'Changing Gender A Constitutional Right': Allahabad HC Grants Relief To Lady Constable Seeking Nod For Sex Reassignment Surgery

Stressing that a person has a "constitutionally recognised" right to change his/her gender through surgical intervention, the Allahabad High Court last week directed the State DGP (Director General of Police) to dispose of an application filed by a female constable seeking permission to undergo Sex Reassignment Surgery (SRS).

The bench of Justice Ajit Kumar further said that if in modern society, we do not acknowledge this vested right in a person, to change one's identity, we would be "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, and 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," the Court remarked.

The bench made these observations while dealing with a writ plea filed by an unmarried Woman Constable working with UP Police who claimed to be suffering from Gender Dysphoria and wished to undergo Sex Reassignment Surgery (SRS) to get herself ultimately identified and personalized as a male with true male physical character.

Before the Court, the petitioner's counsel submitted that the petitioner applied for necessary sanction for the SRS on March 11, 2023, before the Director General of Police, U.P. Lucknow but no decision had been taken in that regard and therefore, the instant plea was moved..

Petitioner's counsel primarily relied upon the Supreme Court's case of National Legal Services Authority v. Union of India and Others, 2014 5 SCC 438 to contend that the respondents were not justified in withholding the application of the petitioner. 

It may be noted that in this very case, the Top Court had declared transgender people as the 'third gender' while giving them the right to self-identification of their gender as male, female or third gender.

It was argued that as per the 2014 ruling of the Supreme Court, wherein gender identity was declared to be an integral part of the dignity of an individual, the respondent authorities were bound to take a decision in the petitioner's case.

The Counsel for the petitioner also referred to Section 15 of the Transgender Persons (Protection of Rights) Act, 2019 which deals with health care facilities including Sex Reassignment Surgery and hormonal therapy.

Lastly, the recent decision of the Rajasthan High Court was also referred to wherein the HC had allowed a Physical Training Instructor to get his name and gender changed in the service record after a sex reassignment surgery.

Against the backdrop of these submissions, the Court emphasised that if a person suffers from gender dysphoria and except for physical structure, her feeling and also the traits of the opposite sex so much so that such a person takes a complete misalignment of her personality with physical body, such a person does possess a "constitutionally recognized right to get his/her gender changed though surgical intervention".

In view of the above, finding no justification on the part of the Director General of Police to withhold the application of the petitioner, the Court directed the DGP to dispose of the pending application of the petitioner strictly in light of the judgments referred to in the order.

The Court also asked the state government to file an appropriate affidavit as to whether it has framed any such Act in compliance with directions issued by the Supreme Court in the NALSA case and if that be so, the same may also be brought on record.

The Court added that if any such Act or Rule has not been famed to date, the State Government should ensure to frame such Act at par with the Central legislation and to file a comprehensive affidavit in that regard as to what steps have been taken so far, by the next date fixed.

The matter has been fixed for further hearing on September 21, 2023.

Case title - Neha Singh vs. State Of U.P. And 2 Others [WRIT - A No. - 7796 of 2023]

Case Citation: 2023 LiveLaw (AB) 276

Click Here To Read/Download Order