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NEW DELHI: India’s passport rules that require a transgender person to produce a certificate of gender reassignment surgery flies in the face of the Supreme court’s directive that trans people have a right to self choose their gender, the Delhi high court remarked on Monday.
The government cannot insist somebody has to undergo a sex-change operation just to obtain a passport, said a bench comprising acting chief justice Vipin Sanghi and justice Navin Chawla.
“You can classify such persons as transgender and then there can be a subclassification into trans man, trans female, whatever the orientation of the person is, whatever the person wants to declare himself or herself as, but where is the question of insistence on surgery?” the bench asked.
The remarks came while hearing a plea by a transgender woman, Lasya Kahli Singh, who challenged the passport rules which mandate a transgender person to obtain a gender reassignment certificate so that one could be reissued a passport recognizing any such person as a male or female.
The insistence on sex reassignment surgery for an individual to identify or change their sex or gender was unnecessary and violated the choice of an individual with respect to undergoing a surgical procedure to reflect the transition, the plea contended.
During the proceedings on Monday, the petitioner’s lawyer informed the court about the landmark judgment of the Supreme Court in NALSA vs Union of India in 2014, where the apex court granted constitutional recognition to transgenders as a third gender and gave them the right to have a family.
The top court had directed the government to treat transgenders as a socially and educationally backward class, entitled to reservations in educational institutions and for public appointments.
Noting this ruling, the bench remarked, “As per NALSA judgment, they have the right to decide their self-identified gender. That right was upheld. It means that a transgender person will himself or herself decide the gender and you will abide by that. This insistence is violative of Article 21 right.”
Appearing for the union government, standing counsel Ajay Digpaul sought time to take instructions on the matter. The court granted time to the Centre and posted the matter for hearing on April 22.
The plea has said that the petitioner had changed her name and her gender from male to female in December 2019. However, she was told by a Regional Passport Office to produce a “sex change certificate in hand by a surgeon” in order to get her passport reissued as a female in reference to the Passport Rules, 1980.
The plea has also said her old passport has been cancelled and the new passport has been put on hold for want of the certificate.
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