The Rajasthan High Court while holding that gender identity is the most fundamental aspect of life which refers to a person’s intrinsic value of being a male or female, has directed the District Magistrates of the State to establish independent Grievance Redressal Forums to implement the provisions of the Transgender Persons (Protection of Rights) Act, 2019 (Act) effectively.

After referring to the Supreme Court's verdict in National Legal Services Authority v. Union of India (2014) 5 SCC 438, a bench of Justice Anoop Kumar Dhand observed, "...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".

Advocate Arvind Sharma appeared for the petitioner in the case while Advocate S. Zakawat Ali, Addl. G.C. appeared for the respondent.

The question before the Court 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.

The petitioner in this case was born a female and after completing her studies, got appointment to the post of Physical Training Instructor, Grade III under the General Female Category. In the service record, her status was mentioned as ‘Female’.

However, at the age of 32, upon psychological evaluation was diagnosed with a Gender Identity Disorder and she was found fit for Sex Reassignment Surgery.

Pursuant to the surgery, the petitioner underwent Phalloplasty - Penis Prosthesis and after undergoing the surgery, became a male from a female. After getting the status of male gender, the petitioner changed his name in the Official Gazette.

Consequently, the petitioner submitted an application to the Principal of the School for change of his name and gender in the service record. The Principal, referred the matter to the Joint Director, Secondary Education, for necessary action and even after more than three years, the name and gender of the petitioner were not changed in his service record.

The petitioner submitted that unless the name and gender of the petitioner is changed in his service record, it would be difficult for him and his family to get the benefits of his service. However, the respondents contended that until and unless such declaration is issued by a Civil Court, the name and gender of the petitioner cannot be changed in her service record.

The Court after taking note of the submissions made, arguments advanced and the enunciated principle, held, "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".
The bench also took note of the fact that the petitioner is married with two sons, and if the identity of the petitioner is not corrected in his service record, it would
be difficult for the wife and children of the petitioner to get service benefits.

Referring to the Transgender Persons (Protection of Rights) Act, the bench observed, "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".

“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", the judgment further read.

Accordingly, while listing for September 4, 2023 to check the compliance of the order, the bench directed 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 Court also directed the Chief Secretary to do the needful exercise for effective implementation of the provisions contained under the 2019 Act within three months.

Cause Title: Chinder Pal Singh v. The Chief Secretary, Govt. Of Rajasthan [S.B. Civil Writ Petition No. 14044/2021]

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Justice Anoop Kumar DhandRajasthan High CourtTransgender

Agatha Shukla