Allahabad High Court: In a writ petition concerning the withholding of petitioner's application for grant of sanction for Sex Reassignment Surgery, Ajit Kumar J. has said that if a person suffers from gender dysphoria, such person takes a complete misalignment of personality with physical body, such a person does possess a constitutionally recognized right to get his/her gender changed though surgical intervention. Thus, the Court directed the Director General of Police to dispose of pending application of the petitioner and file an affidavit of compliance.
Background:
The petitioner is a woman constable in U.P. Police, as per her own assessment she found in herself all the traits of a male personality. She claimed to have a feeling of a male in herself trapped in a female body. Accordingly, she claims to be suffering from Gender Dysphoria. This has been diagnosed also by an authorized medical practitioner who runs a mind clinic in New Delhi after conducting a psychological test of her. In the circumstances, she is desirous of undergoing Sex Reassignment Surgery. If modern society does not acknowledge this vested right in a person, then it is only encouraging gender identity disorder syndrome to get herself ultimately identified and personalized as a male with true male physical character.
The petitioner submitted that assailing the right to get SRS done, the petitioner has applied for necessary sanction vide application dated 11-03-2023 made to the Director General of Police, U.P. Lucknow but no decision has been taken in that regard till date. It further submitted that in view of direction issued by the Supreme Court, the respondents are not justified in withholding the petitioner's application, because even in absence of any statutory provisions, authorities are bound to obey the command issued by the Supreme Court. Also, the petitioner pointed out that the Central Government has framed Transgender Persons (Protection of Rights) Act, 2019, wherein Section 15 of Act deals with health care facilities, including Sex Reassignment Surgery and hormonal therapy.
The Court said that, if a person suffers from gender dysphoria, such person takes a complete misalignment of personality with physical body, such a person does possess a constitutionally recognized right to get his/her gender changed though surgical intervention. If modern society does not acknowledge this vested right in a person, then it is only encouraging gender identity disorder syndrome. At times such a problem may be fatal as such a person may suffer from disorder, anxiety, depression, negative self-image, dislike of one’s sexual anatomy. If psychological interventions to alleviate such distress as above fail, surgical intervention should become a must and should be encouraged. Therefore, the Court did not find any justification for the Director General of Police to withhold the application of the petitioner.
Further, the Court directed the State Government to file an affidavit as to whether it has also framed any such Act in compliance of directions issued by the Supreme Court in National Legal Services Authority v. Union of India, (2014) 5 SCC 438 and if that be so, the same may also be brought on record. However, if any such Act or Rule has not been famed till date, the State Government will ensure to frame such Act on a par with the Central legislation and file a comprehensive affidavit in that regard as to what steps have been taken so far, by 21-09-2023.
Further, the Court directed the Director General of Police to dispose of pending application of the petitioner and file an affidavit of compliance.
[Neha Singh v State of UP, 2023 SCC OnLine All 701, Order dated 18-08-2023]
Advocates who appeared in this case :
Counsel for Petitioner: Advocate Ram Janam Shahi, Advocate Pramod Kumar Yadav
Counsel for Respondent: Chief Standing Counsel
