“Right to choose sex or gender identity integral to a human’s personality”: Rajasthan High Court while directing for recognition of male after gender reassignment surgery

Rajasthan High Court

Rajasthan High Court: In a Writ Petition seeking recognition as a male and change of name and gender in the service record by a person who underwent gender reassignment surgery, Anoop Kumar Dhand, J. upheld the petitioner’s right to be recognized as a male and directed the petitioner to submit an application before the District Magistrate in accordance with Section 7 of Transgender Persons (Protection of Rights) Act, 2019 (‘2019 Act’) while also directing the authorities concerned to issue relevant certificate and update his service record.

The Court considered the question “Whether a person born as a female with predominantly male orientation, or vice versa, has a right to get oneself to be recognized as a member of the gender of one’s choice, when the person has undergone surgical procedures for change of physical gender attributes?”.

The Court expressed that to choose a his/her sex or gender identity is integral to a human’s personality, while identifying the same as one of the most basic aspects of self-determination, dignity and freedom.

Facts of the case show that the petitioner was born as a female and completed her studies accordingly, who got appointed as a Physical Training Instructor (‘PTI’) Grade III under General Female Category through order dated 12-7-2013. The petitioner consulted a psychiatrist at the age of 32, and based on detailed clinical examination, any psychiatric disorder was rejected, and it was disclosed that the petitioner was suffering from gender identity disorder, declared fit for ‘Sex Reassignment Surgery’.

The petitioner underwent Gender Reassignment Surgery (female to male) with Phalloplasty – Penis Prosthesis in 2014-2017 at a hospital in Mumbai to become a male and was undergoing hormone therapy. After getting the status of a male, the petitioner changed name in the Official Gazette of India on 8-9-2018 and even in the Aadhar Card. It was also disclosed that after undergoing the surgery, the petitioner got married and has two kids born out of the said wedlock.

Thereafter, the petitioner applied for change of name and gender in the service record on 22-9-2018. The matter was referred to the Joint Director, Secondary Education on 1-10-2018 for necessary action, but the same remained unchanged even after the passage of 3+ years. Thus, the Court approached the Court for issuing an appropriate writ/order/direction through the instant petition.

The Court explained that “There are times when human body is not formed with all of its proper attributes, therefore genital anatomy problems may arise and many of them do not choose to undergo gender reassignment surgery to change their gender.” The Court upheld everyone’s right to enjoy human rights basic for survival, without any discrimination on the basis of sexual orientation or gender identity. The Court referred to the three types of genders as per Rigveda in Hindu mythology, consideration of the third gender in the modern society, and said that these people are struggling to be a part of the civil society.

The Court observed the Scientific developments in terms of gender and expressly mentioned that “Right to equality is guaranteed by our Constitution of India as a fundamental right, which we inherit the day we become a part of our mother’s womb. Everybody on this planet has a right to be treated with respect and dignity, be it a Male or a Female or any other gender.”

The Court relied on the decision in National Legal Services Authority v. Union of India, (2014) 5 SCC 438 wherein, the Court specifically upheld transgender persons’ right to life with human dignity, privacy and freedom of expression. It further referred to the definition of a ‘Transgender Person’ under Section 2(k) of 2019 Act and other relevant provisions prohibiting any kind of discrimination. The Court stated that the object of 2019 Act is “to give effect to the rights guaranteed to such persons under Articles 14, 15, 19 and 21 of the Constitution of India” while recognizing their rights not only as a transgender but the right of self-perceived gender identity as well.

The Court opined that the petitioner who opted male gender and underwent sex reassignment surgeries to aid his self-perception as a third gender would definitely be recognized as a male, and is entitled to change and correction of his name and gender in the service record.

The Court directed the petitioner to submit an application before the District Magistrate in accordance with Section 7 of the 2019 Act. The Court also directed the said District Magistrate of appropriate jurisdiction to issue the required certificate after verification of gender reassignment within 60 days, and the authorities concerned to take immediate steps within a month to change the petitioner’s name and gender in the service record based on the certificate.

Before concluding, the Court also directed the Chief Secretary of State to instruct all the District Magistrates to effectively and positively implement the provisions of 2019 Act and regarding establishment of a separate Grievance Redressal Mechanism Forum in each Districts of the State to deal with complaints related to violation of provisions of 2019 Act and provide all benefits to the transgender persons.

[X v. Government of Rajasthan, 2023 SCC OnLine Raj 907, Judgment dated 25-5-2023]

Judgment by: Justice Anoop Kumar Dhand

Advocates who appeared in this case :

For Petitioner: Advocate Arvind Sharma, Advocate Mamta Agarwal;

For Respondents: Additional Government Counsel S. Zakawat Ali.

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