The Delhi High Court on Monday said passport rules requiring a transgender person to produce a certificate of gender reassignment surgery for issuance of a passport with declared sex is prima facie violative of the fundamental right to life and personal liberty.
“You should change your rule…Who are you to say get the certificate of surgery? This is violative of Article 21 (of the Constitution) right?” a Bench of Acting Chief Justice Vipin Sanghi and Justice Navin Chawla remarked.
The High Court said the passport rule, in so far as it requires a transgender person to produce a certificate of gender reassignment surgery, was in the teeth of the Supreme Court’s judgment which led to the recognition of transgender people as the ‘third gender’.
“You cannot insist on somebody to undergo a sex-change operation for that (passport) purpose. You can classify such persons as transgenders and then there can be sub-classification into trans man, trans woman, 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 remarked.
The High Court said that some person may not want to undergo surgery but identifies himself or herself as a male or female. It granted a week’s time to the Centre’s counsel to take instructions on the issue while posting the case for further hearing on April 22.
The High Court was hearing a plea by a transgender person who was aggrieved by the non-issuance of a passport by the authorities with a change in name and gender. The petitioner claimed that she was issued an Aadhaar card, PAN card, and a Voter ID under the changed name and gender, but not a passport.
The petitioner was born a male and subsequently changed their gender to female by way of a self-declaration on an affidavit in 2019. She said the insistence on sex reassignment surgery in order for an individual to identify or change their gender is unnecessary and violative of the choice of the individual with respect to undergoing a surgical procedure to reflect the transition.
“The petitioner has already undergone facial feminisation surgery from a trusted doctor in Bangkok. She wishes to undergo the rest of her gender reassignment procedures/ surgeries from the same doctor in Bangkok,” the plea said.
The plea, filed through advocates Oindrila Sen and Siddharth Seem, said it was imperative for her to undergo her Sex Reassignment Surgery (SRS) within a period of one year from starting on Hormone Replacement Therapy (HRT).
It said she as a part of her HRT has been prescribed testosterone blockers. The side effects of testosterone blockers are manifold including adverse impacts on the kidney and the liver function. I have been recommended by the doctors to undergo her SRS within a year of starting on HRT to avoid the increased risk of side effects, she said.
