Madras HC issues notice in plea challenging Passport Rules insisting on SRS certificate for transgender persons
The Madras High Court has issued notice in a petition challenging provisions of the Passport Rules, 1980 (passport rules) which require the submission of Sex Reassignment Surgery (SRS) certificate by transgender persons for gender determination as illegal and unconstitutional.
The petition was filed by Sivakumar TD, co-founder of “Nirangal”, a non profit organization that focuses on gender and sexuality rights as well as for the betterment of marginalized sections of the society.
Notice was issued on Wednesday by a division bench of Justices M Sathyanarayanan and N Seshasayee to the Central Government, i.e Ministry of Law and Justice and Ministry of External Affairs.
The petitioner has registered his objection to Entry 39 of Table 3 and Entry 7 under Section E of Table 2 of the passport rules which requires the submission of “certificate from hospital where he/she underwent sex change operation successfully”. It is the petitioner’s contention that the same is violative of Articles 19 (1) (a) and 21 of the Constitution of India. Further the same is also violative of the Supreme Court’s judgment in National Legal Services Authority v. Union of India and others (NALSA case), the petitioner argues. In this regard, the petition states,
“Supreme Court has authoritatively held that any insistence for sex reassignment surgery (SRS) for declaring one’s gender is immoral and illegal. The Hon’ble court clearly held that a person’s right to choose and express a gender identity fell within that ambit of Article 19 (1) (a). The right to legal recognition of the chosen gender identity forms the basis of a person’s personal autonomy, freedom and dignity and an important facet of rights under Article 21 of the Constitution of India.”
It has been highlighted that while the Supreme Court itself has clarified that the insistence on SRS certificate was illegal and unconstitutional, the passport rules continue to insist upon certification from hospital where s/he/they underwent the sex change operation.
The petitioner has submitted that due to the insistence on SRS certificate, several transgender persons were facing difficulties in getting their passports changed to reflect their self-identified gender. The petition also relied on the case of Satwant Singh Sawhney v. D. Ramarathnam, wherein it was held,
“the gender identity was an integral part of sex and no citizen can be discriminated on the ground of gender identity, including those who identify as third gender. “
In this backdrop, the petitioner also points out that it is not always necessary that a transgender person undergoes SRS. As noted in the plea,
“……persons with gender dyshoria may or may not undergo medical intervention to manifest their preferred identity. I state that transgender persons may retain their sexual organs and yet prefer to identify as belonging to their self-identified gender.”
As pointed out by the petitioner, some transgender persons only undergo hormone therapy and and do not wish to perform Sex Reassignment Surgery (SRS). The petition adds that the “extent of medical intervention” opted by such individuals could depend on numerous factors such as individual’s need, choices, medical feasibility etc. Moreover, in various cases, there are also practical difficulties involved in procuring the SRS certificate.
“Many transgender persons resort to undergoing surgery in private hospitals because until recently many surgeons were reluctant to perform these surgeries and even if they performed them, were unwilling to provide proper certificates. Thus, to insist on a certificate from a hospital where surgery was done is highly impractical and cumbersome and makes the process of obtaining legal recognition of … gender identity next to impossible.”
Hence, the petitioner prayed for the intervention of the High Court to declare such passport rules requiring production of SRS certificate as unconstitutional and illegal. The matter is expected to be taken up by the High Court next month.
It may be noted that another plea, calling for the issuance of government identification cards to transgender and intersex persons in accordance with the principle of self-identification is also pending before the same Bench of the High Court.
Courtesy : Bar And Bench