Human Being’s Right To Choose Sex Or Gender One Of Most Basic Aspects Of Self Determination, Dignity And Freedom: Rajasthan High Court

Allowing a Physical Training Instructor to get his name and gender changed in the service record after a sex reassignment surgery, the Rajasthan High Court said that the right of a human being to choose his/her sex or gender identity is integral to his or her personality and is one of the most basic aspects of self determination, dignity and freedom.

Justice Anoop Kumar Dhand said that everyone is entitled to enjoy all human rights which are a basic necessity to survive, without discrimination on the basis of sexual orientation or gender identity.

"Gender identity is the most fundamental aspect of life which refers to a person’s intrinsic value of being a Male or Female. 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," said the court.

The court said 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. It added that Till the past, Male and Female as used to be considered as "two biological sex but the developed science has proved that there are more genders than just cisgender."

"According to the Rigveda, in Hindu mythology, three types of genders have been considered - the Male, that is the ‘Purush’, the Female that is the ‘Prakriti’ and the third gender that is the ‘Tritiya Prakriti’. In the recent times the modern Indian society have considered them as the third gender otherwise there was no such identity given to them legally. Still, all is not well, and the third gender people are struggling to constitute a part of the civil society."

The petitioner, who took birth as a female, was working as a Physical Training Instructor, Grade III, under General Female Category. At the age of 32, she was diagnosed with Gender Identity Disorder. She consulted a psychiatrist who found her fit for a Sex Reassignment Surgery.

After having gone through a psychological treatment and gender reassignment surgery (Female to Male), the petitioner started identifying herself as a male. The consultant Urologist Doctor had also issued a Certificate in this regard. After getting the status of male gender, the petitioner successfully got his name changed in the Official Gazette and his Aadhar Card.

Subsequently, he submitted an application to his employer for change of his name and gender in his service record. Despite having made the application over three years ago, the name and gender of the petitioner was not changed in his service record. He therefore challenged the said inaction/delay on the part of the employer through the present writ petition.

It must also be pointed out that post the gender reassignment surgery, the petitioner got married and has two sons from the wedlock.

The court said in view of The Transgender Persons (Protection of Rights) Act, 2019, a transgender person has a right to be recognized not only as a transgender but also a right of self-perceived gender identity.

"This court is of the opinion that the petitioner who has opted for the Male gender and has undergone sex reassignment surgeries for aiding his self-perception as a member of the said gender, would definitely be recognized as a Male gender and he is entitled to get the change and correction of his name and gender in his service record."

While noting that the petitioner has already gotten married and also has two sons, the court observed that if the name in his service record is not corrected then it would be very difficult for him to clear his status and identity in the society and for his wife and children to get service benefits.

The court asked the petitioner to submit an application before the District Magistrate having jurisdiction, and directed the District Magistrate to get the fact of the gender reassignment verified and on being satisfied, issue the required certificate to the petitioner.

"Such procedure shall be completed by the District Magistrate within a period of sixty days from the date petitioner applies before him along with the certified copy of this order. On the basis of the certificate issued by the District Magistrate, petitioner shall be at liberty to approach the authorities concerned i.e. the respondents, who shall take immediate steps to change the name and gender of petitioner in his service record. Such exercise shall be completed within a period of one month from the date the petitioner approaches the respondents along with the certified copy of this order and the certificate issued to him by the District Magistrate," said the court.

Grievance Redressal Mechanism Forum in each district

The court also directed the Chief Secretary of the State to instruct all the District Magistrates of the State to implement the provisions of the The Transgender Persons (Protection of Rights) Act of 2019 and the Rules of 2020 effectively and positively and establish a separate Grievance Redressal Mechanism Forum in each Districts of the State to deal with the complaints relating to violation of the provisions of this Act and provide all benefits of the provisions of this Act to the transgender persons.

"The Chief Secretary is expected to do the needful exercise for effective implementation of the provisions contained under this Act within three months of receipt of copy of this order and submit the compliance report to this Court on or before 04.09.2023," the court said.

Case Title: Chinder Pal Singh vs. The Chief Secretary S.B. Civil Writ Petition No. 14044/2021

For Petitioner(s) : Mr. Arvind Sharma Ms. Mamta Agarwal

For Respondent(s) : Mr. S. Zakawat Ali, Addl. G.C.

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