On the 1st of October, a single judge bench of the Karnataka High Court ruled that a transgender person does not have to get a District Magistrate’s certificate to request a name and gender change on their documents, even if they make the request after the coming into effect of the Transgender Persons (Protection of Rights) Act, 2019, so long as they have their identity recorded prior to the Act becoming operational.
FACTS OF THE CASE
The petitioner was assigned male gender at birth but identified herself as female from the very beginning. She underwent psychological examination and gender affirmation surgery in 2018. Thereafter, she changed her name to C and executed an affidavit to the same effect, and published her change of name in a local and a national daily as required by the change of name rules. She was also able to get an Aadhar card and a passport in her new name and female gender. However, she was unable to get the name and gender modified on her SSLC and the PUC mark-sheet.[1] Similarly the college and university which granted her a MBBS degree also refused to change her name and gender on the mark-sheet. Accordingly, the petitioner filed a writ petition seeking a writ of mandamus directing these educational bodies to issue a new mark-sheet identifying her name as C and her gender as female.
ARGUMENTS OF THE RESPONDENTS
The counsel for the respondents, particularly, the Karnataka Secondary Education Examination Board (the organisation issuing the SSLC mark-sheet), made two arguments. The first was that as per the Transgender Act of 2019, a transgender person is to seek a certificate of identity from the District Magistrate (the highest executive officer in a District). Rule 5(2) of the Transgender Persons (Protection of Rights) Rules, 2020, contemplates that such an identity certificate is a pre-requisite to a request for revising any official document. The second argument was that the Board bye-laws did not envisage any procedure for a name and gender change and therefore the mark-sheet could not be revised. By making the second argument, the respondent in essence sought to take advantage of its own inaction.
ARGUMENTS OF THE PETITIONER
The counsel for the petitioner argued that in the NALSA case, the Supreme Court had directed the Central and State governments to grant legal recognition of the gender identity of transgender persons. As the petitioner has undergone psychological evaluation as well as gender affirmation surgery, the State as well as the college and the university was bound to grant legal recognition of the same by issuing a revised mark-sheet. She argued that the refusal of the respondents to do so amounted to a violation of the Article 21 rights of the petitioner as well as the 2019 Transgender Act. In fact, the counsel also pointed out a Department of Education circular passed by the State of Karnataka to the CBSE and the Pre-University Education Board in the State to accede to change of mark-sheet requests in accordance with the NALSA verdict.
Finally, the counsel for the petitioner argued that since the petitioner had undergone the medical changes much earlier than the coming into effect of the 2019 Act, the provisions of the Act did not apply to her, viz., the requirement of getting a gender identity certificate from the District Magistrate.
HOLDING OF THE COURT
While arriving at the judgment, the court noted that the NALSA case had observed that the recognition of gender identity was essential to the dignity of a person and was therefore a part of the dignity guarantee under Article 21 of the constitution. At the same time, the self-determination of gender identity was an essential part of the positive personal autonomy guarantee under the realm of Article 21 personal liberty.
Along with the findings of NALSA, the court also noted the Transgender Persons (Protection of Rights) Rules, 2020 which came into effect on the 25th of September, 2020. This was after the present case was reserved for judgment but before the verdict was delivered. The general rule of interpretation is that if there are changes in procedural law during the pendency of a suit, the parties are required to comply by those changes, unless the law provides otherwise. Section 3 of these Rules provided that those persons who have officially recorded the change in their gender before the Act came into force, would not be required to obtain an identity certificate from the District Magistrate. In this case, the petitioner had recorded her self-identified gender as female in the Aadhar card and the passport before the 2019 Transgender Act came into force. By force of Section 3 of the 2020 Rules, the petitioner was exempt from the requirement of obtaining the identity certificate, and could request modified mark-sheets from her schools, colleges and universities without such a certificate. The High Court passed a writ of mandamus accordingly, directing the various respondent educational institutes to issue revised mark-sheets to the petitioner recording her new name and self-determined gender identity.
I submit that this ruling should apply to all transgender persons who have recorded their gender identity in official documents before the coming into force of the Act (i.e 5th of December, 2019), regardless of whether they have undergone a psychological evaluation or gender affirmation surgery.
Read in conjunction with this post which argues that requiring transgender persons to undergo medical and psychological testing before recognizing their self-determined gender violates the NALSA ruling, for instances occurring prior to the passage of the 2019 Act. In addition, for instances after the passage of the Act, I have argued here that the Act neither clearly outlaws nor clearly requires any psychological and surgical intervention as a prerequisite to obtaining an identity certificate. The 2020 Rules clarify that to obtain an identity certificate which certifies one as transgender, one needs to have undergone a pyschological evaluation but no surgical intervention (Rule 5 read with Form 3), whereas to obtain a certificate in a gender different from the one assigned at birth, one also needs to undergo a surgical intervention as per Rule 6 read with Form 4 (which also implies a psychological evaluation, which is generally a pre-requisite to medical intervention in India).
[1] At the time the petition was taken up for hearing, the Department of Pre-University Education revised her mark-sheet as requested.