Rajasthan HC upholds Right of Recognition by Self-Perceived Gender Identity; Directs Administration to establish Grievance Redressal Mechanism

The Rajasthan High Court in a welcoming judgment directed the State Administration to effectively consider the application for change of name and gender of a person who underwent Sex Reassignment Surgery and identified himself as a male. Court took note of several provisions of the Transgender Persons (Protection of Rights) Act, 2019 and Rules 2020, holding that if the identity of the petitioner is not corrected in his service record, the wife and children of the petitioner would face difficulty to get service benefits of the petitioner as such.

Justice Anoop Kumar Dhand, while disposing of the present petition observed, “In view of the specific provision of the Act of 2019 by which 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.”

Reliance was placed on the Supreme Court decision in National Legal Services Authority v. Union of India, (2014) 5 SCC 438, in this regard.

The petitioner was directed to submit an application as per Section 7 of the 2019 Act, before the District Magistrate. A period of 60 days was specified for all verification and procedural compliance for the grant of certificate by the District Magistrate and a further period of one month was allowed to the State Administration for a change in name and gender, as sought by the petitioner.

“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. 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… 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,” Court further said.

Directions were further issued to the Chief Secretary to ensure effective implementation of the 2019 Act and to establish a separate Grievance Redressal Mechanism in each District to deal with the complaints relating to violation of the Act, within a period of three months and submit a compliance report on or before 04.09.2023.

The precise issue in the present matter was whether a person who is born as a female with predominantly male orientation or vice versa has a right to get oneself to be recognized as a member of the gender of one’s choice, when the person has undergone surgical procedures for change of physical gender attributes?

Brief Background

The petitioner took birth as a female gender and she completed her studies as a female student. After completion of her studies, she got appointment on the post of physical training instructor, Grade 3 under female category, vide order dated 12.07.2013. Though the petitioner took birth as a female, she was suffering from gender identity disorder and therefore at the age of 32 she consulted a psychiatrist, who conducted her psychological evaluation and on the basis of detailed examination, opined that she had no signs of any psychiatric disorder but was only suffering from gender identity disorder.

Accordingly, Sex Reassignment Surgery was suggested to the Petitioner.

After the surgery, a certificate was issued in this regard on 09.08.2018 and the petitioner thereafter changed his name in the Official Gazette of India from Chinder Pal Kaur to Chinder Pal Singh. AADHAAR details were also altered accordingly.

On 22.09.2018, the petitioner submitted an application for change of name and gender in the service record.

The principal of the school referred the matter to the Joint Director, Secondary Education for necessary action on 01.10.2018.

Even after a lapse of three years from the date of such application, no action was taken or communicated to the petitioner, and therefore a writ petition was moved before the High Court. Counsel for the respondent refuted the contentions of the petitioner stating that at the time of joining, the gender of the petitioner was considered as per the information furnished and in case of any variation now, a decree from Civil Court in this regard should be sought first.

Case Title: Chinder Pal Singh v. Chief Secretary, Govt. of Rajasthan | SB Civil Writ Petition No. 14044 of 2021