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Every Human Being Has Right To Choose His Or Her Gender Identity : Rajasthan High Court

Law Finder Doc Id #2231998

While ruling on one of the most significant legal point directing impacting every human being, the Rajasthan High Court Bench at Jaipur in a most learned, laudable, landmark, logical and latest judgment titled Chinder Pal Singh v. The Chief Secretary, Govt. of Rajasthan & 4 Others in SB Civil Writ Petition No. 14044/2021 that was reserved on May 17 and then finally pronounced on May 25, 2023 has waxed eloquent to hold clearly, cogently and convincingly 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." The Single Judge Bench comprising of Hon'ble Mr Justice Anoop Kumar Dhand very rightly, robustly and rationally 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. This most commendable, courageous and creditworthy judgment deserves to be emulated by all the courts in India.

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon'ble Mr Justice Anoop Kumar Dhand of the Rajasthan High Court Bench at Jaipur sets the ball in motion by first and foremost stipulating in para 1 that, "The issue involved in this petition is "Whether a person who is born as a female with predominantly male orientation or vice versa has a right to get oneself to be recognised as a member of the gender of one's choice, when the person has undergone surgical procedures for change of physical gender attributes?." 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. It is in the above background that the issue involved in this petition is required to be considered."

To put things in perspective, the Bench envisages in para 2 that, "The petitioner took birth as a female gender and she completed her studies as a female student and after completion of her studies she got appointment on the post of Physical Training Instructor, Grade Three (for short `PTI Gr.-III) under General Female Category vide order dated 12.07.2013 and in the service record her status has been mentioned as `Female'. Though the petitioner took birth as female child and she was assigned female gender at the time of her birth, but she was suffering from Gender Identity Disorder, hence at the age of 32 years she consulted a Psychiatrist who conducted her psychological evaluation and on the basis of detailed clinical examination it was opined that the petitioner has no indication of any psychiatric disorder and she was suffering only with Gender Identity Disorder and she was found fit for `Sex Reassignment Surgery" vide Annexure-4. Thereafter the petitioner underwent Gender Reassignment Surgery (Female to Male) with Phalloplasty - Penis Prosthesis in the year 2014-2017 at Kokilaben Dhirubhai Ambani Hospital at Andheri (West) Mumbai and after undergoing the surgery, the petitioner became male from female. After this surgery, the petitioner recovered completely and became a Male with functional shaft and was on hormone therapy. The consultant Urologist Doctor issued a Certificate vide Annexure-5 in this regard on 09.08.2018. After getting the status of male gender, the petitioner changed his name in the Official Gazette of India on 08.09.2018 and his name was changed from Chinder Pal Kaur to Chinder Pal Singh. Thereafter the name of petitioner was changed as Chinder Pal Singh even in his Aadhar Card No. 935164446293."

Briefly stated, the Bench states in para 3 that, "The petitioner submitted an application on 22.09.2018 in the office of Principal of the School for change of his name and gender in his service record. The Principal referred the matter to the Joint Director, Secondary Education, for necessary action on 01.10.2018. But even after passing of more than three years the name and gender of the petitioner has not been changed in his service record. Under these circumstances, the petitioner has knocked the doors of this court by way of filing this petition."

Be it noted, the Bench notes in para 7 that, "The petitioner identifies himself as a Male due to his sexual orientation and has gone a psychological treatment and gender reassignment surgery. Now he is fighting battle for his recognition as `Male' and change of his name and gender in his service record. But the respondents are rigid not to make these changes in his service record."

Most fundamentally, the Bench enunciates in para 8 that, "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."

Most remarkably, the Bench expounds in para 10 that, "Right to equality is guaranteed by our Constitution of India which is our basic Fundamental Right which we inherit since we become a part of our mother's womb. 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. Till the past, we used to consider Male and Female as two biological sex but the developed science has proved that there are more genders than just cisgender."

While citing the relevant case law, the Bench observes in para 11 that, "The Apex Court in the case of National Legal Services Authority v. Union of India (2014) 5 SCC 438, has considered the issue of recognition of self-perceived gender identity and had specifically held that the transgender persons are also entitled to basic human rights including right to life with human dignity and right to privacy and freedom of expression. It has been held that right of a person to self-perceived gender identity is a part of his/her fundamental rights guaranteed under Articles 14 and 21 of the Constitution of India and a person cannot be discriminated on the basis of sexual orientation or gender identity different from that assigned at the time of birth."

Most significantly, the Bench mandates in para 15 that, "Section 7 of the Act of 2019 provides that in case after issuance of a certificate under Section 6(1) the transgender person undergoes surgery to change gender, such person may make an application, along with a certificate issued to that effect by the Superintendent or Chief Medical Officer of the medical institution in which that person has undergone surgery, to the District Magistrate for revised certificate in the prescribed manner. On such an application being made, the District Magistrate on being satisfied, is required to issue a certificate indicating change in gender and such change would entitle a person to get the required changes made in the birth certificate and other official documents relating to their identity. The very purpose of bringing in force the Act of 2019 is to provide equality and respect to the transgender persons. The Act of 2019 is a social beneficial legislation and therefore, this Act cannot be given an interpretation which would defeat the very purpose for which the same is brought in force. It has to be interpreted in a manner that solemn purpose for which it was legislated, is achieved. The purpose is to give recognition to transgender persons as they perceived themselves and, in case, they undergo a gender reassignment procedure, to provide them appropriate changed certificates and identity documents. Section 7 is required to be interpreted in a manner that the transgender persons who are issued a certificate under Section 6 or persons like petitioner who had undergone the gender reassignment procedure prior to coming into force of the Act of 2019, both are entitled to apply before the District Magistrate for issuance of a certificate indicating change in gender. Only on the basis of such a certificate issued by the District Magistrate under Section 7 of the Act, the transgender person can apply for change in their birth certificate and other official documents relating to their identity. Denying such a right to person who had already undergone the gender reassignment procedure, would frustrate the very purpose of the Act, as large number of persons would be left out discriminated in the society."

To be sure, the Bench mentions in para 16 that, "Perusal of the provisions of the Act of 2019 clearly indicates that this Act recognizes the rights of transgender persons to a life with dignity and prohibits discrimination against them. The object of this enactment is to give effect to the rights guaranteed to such persons under Articles 14, 15, 19 and 21 of the Constitution of India."

What's more, the Bench propounds in para 17 that, "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."

Do note, the Bench notes in para 18 that, "It is worthy to note here that after gender reassignment surgery, the petitioner has changed his gender and has become a Male and performed marriage and from the wedlock, two sons have born. Now it is very difficult for the petitioner to clear his status and identity in the society. If the identity of petitioner is not corrected in his service record, it would be difficult for the wife and children of the petitioner to get service benefits of the petitioner."

Further, the Bench directs in para 19 that, "Looking to the provisions contained under Section 7 of the Act of 2019, the petitioner is directed to submit an application before the District Magistrate having jurisdiction. The District Magistrate shall follow the procedure contained under the Act of 2019 and the Rules of 2020 made thereunder 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."

Furthermore, the Bench then also directs in para 20 that, "Before parting with the order, the Chief Secretary of the State is directed to instruct all the District Magistrates of the State to implement the provisions of the Act of 2019 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."

Finally, the Bench concludes by directing in para 25 that, "List this matter on 04.09.2023 to check the compliance of this order."

All told, this notable judgment by the Rajasthan High Court Bench at Jaipur makes it indubitably clear that every person has a right to choose his or her gender identity. It was also made pretty clear by the Court that this right to choose is one of the most basic aspects of self-determination, dignity and freedom. It was also most commendably underscored 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. Very rightly so!

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