Tag Archives: #genderchange #constitutionalright

CASE TITLE: Neha Singh vs. State Of U.P. And 2 Others [WRIT – A No. – 7796 of 2023]

DECIDED ON: 18.08.2023

CORAM: Hon’ble Ajit Kumar,J.

INTRODUCTION

Emphasizing the “constitutionally acknowledged” entitlement for an individual to transition their gender using surgical procedures, the Allahabad High Court recently instructed the State DGP (Director General of Police) to address a request submitted by a female constable seeking approval for a Sex Reassignment Surgery (SRS).

Justice Ajit Kumar, presiding over the bench, also remarked that if contemporary society fails to recognize this inherent right of an individual to alter their identity, it would effectively promote the prevalence of “gender identity disorder syndrome”.

FACTS

These remarks were put forth by the bench during the consideration of a written plea submitted by an unmarried Woman Constable employed by the UP Police. The constable, asserting her experience of Gender Dysphoria, aimed to undergo a Sex Reassignment Surgery (SRS) in order to fully align her identity and appearance as a male, reflecting authentic male physical characteristics.

The petitioner’s legal representative conveyed that on March 11, 2023, the petitioner had formally sought authorization for the SRS from the Director General of Police in Lucknow, UP. However, as no decision had been reached in this matter, the present plea was presented to the court.

The petitioner’s counsel predominantly leaned on the Supreme Court case titled “National Legal Services Authority v. Union of India and Others,” (2014) 5 SCC 438. This case established that the respondents were unjustified in withholding the petitioner’s application. Worth noting is that within this same case, the Supreme Court had recognized transgender individuals as the ‘third gender,’ granting them the right to independently identify as male, female, or third gender.

The argument drew from the 2014 Supreme Court ruling, where gender identity was affirmed as an integral facet of an individual’s dignity. Thus, the respondent authorities were deemed duty-bound to render a decision on the petitioner’s matter.

The petitioner’s representative also referred to Section 15 of the Transgender Persons (Protection of Rights) Act, 2019, which pertains to healthcare provisions, including Sex Reassignment Surgery and hormonal therapy.

Lastly, the recent verdict of the Rajasthan High Court was cited. In this ruling, a Physical Training Instructor was permitted to modify their name and gender in their employment record after undergoing sex reassignment surgery.

Considering these submissions, the Court underscored that if an individual experiences gender dysphoria to the extent that, apart from physical attributes, they also possess the emotions and characteristics of the opposite gender, resulting in a significant misalignment between their personality and physical body, they indeed hold a “constitutionally acknowledged right to change their gender through surgical intervention.”

CASE ANALYSIS AND DECISION

Given the circumstances outlined above, and having identified no valid reasoning from the Director General of Police for retaining the petitioner’s application, the Court instructed the DGP to promptly address the pending application submitted by the petitioner, strictly adhering to the judgments cited in the order.

Additionally, the Court requested the state government to submit a suitable affidavit detailing whether they have enacted any legislation in alignment with the directives issued by the Supreme Court in the NALSA case. If such legislation has been enacted, it should be included in the record.

The Court further emphasized that if the state government has not yet established such legislation or regulations, they should ensure the creation of such legislation that mirrors the Central legislation. A comprehensive affidavit should also be submitted by the state government, outlining the progress made in this matter by the upcoming scheduled date.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Click here to view the Judgement.

Written by- Mansi Malpani