Karnataka HC Orders Modification Of Name, Gender In Birth/Death Certificate Of Transgender Persons If Sought With Necessary Certificate

The Karnataka High Court has asked the state government to suggest amendments to the Registration of Births and Deaths Act, 1969, and the rules framed thereunder to "give effect" to the Transgender Persons(Protection of Rights) Act 2019, in permitting change of name and gender of a transgender person in their birth/death certificate.

In doing so the court directed the Registrar to modify the birth and death certificate of transgender persons on submission of their application, if it is accompanied with requisite certificate concerning change in identity and gender as provided under Sections 6 (Issue of certificate of identity) and 7 (certificate of Change in gender) of the Transgender Persons(Protection of Rights) Act 2019.

Noting that since there is no procedure for now in force for corrections in birth certificate on account of change in gender, Justice Suraj Govindaraj in his order directed that until suitable amendments are made in the Registration of Births and Deaths Act and rules therein, "it shall be the duty of the Registrar of Births and Deaths to give effect to any certificate issued under Section 6 or 7 of the Transgender Persons(Protection of Rights) Act, 2019 by accepting and processing an application filed by a transgender, if accompanied by certificate under section 6 or 7 of the Transgender Act and make such entries in the Register of Births and Deaths and issue necessary birth or Death certificate with modification made, indicating both the earlier name and the present name with the details of the certificate under Section 6 or 7 being incorporated in the said certificate".

The court further said, “The Law Commission, Government of Karnataka is requested to look into the Transgender Act and suggest appropriate amendments to the Act of 1969 and the Rules framed thereunder so as to give effect to the Transgender Act in its true letter and spirit, at the earliest. Registrar (Judicial) is directed to forward this order to the Hon'ble Chairperson of the Law Commission of Karnataka”.

The directions came while allowing a petition filed by a transgender person who had approached the authorities to change her gender and name in the birth certificate issued after she underwent a sex reassignment surgery.

Significantly, the petitioner after changing her name had made various applications for necessary changes of name and gender to be effected in identity documents like Aadhaar Card, driving licence and passport etc., which were so permitted.

However, when an application was made to the Registrar of Birth and Death Certificate to reflect her correct name and gender as 'female', she was orally informed that Section 15 of the Act, does not contemplate such a change and/ or a modification to be made in the birth certificate already issued and the only change that could be effected is as regards any erroneous entry made in the birth certificate.

Counsel for the petitioner argued that the rights which have been conferred on Transgender persons under the Transgender Act, have not been suitably incorporated in the Act of 1969, resulting in an anomalous situation. Thus despite the Transgender Act, permitting the petitioner to avail of a change in the certificate incorporating the change in name and change in gender, the authorities by contending that Section 15 of the Act of 1969 does not envisage such a situation, have refused to act on the application submitted by the petitioner.

The government advocate contended that the Registrar of Births and Deaths can act only in terms of the Act of 1969. The Act of 1969 not providing for change in the name or gender to be made post the entry in the register of births, such a correction in name and gender cannot be effected by the Registrar and it is for that reason, that the application has not been acted upon.

Findings

The bench noted the Transgender Act has been promulgated to provide for protection of rights to transgender persons and their welfare and also for matters connected therewith and incidental thereto along with various aspects.

Observing that in the case of a transgender, it is only subsequently that a person realizes that such a person is not a male or female as shown and recognized in the birth certificate.

The court referred to various provisions of the Act and Rules and said “When, Sub-sections (2) and (3) of Section 7 of the Act, provide for both change in gender and change in first name, the concomitants thereof would be, issuance of a necessary birth certificate under the relevant provision and in this case, Section 15 of the Registration of Births and Deaths Act, 1969.”

Stating that the Transgender Act being a special enactment, the mandate of a special Act would have to be complied with by General Enactment like the Act of 1969 the court noted that a birth certificate is also an official document as per Annexure 1 to the transgender rules as defined under sub-rule (c) of Rule 2 and listed under Annexure 1.

The court held “Therefore a revised birth certificate would have to be issued if all the requirements of the Transgender Act are fulfilled.”

The court observed that there is an obligation in terms of Section 8 of the Transgender Act on the government to safeguard the interest of the Transgenders, one of the modes and methodologies for such protection being the implementation of the mandate of Section 4 to 7 of the Transgenders Act.

The court said “In that view of the matter, the authority not having acted on the application filed by the petitioner for the reason that Section 15 of the Act of 1969 not providing for the same, the said authority has acted contrary to the rights, which have been recognized under the Transgender Act, by negating the rights of a Transgender recognized under the Transgender Act.”

Accordingly it allowed the petition and directed the Respondent No.2–Health Officer/Registrar of Birth and Death Certificate to process the application of the petitioner in terms of the above within a period of four weeks from now and issue the same.

Case Title: Ms X AND State of Karnataka & ANR

Counsel for Petitioner: Advocate Aparna Mehrotra for Advocate Naveen Chandra V

Counsel for State of Karnataka (Department of Law): AGA Mahantesh Shetter

Counsel for Health Officer/Registrar of Birth and Death Certificate: Advocate K N Nithish

Citation No: 2024 LiveLaw (Kar) 529

Case No: WRIT PETITION NO. 55559 OF 2017

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