Source: Allahabad High Court

Why in News?

• Allahabad High Court has held that a person has a constitutional right to change his/her gender via Sex Reassignment Surgery (SRS) in the matter of Neha Singh v. State of U.P. And 2 Others.

Background

• The matter pertains to a writ plea filed by an unmarried Woman (working as a constable in Uttar Pradesh Police) who claimed to be suffering from Gender Dysphoria and wished to undergo SRS.
• It was submitted by the petitioner that she had applied for necessary sanction for the SRS on March 11, 2023, from the Director General of Police, U.P. Lucknow but no decision was taken in this regard, hence instant plea was moved.
• Reliance was placed upon the Supreme Court's judgement given in the case of National Legal Services Authority v. Union of India and Others (2014) (Commonly known as NALSA case) to contend that the respondents were not justified in withholding the application of the petitioner.
  • The court in the above-mentioned case declared transgender people as the 'third gender' while giving them the right to self-identification of their gender as male, female or third gender.
  • Also, with respect to Constitutional provisions, the Court held that gender identity was integral to life and would be protected under Articles 19 and 21 of the Constitution of India, 1950 (COI), as a function of freedom of expression, privacy and dignity.
• Section 15 of the Transgender Persons (Protection of Rights) Act, 2019 was also relied upon by the petitioner which deals with health care facilities including SRS and hormonal therapy.

Court’s Observations

• Justice Ajit Kumar has observed that if in modern society, we do not acknowledge this vested right in a person, to change one's identity, we would be "only encouraging gender identity disorder syndrome".
• The Court also inquired from the State Government whether any appropriate affidavit is filed with respect to enactment of any such Act in compliance with directions issued by the SC in the NALSA case and if that is so, the same may also be brought on record.

Legal Provisions

The Transgender Persons (Protection of Rights) Bill, 2019

• Definition of a Transgender Person: Section 2(k) - "transgender person" means a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta.
• Prohibition Against Discrimination: Section 3 of the Act prohibits discrimination on the grounds
  • Education;
  • Employment;
  • Healthcare;
  • Access to, or enjoyment of goods, facilities, opportunities available to the public;
  • Right to movement;
  • Right to reside, rent, or otherwise occupy property;
  • Opportunity to hold public or private office; and
  • Access to a government or private establishment in whose care or custody a transgender person is.
• Employment: No government or private entity can discriminate against a transgender person in employment matters, including recruitment, and promotion.
• Health Care: Section 15 of the Act talks about healthcare facilities.
• Section 15 - The appropriate Government shall take the following measures in relation to transgender persons, namely: —
  • (a) to set up separate human immunodeficiency virus Sero-surveillance Centres to conduct sero-surveillance for such persons in accordance with the guidelines issued by the National AIDS Control Organisation in this behalf;
  • (b) to provide for medical care facility including sex reassignment surgery and hormonal therapy;
  • (c) before and after sex reassignment surgery and hormonal therapy counselling;
  • (d) bring out a Health Manual related to sex reassignment surgery in accordance with the World Profession Association for Transgender Health guidelines;
  • (e) review of medical curriculum and research for doctors to address their specific health issues;
  • (f) to facilitate access to transgender persons in hospitals and other healthcare institutions and centres;
  • (g) provision for coverage of medical expenses by a comprehensive insurance scheme for Sex Reassignment Surgery, hormonal therapy, laser therapy or any other health issues of transgender persons.
• Certificate of Identity for a Transgender Person: Section 5 and 6 of the Act talk about Application for certificate of identity and Issue of certificate of identity respectively.
• National Council for Transgender Persons (NCT) - Section 2(g) defines National Council as the National Council for Transgender Persons established under Section 16.
• Section 16(2) mentions about the constitution of NCT as:
  • The Union Minister in-charge of the Ministry of Social Justice and Empowerment, Chairperson, ex officio;
  • The Minister of State, in-charge of the Ministry of Social Justice and Empowerment in the Government, Vice-Chairperson, ex officio;
  • Secretary to the Government of India in-charge of the Ministry of Social Justice and Empowerment, Member, ex officio;
  • One representative each from the Ministries of Health and Family Welfare, Home Affairs, Housing and Urban Affairs, Minority Affairs, Human Resources Development, Rural Development, Labour and Employment and Departments of Legal Affairs, Pensions and Pensioners Welfare and National Institute for Transforming India Aayog, not below the rank of Joint Secretaries to the Government of India, Members, ex officio;
  • One representative each from the National Human Rights Commission and National Commission for Women, not below the rank of Joint Secretaries to the Government of India, Members, ex officio;
  • Representatives of the State Governments and Union territories by rotation, one each from the North, South, East, West and North-East regions, to be nominated by the Central Government, Members, ex officio;
  • Five representatives of transgender community, by rotation, from the State Governments and Union territories, one each from the North, South, East, West and North-East regions, to be nominated by the Central Government, Members;
  • Five experts, to represent non-governmental organisations or associations, working for the welfare of transgender persons, to be nominated by the Central Government, Members; and
  • Joint Secretary to the Government of India in the Ministry of Social Justice and Empowerment dealing with the welfare of the transgender persons, Member Secretary, ex officio.
• Offences and Penalties – They are provided under Section 18 of the Act.

Constitutional Aspect

• Gender Justice is majorly provided under Articles 15, 16 although term sex has been used instead of gender.
  • According to World Health Organization (WHO) - Gender refers to the characteristics of women, men, girls and boys that are socially constructed. This includes norms, behaviour and roles associated with being a woman, man, girl or boy, as well as relationships with each other and sex refers to the different biological and physiological characteristics of females, males and intersex persons, such as chromosomes, hormones and reproductive organs.
  • Article 15 prohibits discrimination based on Religion, Race, Caste, Sex, Place of Birth.
  • Article 16 prohibits discrimination based on Religion, Race, Caste, Sex, Place of Birth, Descent and Residence.
• In NALSA case the Apex Court opined that gender identity is provided by COI under Articles 19 & Article 21.
  • Subject to reasonable restrictions Article 19 mentions protection of certain rights regarding freedom of speech, etc.—
    • (1) All citizens shall have the right—
      • (a) to freedom of speech and expression;
      • (b) to assemble peaceably and without arms;
      • (c) to form associations or unions or co-operative societies;
      • (d) to move freely throughout the territory of India;
      • (e) to reside and settle in any part of the territory of India;
      • (g) to practice any profession, or to carry on any occupation, trade or business.
• Article 21 - Protection of life and personal liberty. — No person shall be deprived of his life or personal liberty except according to procedure established by law.