying the
with the WPATH standards and contain detailed guidelines correctness of the application—but without any medical
for the surgical care of transgender and “gender incongru- examination—the Magistrate, under Rule 5, will issue a
ent” persons consisting of several procedures, a public health “certificate of identity” and “transgender identity card.”
approach to dealing with “gender incongruence” that pro- Both issued documents can be used to request a change in
poses several institutional and structural changes to improve their other official documents, including their birth certifi-
diversity in care and, finally, a parents support group section cate, caste/tribe certificate, secondary education certificate,
to guide parents of “gender incongruent” persons.24 The Aadhaar card, passport, ration card, and other illustrative
document aspires to be the base document for addressing documents listed under Annexure I of the Rules.
all concerns related to the health of transgender and gender- Second, under Section 7 of the Act, a person can apply to
variant persons, keeping in mind the various key stake- the District Magistrate for a revised certificate identifying

Indian Journal of Plastic Surgery Vol. 55 No. 2/2022 © 2022. Association of Plastic Surgeons of India. All rights reserved.
 Transgender Persons Act 2019 in India Jain 209

their binary change in gender (male or female) and name, guidelines on health care for transgender persons, especially
after undergoing “medical intervention.” The application, gender-affirmative procedures, is an important conversation
under Rule 6, should be made as per Form-1 of the Trans- to be had with the transgender and gender-variant move-
gender Persons Rules and be accompanied by a certificate ments. This continues to be an important step for ensuring
from the Medical Superintendent or Chief Medical Officer of that transgender and gender-variant persons have access to
the medical institution where the procedure was completed. the best possible health care based on the best available
After verifying the correctness of such certificate, as per Rule science. The absence of legally enforceable guidelines has
7, the Magistrate will issue a revised “certificate of identity” created a lacuna with respect to maintaining transparency,
and “identity card.” The person may, thereafter, use these accountability, and safety in the delivery of such procedures,
revised documents to request a change in their official especially in cases of medical negligence such as that involv-
documents. Although the Transgender Persons Act and Rules ing Anannyah Kumari Alex.29 WPATH itself notes that most of
replace all prior procedures for amendment of official docu- its research and experience is based on North American and
ments, persons that have officially recorded the change in Western European perspectives and, therefore, stresses the
their gender prior to December 5, 2019 are not required to importance of adapting its standards to other parts of the
make an application under the new laws. There is currently world while accounting for cultural relativity.25
also an impending constitutional challenge to Section 7 of
the Act.
Conclusion
It must be noted that the trans movement strongly dis-
agrees with the impetus of the Act, as it disrespects their The right to health of transgender persons, as well as the
autonomy and denies their right to self-determination of barriers to accessing health care facilities by transgender and
gender identity—in favor of determination by the State’s gender-variant individuals, has been covered and recognized
bureaucratic machinery.2 Despite claiming to uphold their by the Supreme Court as well as the legislature, through
right to self-identification, the web of bureaucratic proce- portions of the NALSA judgment as well as the Transgender
dures violates the NALSA judgment’s call for self-affirmation Persons (Protection of Rights) Act 2019. However, on a closer
and identification of gender without the prerequisite of examination of the judgment and the legislation, it is seen
gender-affirming surgery.2 that till the recognition of transgender and gender-variant
This “medical model” of recognition prescribed by the Act is identities is divorced from documentary “evidence” and
conflated with the actual gender identity of individuals, who bureaucratic processes, transgender and gender-variant in-
may not identify within the gender binary and whose gender- dividuals will still face discrimination, stigma, and obstacles
variant identity is essentially erased through this dangerous in realizing their rights and entitlements in practice. Fur-
equivalence, as codified in law. It is known that transgender thermore, the sheer absence of standards and guidelines for
persons may undergo several procedures before deciding on gender-affirming procedures for transgender and gender-
undergoing gender affirmation surgery, may undergo only variant persons has significant implications on the quality of
some of the procedures, or may choose not to go through it at health care that is accessible. It is imperative to craft a legal
all. Such decisions should ideally not affect the “identity” of the framework in consultation with the transgender and gender-
person in law, with entitlements to gender-variant persons variant movement and stakeholder activists and individuals
being enforced independently from surgical status. Further- in India to overcome these structural barriers.
more, the mandatory requirement of surgery to allow individ-
uals to formally “change” their gender is not only likely to be Funding
exclusionary to gender-variant persons who do not identify None.
within the legally prescribed binary, but it can also be hazard-
ous for transgender persons who are living with a health Conflict of Interest
condition that may be impacted by undergoing such a proce- None.
dure. The health system, rather than facilitating access to
health care services and self-identification, is adopting the Acknowledgments
position of a “gatekeeper” that helps to medicalize the legal I would like to acknowledge the excellent research and
discourse around gender identity.26 editorial assistance of Siddharth Saxena, Kavya Kartik, and
In contrast to India, Argentina’s 2012 law on gender Rhea Malik. My gratitude to Kanmani Ray, Abhaya Tata-
identity upholds the right by all persons to the recognition varti and Disha Choudhary for their close reading of the
of their gender identity, as well as free development of their article and their helpful review. I am grateful to the peer
person according to their gender identity27 Transgender and reviewers for their excellent comments and editors of the
gender-variant people can also request that their recorded journal, especially Dr. Kadam for his support. I am writing
gender be amended along with the changes in first name and this piece from my location as a legal academic and I
image. Similarly, in June 2020, the Government of the remain attentive to my privilege as a cis-gender academic.
Netherlands removed all gender markers from national I am indebted to my friends in the trans movement in
identification documents, deeming them as “unnecessary.”28 India from whom I have had the opportunity to learn and
In addition to the dismantling of the bureaucratic web, the unlearn, and Dr. Aqsa for inviting me to contribute to this
development and implementation of standard protocols or volume.

Indian Journal of Plastic Surgery Vol. 55 No. 2/2022 © 2022. Association of Plastic Surgeons of India. All rights reserved.
210 Transgender Persons Act 2019 in India Jain

Note 15 Jain D, Pillai G, Shukla S, Poonjatt J. Bureaucratization of trans-

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16 Sampoorna Working Group. Sampoorna’s response to MSJE
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Transgender Rights Bill. Orinam. 2016. Available at: http://
ment in the Transgender Persons Act and Draft Rules. She orinam.net/sampoorna-response-msje-trans-rights-bill/
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meaning varies across regions, cultures, and nations. She Transgender SamitiThe Transgender Persons (Protection of
recognizes that it does not fully represent the diversity Rights) Bill, 2016: Responses from the trans & intersex commu-
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