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Synopsis

Justice Subramonium Prasad of the Delhi High Court on Tuesday 'deferred' the hearing in a transgender woman’s plea seeking direction to the authorities to re-issue her passport with her revised particulars, including her new name and gender, since her appearance changed after undergoing sex reassignment surgery.

The matter is scheduled for further consideration on April 24, 2024.

Notably, in November, the Ministry of External Affairs (MEA) informed the Court that it needs more time to consider the suggestion for a policy that enables individuals who undergo sex change surgery outside India to get fresh passports without hassle.

The Ministry of Home Affairs (MHA) said that it has suggested to the MEA that it come up with a policy to fast-track the process of passport issuance to individuals who undergo sex reassignment surgery abroad, as biometrics do not change after such medical procedures.  

The court was informed that the identity of such Indian citizens can be verified through biometric records, which are already available to the authorities.

The MHA, in a letter, said that the matter has been examined in consultation with the field agency, and since the biometric information is not liable to change after one undergoes such medical procedures, a mechanism or policy may be developed by the MEA, as authorities already possess the biometric records to verify the recipient's identity before issuance of new passports.     

A letter from the concerned embassy addressed to the Bureau of Immigration to facilitate immigration clearance in such cases is also required to avoid any confusion at the Immigration Check Post, the MHA said in the letter.

The MEA said that the MHA is in agreement with the MEA that if a person undergoes a sex-change operation abroad and due to that operation there is a change in name, sex, as well as appearance of the person, and the details in the old passport do not match with the changes, such people may apply for re-issuance of passport at concerned Indian Mission or Post abroad.

As MEA sought time to examine the matter with different stakeholders and its technical feasibility before coming up with such a policy, the court posted the matter for further hearing on December 19.

In September, the court had directed the respondent authorities to "expedite the process of police verification" in a transgender woman’s plea. 

Earlier, the judge had remarked, "Transgender people, who choose to undergo sex reassignment surgery, face difficulties in acquiring a fresh passport due to change in appearance, an issue which needs to be streamlined”.

“Similar problems are arising in several matters and these people are suffering because of lack of passport after they changed their gender. Because then their appearance changes. It needs some streamlining,” the judge had said while asking the authorities to look into it.

About the Plea

The petitioner Anahita Chaudhary in her plea sought directions to the authorities to re-issue her passport with revised particulars changing her name, gender, and appearance as per her application of January 18, 2023.  The plea stated that the application had been pending with the respondent authorities for over six months.

Chaudhary in her plea also stated that grave prejudice was caused to her in view of non-issuance of the revised passport by the authorities. “This is so as the petitioner, who is at present in Chicago, United States of America, is unduly prevented from travelling back to India, her come country”, she said in her plea.

“As a matter of fact, the inaction on the part of the Petitioners has prevented the Petitioner from travelling anywhere outside the USA”, the plea said.

The petitioner is a transgender woman who was assigned a male name and gender at birth. In 2018, the petitioner moved to the United States of America on an H1-B visa after securing gainful employment in that country. The petitioner transitioned between 2016 and 2022 and underwent sex reassignment surgery in 2022.

“Once the petitioner transitioned, she was able to legally secure a change of name and gender by way of a court order in the United States. Consequently, she was able to legally rectify her name/gender/appearance as it appeared on official documentation, for instance, her Illinois driver’s license”, the plea stated.

The plea said that in the present case, the petitioner had also submitted the requisite medical certificate to demonstrate that she had undergone sex reassignment surgery (male to female SRS) along with her application. She further stated that despite various requests for updates, the respondents were yet to take a decision on the petitioner for over seven months.

On March 7, 2023, the petitioner was informed that since her case is a “gender change case” the same was pending with the 1st respondent ministry. “Subsequent representations/reminders to the Respondents have gone unanswered”, the plea stated.

Chaudhary claimed that the illegal withholding of her application caused her “grave prejudice”, and that she had not been able to travel back to India to see her family since the onset of the pandemic, for the last three years. The undue delay in processing her application resulted in a “deprivation of her right to travel abroad” including her “right to travel back to her home country”, which is a facet of her “personal liberty”, she submitted.

“The petitioner’s right to get a re-issuance of her passport with revised particulars is a facet of her right to self-identification protected by Articles 14, 15, 19 and 21 of the Constitution of India. The petitioner’s right to self-identify is curtailed as her name, gender and appearance does not match with what is currently on her passport”, the plea read.

Case Title: Anahita Chaudhary v. Union of India & Anr.