Cannot insist to undergo gender reassignment surgery for issuance of passport: Delhi HC

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The Delhi High Court 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 and authorities cannot insist someone undergo such operation.

The high court said the rule was prima facie in the teeth of the Supreme Court's judgement which led to the recognition of transgender people as the 'third gender'.

It granted one week to the counsel for the Centre and asked him to take instructions on the issue and listed the matter for April 22.

"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? Come back in a week and please advise your client to have flexibility in this rule," a bench of Acting Chief Justice Vipin Sanghi and Justice Navin Chawla said.

The court further said, "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? One person does not want to undergo surgery but identifies himself or herself as a male or female."

Referring to the apex court's NALSA judgement, the bench said as per that verdict, transgenders have a right to decide their self-identified gender, and 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," the bench said.

It said that the passport rules, in so far as it requires a transgender person to produce a certificate of gender reassignment surgery are in the teeth of the apex court's judgement.

The Centre was represented through standing counsel Ajay Digpaul.

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 and urged the high court for the issuance of the travel document with the requisite changes.

The high court had in May 2021 sought a response of the Ministry of External Affairs on the plea which claimed that the petitioner was issued an Aadhaar card, PAN card, and a Voter ID under the changed name and gender, but not a passport.

"That since all the documents of the petitioner, including her Aadhaar card, Voter ID as well as her PAN card have been issued to her with the required changes in name and gender on the basis of the affidavit dated December 2, 2019, the petitioner is also entitled to be issued her new passport with the same changes as having been made in her other documents," the petition has said.

The petitioner, who was born a male and subsequently changed his gender to female by way of a self-declaration on an affidavit in 2019, has also challenged a requirement under the Passport Rules 1980 to submit a "sex-change certificate" from a hospital for issuance of the travel document.

In the petition, filed through advocates Siddharth Seem and Oindrila Sen, the petitioner has claimed that the requirement for a sex-change certificate was "illegal and unconstitutional" and it has prevented several transgender persons in getting their passports to reflect their self-identified gender.

"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.

"Presently, the petitioner does not have a passport and would therefore be unable to travel anywhere for her future surgeries," the plea has said.

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