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Synopsis

The Allahabad High Court recently directed the Director General of Police, Lucknow, Uttar Pradesh to dispose of the pending application of a UP Police Constable seeking necessary sanction for undergoing Sex Reassignment Surgery (SRS) in the light of the judgments passed by the Supreme Court and high courts in this regard.

The bench of Justice Ajit Kumar passed the order in a writ petition moved by the constable alleging that her application for sanction for SRS was pending before the DGP, Lucknow since March 11, 2023. 

The constable told the court that she suffered from Gender Dysphoria and though being in a female body she identified herself as a male. Therefore, she was desirous of undergoing Sex Reassignment Surgery.

In her plea, the constable referred to the judgment of the Supreme Court in the case of National Legal Services Authority v. Union of India and Others, 2014 5 SCC 438, in which the court had dealt with the issue of Transgender rights and upheld the constitutional right of an individual to get recognition as male or female.

The Top Court, in the said judgment, had held the 'right of choice of gender' as a germane to the fundamental rights of liberty and to live with dignity in one's own dignified way as a human.

If a person's anatomical structure is coming in that person's way to live a happy and dignified life, State is duty-bound to give such a person adequate opportunity to have a personality of choice, a right well guaranteed under the constitution, the Apex Court had held.

The counsel for the petitioner argued that in view of the direction issued by the Supreme Court, the respondents were not justified in withholding the application of the petitioner.

Even in the absence of any statutory provisions, authorities are bound to obey the command issued by the Supreme Court, he contended. 

Taking note of the plea, the high court observed that:

"One should not have any doubt that if a person suffers from gender dysphoria and except for physical structure, her feeling and also the traits of 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."

Court emphasised that if in modern society, this vested right in a person is not acknowledged, it would result only in 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, said the single judge bench. 

Therefore, the court held the DGP, Lucknow not justified in withholding the application of the petitioner.

Apart from that, court sought an affidavit from the State Government stating whether it has framed any rules, Act or not in the light of directions issued by the Supreme Court in the case of National Legal Services Authority. 

However, it is provided that if any such Act or Rule has not been famed till date, the State Government will ensure to frame such Act at par with the Central legislation that has been referred to and file a comprehensive affidavit in that regard as to what steps have been taken so far, by the next date fixed, ordered the court.

The matter will be next taken up by the high court on September 21, 2023. 

Case Title: Neha Singh v. State Of U.P. And 2 Others