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

Allowing a Physical Training Instructor to have his name and gender changed in his service record following sex reassignment surgery, the Rajasthan High Court stated that a human being’s right to choose his or her sex or gender identity is integral to his or her personality.

The High Court also stated that it is one of the most fundamental aspects of self-determination, dignity, and freedom.

Justice Anoop Kumar Dhand stated that everyone is entitled to enjoy all human rights that constitute a basic necessity for survival, without discrimination based on sexual orientation or gender identity.

“The most fundamental aspect of life is gender identity, which refers to a person’s intrinsic value of being male or female. There are times when the human body is not formed with all of its proper attributes, resulting in genital anatomy problems, and many of them do not choose to undergo gender reassignment surgery to change their gender,” the court stated.

According to the court, everyone on the earth has the right to be treated with respect and decency, regardless of gender. It further added that in the past, male and female were thought to be “two biological sexes,” but that “advanced science has proven that there are more genders than just cisgender.”

“According to the Rigveda, three types of genders have been considered in Hindu mythology – the Male, which is the ‘Purush,’ the Female, which is the ‘Prakriti,’ and the third gender, which is the ‘Tritiya Prakriti.” In recent times, modern Indian society has regarded them as the third gender; otherwise, no such status was officially granted to them. Still, not everything is well, and third-gender people are battling to be accepted into civic life.”

The petitioner, a female, was employed as a Physical Training Instructor, Grade III, under the General Female Category. She was diagnosed with Gender-Identity Disorder at the age of 32. She saw a psychiatrist, who recommended that she have a Sex Reassignment Surgery.

The petitioner began identifying as a male after undergoing psychological treatment and gender reassignment surgery (Female to Male). In addition, the expert Urologist Doctor had provided a Certificate in this regard. The petitioner successfully changed his name in the Official Gazette and his Aadhar Card after obtaining the status of male gender.

Following that, he requested that his employer change his name and gender in his service record. Despite filing the application over three years ago, the petitioner’s name and gender were not changed in his service record. As a result, he filed the current writ suit to challenge the employer’s inaction/delay.

It should also be noted that the petitioner married after the gender reassignment surgery and had two sons from his marriage.

According to the court, under the Transgender Persons (Protection of Rights) Act of 2019, a transgender person has the right to be recognised not only as a transgender person, but also as having a right to 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 to aid his self-perception as a member of the said gender, would definitely be recognised as a member of the said gender, and he is entitled to have his name and gender changed and corrected in his service record.”

While noting that the petitioner has already married and has two kids, the court stated that if the name on his service record is not rectified, it will be very difficult for him to clear his standing and identity in society, as well as for his wife and children to get service benefits.

The court asked the petitioner to submit an application before the District Magistrate with jurisdiction, and directed the District Magistrate to verify the petitioner’s gender reassignment and, if satisfied, issue the appropriate certificate.

“Such procedure shall be completed by the District Magistrate within sixty days of the petitioner’s application before him, accompanied by a certified copy of this order. Petitioner shall be free to approach the authorities concerned, i.e., the respondents, on the basis of the certificate given by the District Magistrate, who shall take urgent steps to change the name and gender of petitioner in his service record. Such exercise shall be completed within one month of the date the petitioner approaches the respondents with the certified copy of this order and the certificate issued to him by the District Magistrate,” the Court stated.

The court also directed the Chief Secretary of the State to instruct all District Magistrates in the State to effectively and positively implement the provisions of the Transgender Persons (Protection of Rights) Act of 2019 and the Rules of 2020, and to establish a separate Grievance Redressal Mechanism Forum in each District of the State to deal with complaints relating to violations of the provisions of this Act and to provide all benefits of the provisions of this Act.

“Within three months of receipt of a copy of this order, the Chief Secretary is expected to do the needful exercise for effective implementation of the provisions contained in this Act and submit the compliance report to this Court on or before 4^th June, 2023,” the court stated.