{"id":237839,"date":"2020-10-22T12:54:54","date_gmt":"2020-10-22T07:24:54","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=237839"},"modified":"2020-10-30T11:05:34","modified_gmt":"2020-10-30T05:35:34","slug":"kar-hc-self-identification-of-ones-gender-lies-at-the-heart-of-fundamental-right-to-life-and-personal-liberty-and-state-authorities-are-obligated-to-give-legal-recognition-to-the-same-writ","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2020\/10\/22\/kar-hc-self-identification-of-ones-gender-lies-at-the-heart-of-fundamental-right-to-life-and-personal-liberty-and-state-authorities-are-obligated-to-give-legal-recognition-to-the-same-writ\/","title":{"rendered":"Kar HC | Self-identification of one\u2019s gender lies at the heart of Fundamental Right to Life and Personal Liberty and State authorities are obligated to give legal recognition to the same; Writ Petition Allowed"},"content":{"rendered":"

Karnataka High Court: <\/strong>John Michael Cunha J., while allowing the present writ petition moved by a transgender against the declaration of her self identified gender in official documents, reiterated the observations made in National Legal Services Authority v. Union of India,<\/em><\/strong> (2014) 5 SCC 438<\/a> and clarified upon the applicability of Rules 6 and 7, Transgender Persons (Protection of Rights) Rules, 2020.<\/p>\n

\u00a0<\/strong>Brief Facts<\/strong><\/p>\n

Facts of the case are enlisted objectively hereunder;<\/p>\n

    \n
  1. That the petitioner claims to be a transgender; whose gender does not match with the gender assigned to her biologically by birth.<\/li>\n
  2. That the birth certificate of the petitioner declares her as a male and names her as \u2018Clafid Claudy Lobo\u2019<\/li>\n
  3. That at a very young age, the petitioner identified herself as a female and lately underwent a gender reassignment surgery on 26-07-2018, at Namaha Hospital, under the medical supervision of Dr Umang Kothari.<\/li>\n
  4. That the petitioner thereafter changed her name from \u2018Clafid Claudy Lobo\u2019 to \u2018Christina Lobo\u2019 by executing an affidavit dated 31-10-2019.<\/li>\n
  5. That the petitioner holds an AADHAAR card and a passport with the aforementioned name and gender female.<\/li>\n
  6. That the respondent authorities have denied acknowledging the gender identity of the petitioner and further rejected the claim of changing the personal details over the university and pre-university certificates.<\/li>\n
  7. That the petitioner has sought for a writ in the nature of mandamus directing respondents 2 and 3; the Department of Pre-University Education and the Karnataka Secondary Education Examination Board, Bengaluru to issue a revised certificate in addition to the setting aside of order passed by respondent 4; Central Board of Secondary Education, Chennai and issue revised CBSE mark sheet showing her name as \u2018Christina Lobo\u2019. Further, the petitioner prays to issue a writ of mandamus against respondent 6 and 7; Rajiv Gandhi University of Health Sciences and Father Muller Medical College, Mangalore to change her name and gender in the MBBS mark sheet and thereby grant revised educational records.<\/li>\n<\/ol>\n

    \u00a0<\/strong>Contentions<\/strong><\/p>\n

    It was argued by the counsel for respondent 3, N.K. Ramesh, that the Transgender Persons (Protection of Rights) Act, 2019 has been promulgated by the Parliament on 05-12-2019 and as per the provisions of the said Act, a Transgender is required to make an application to the District Magistrate for issuance of a certificate of identity as a transgender person. Further, there is no provision in \u2018Examination Bye-laws\u2019 of the Board to effect change in gender and name of the students and therefore, the order passed by respondent 3 cannot be faulted with.<\/p>\n

    The counsel for the petitioner placing reliance on NALSA v. Union of India<\/em>, (2014) 5 SCC 438<\/a>, emphasized transgender person rights decide their self identified gender as recognized by the Supreme Court and the direction issued to the Central and State Governments granting legal recognition to the same, without fail. As per the facts of the present case, the petitioner has identified herself as a female and also undergone psychological evaluation\/gender reassessment surgery. There seems no reason for denial to the petitioner\u2019s claim as the legal position stands clear in the light of the aforementioned judgment. It was further submitted that under Article 21 of the Constitution, such denial shall be arbitrary and in violation of the Fundamental Rights enshrined under the Constitution.<\/p>\n

    \u00a0<\/strong>Observation<\/strong><\/p>\n

    The Court, pursuant to its decision, cited the following cases;<\/p>\n