New Delhi, April 11: The Passport Rules of 1980 requiring a transgender person to produce certificates of gender reassignment surgery for issuance of passport with declared sex is prima facie violative of Article 21, the Delhi High Court remarked on Monday, reports Bar and Bench.
A Division Bench of Acting Chief Justice Vipin Sanghi and Justice Navin Chawla remarked that the particular rule is, prima facie, in teeth of the Supreme Court’ judgment in the NALSA case and asked the Central government to consider amending the same.
“You should change your rule. You should say what is the orientation of the transgender person. You leave it to person to decide their orientation. Who are you to say get he certificate of surgery? This is the violative of Article 21 right? Come back in a week and please advise your client to have flexibility in this rule,” Acting Chief Justice Sanghi said.
The High Court directed the Central government’s counsel to come up with the instructions on the issue in a week and listed the matter for hearing again on April 22, adding it will not be passed over or adjourned on that date.
The Court was hearing a petition filed by a woman Lasya Kahli challenging the Passport Rules of 1980 to the extent it requires a sex change certificate from a hospital to enable a transgender person to get their passport re-issued with their declared sex (“Female” or “Male”).
The Court was told that if a person changes their sex from male to female or female to male and wants passport issued under the “Transgender” category, only a declaration is required. In case they want the passport to be issued under the “Male” or “Female” category, then a medical certificate is required.
The Bench, after examining the NALSA judgment, remarked that the government should amend the rule and that what a person identifies as should be left to them.
“It appears that, prima facie, in so far as the rules require transgender persons to produce certificate of sex reassignment surgery (SRS)/gender reassignment surgery (GRS) is in the teeth of the aforesaid judgment of the Supreme Court,” the Bench noted in its order.
In her petition, Kahli had said that she had changed her name and her gender from male to female in December 2019.
The petitioner was, thereafter, able to get her Aadhar Card, PAN Card and Voter ID re-issued with requisite changes to her name and gender.
She was, however, told by the Regional Passport Office concerned to produce a “sex change certificate in hand by a surgeon” in order to get her passport re-issued as Female in terms of Entry in Serial Number 39 in Table 3 of the Passport Rules.
The petitioner was informed that her old passport had been cancelled and the new passport had been put on hold for want of the certificate.
It was the petitioner’s concern that she would not be able to travel to Bangkok, Thailand for gender reassignment surgery without the passport.
The petitioner argued that the requirement to produce certificate from hospital that one “underwent sex change operation successfully” is arbitrary, illegal, violative of Article 21 of the Constitution.
Asking for any documents regarding her gender reassignment surgery would be in violation of the Transgender Persons (Protection of Rights) Rules, 2020 and the Transgender Persons (Protection of Rights) Act, 2019, the petitioner submitted.
The petitioner also contended that insistence on sex reassignment surgery for an individual to identify or change their sex/gender is unnecessary and violative of the choice of the individual with respect to undergoing a surgical procedure to reflect the transition.
