The 2019 LGBTQ Act, the 2019 “2019 law” obtained the approval of a Chairman and became in force and was the law that governed transgender in India. DECEMBER 5 of 2019 marked the dark day for the LGBTQ. It was notoriously short of its expectations, however, and added to the challenges already existent in the socio-legal arena of India. In 2014, a pathbreaking judgment on NALSA v. Union of India[‘NALSA decision’] was issued by the Supreme Court of India, and the transgender/third sex was acknowledged as ‘persons’ within Article 14 of the Indian constitution. This legal move was motivated by granting equal treatment and equity to transgender individuals and eliminating the ‘second-degree citizens’ status.
While certain major mistakes in the 2018 very controversial draught law have been corrected in current legislation, it still violates the 2014 judgment greatly. Discrimination against members of the transgender community in sexual crimes is one of the major gaps in the Act. Following the NALSA decision, the need of the hour to ensure compliance with constitutional principles was a clear legislative measure. For this, a comprehensive statute was required, which would give the members of the transgender community equal status and respect. However, the issue is that this regulation does not, as referred to in Article 14, offer the Community equal protection of the law in the field of sexual offenses. Article 18(d) of this Act deals with offenses that have a sexual character as a small offense and are less serious in comparison with similar offenses against women. This is an obvious contravention of the constitutional spirit which leads to the need to deal with this injustice as a matter of urgency and it has been further developed in the next section for clarification of the problem.
Despite the insufficiency of the law for 2019, hope remains for an improvement in the status quo and for the elimination of legal inequality. The private KTS Tulsi member presented on 12 July 2019 a bill aiming at changing criminal legislation and neutralizing sexual offenses in line with the criminal code. Given the limited range of sexual crimes (including rape), the transgender population has suffered the most in India today. The Apex Court also emphasized in its NALSA judgment the concerns of transgender people who are subjected to sexual violence. It should therefore be said that nonconsensual sexual intercourse with the penetration of any individual must be classified as rape. Such an enlargement of the concept would ensure that the rights of individuals are protected, regardless of their social structure.