The Central Government by enacting The Transgender Persons (Protection of Rights) Act, 2019 Should be liberally interpreted: Allahabad High Court

Court No. 5 Case : MISC. SINGLE No. 266117 Petitioner : Shivanya Pandey Respondent : State Of U.P Thru Prin Secy Secondary Edu Lko & Ors Counsel for Petitioner : Shubham Tripathi Ali Jibran Aman Khan Suyash Manjul Counsel for Respondent : C.S.C Kirti Srivastava Hon ble Vivek Chaudhary J 1. Heard Sri Mohd. Aman Khan learned counsel for petitioner and learned Standing Counsel for the State. 2. Present writ petition is filed by the petitioner Shivanya Pandey praying that respondent no.2 Board of High School and Intermediate Education Allahabad U.P.)may be directed by this Court to change name and gender of the petitioner in her matriculation mark sheet and thereafter respondent no.3 Council for the Indian Schools Examination New Delhimay also change the name and gender in the mark sheet of intermediate of the petitioner Further a mandamus is also sought commanding the respondent no. 2 and 3 respectively to amend their regulations and guidelines with regard to change of gender and names 3. Facts of the case are that petitioner with her earlier name as Vikas Pandey and gender as male appeared and passed High School on 10.06.2011 from the Children Academy Public School Lucknow affiliated to the U.P. Board and Intermediate in the year 2013 from the Lucknow Public Collegiate Lucknow affiliated to the CISE Board. Petitioner was suffering from gender dysphoria and therefore underwent gender reassignment surgery on 23.10.2017 from male to female at Fortis Hospital New Delhi. On 27.05.2017 petitioner got published a gazette notification in respect of change of her name from Vikas Pandey to Shivanya Pandey and gender from male to female . Petitioner also got an adhar card and pan card issued in her new name and gender i.e. Shivanya Pandey female. With the change of name and gender petitioner now required change of the same in her school certificates also. For the said purposes on 04.06.2017 petitioner applied for the change in her High School mark sheet and certificates. The form required to be filled up for the said purposes had columns for change of name and other details but was silent about the change in gender Petitioner approached different authorities and Director Ministry of Social Justice and Empowerment New Delhi also sent a letter dated 22.06.2017 to the Secretary U.P. Board requesting them to change petitioner s name and gender Since all the required documents were provided by the petitioner the principal of Children Academy Public School also wrote a letter dated 03.07.2017 to the Secretary U.P. Board requesting for a change in petitioner s name and gender The Secretary U.P. Board by a letter dated 14.07.2017 sought a clarification from the State Government as neither the rules nor the Intermediate Education Act 1921 had any provisions with regard to these new circumstances. On a reminder of the Director Ministry of Social Justice and Empowerment New Delhi Director of Secondary Education U.P. also issued a letter dated 17.08.2017 to the State Government requesting it for taking appropriate measures in the matter. Meanwhile the Secretary U.P. Board by letter dated 07.09.2017 also required the petitioner to submit her medical certificate with regard to the gender change issued by the Chief Medical Officer. The State Government vide letter dated 15.07.2017 also communicated its decision and required the Secretary U.P. Board to consider the case of petitioner. The matter in the aforesaid background was placed before the Examination Committee of the U.P. Board. The Examination Committee in its meeting dated 10.01.2018 decided that changes of name and gender as requested by the petitioner cannot be made as neither the Intermediate Education Act 1921 nor regulations framed there under contain any such provision. The decision of the Examination Committee was communicated to the petitioner by letter dated 27.01.2018. By letter dated 02.02.2018 original mark sheet of the petitioner was also returned to her without affecting any changes. In the said background petitioner has approached this Court with the prayers aforesaid 4. Learned counsel for the petitioner submits that with the development of medical science this challenges of conflict in personality and body stands resolved and in the given circumstances it is incumbent upon different authorities to make provisions for change of older records. He relies upon the judgment passed in case of National Legal Services Authority Vs. Union of India & Others reported in 5 SCC 438] Act 2019and by framing rules under the same. Section 2(k) of the aforesaid Act 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 womanperson with intersex variations genderqueer and person having such socio cultural identities as kinner hijra aravani and jogta 5. Section 3 of the Act prohibits discrimination against any transgender person on the grounds mentioned in the said section which includes: “(a) denial or discontinuation of or unfair treatment in educational establishments and services thereof e) denial or discontinuation of or unfair treatment with regard to access to or provision or enjoyment or use of any goods accommodation service facility benefit privilege or opportunity dedicated to the use of the general public or customarily available to i) the denial of access to removal from or unfair treatment in Government or private establishment in whose care or custody a transgender person may be.” 6. Section 4 of the Act provides a transgender person to have a right to be recognized as such and a transgender person under Section 4(2) of the Transgender Protection Act 2019 is also given a right to self perceived gender identity. Section 5 provides right to transgender person to apply before the District Magistrate by way of an application for issuance of certificate of identity as transgender person in the manner prescribed. Under Section 6 the District Magistrate is required to issue a certificate upon an under Section 5 as per the procedure prescribed. The gender in all official documents is recorded as per certificate issued under Section 6(1). Section 7 provides that in case after issuance of a certificate under Section 6(1) the transgender person undergoes surgery to change gender such person may make an application along with a certificate issued to that effect by the Superintendent or Chief Medical Officer of the medical institution in which that person has undergone surgery to the District Magistrate for revised certificate in the prescribed manner. On such an application the District Magistrate on being satisfied is required to issue a certificate indicating change in gender and such change would entitle a person to get the required changes made in the birth certificate and other official documents relating their identity. 7. Learned counsel for petitioner submits that as per the judgment of Supreme Court passed in NALSA case(supra) as well as procedure of the Act petitioner is entitled for issuance of appropriate certificate with regard to change of gender. 8. Opposing the same learned Standing Counsel submits that with regard to change of gender the certificate can only be issued under Section 7 of the Act to a person who is having a certificate under Section 6 of the Act. Since petitioner is not having a certificate under Section 6 and had changed his gender before coming into the force of the Act petitioner is not entitled to apply under Section 7 of the Act 9. The very purpose of bringing in force the Act is to provide equality and respect to the transgender persons. The Act is a socially beneficial legislation and therefore this Act cannot be given an interpretation which would defeat the very purpose for which the same is brought in force. It has to be interpreted in a manner that solemn purpose for which it is legislated is achieved. The purpose is to give recognition to transgender persons as they perceived themselves and in case they undergo a gender reassignment procedure to provide them appropriate changed certificates and identity documents. Therefore Section 7 of the Act cannot be given a meaning confined in the manner argued by learned Standing Counsel. Section 7 is required to be interpreted in a manner that the transgender persons who are issued a certificate under Section 6 or persons like petitioner who had undergone the gender re assignment procedure prior to coming into force of the Act both are held entitled to apply before the District Magistrate for issuance of a certificate indicating change in gender. Only on the basis of such a certificate issued by the District Magistrate under Section 7 of the Act the transgender person can apply for change of their birth certificate and other official documents relating to their identity. Denying such a right to persons who had already undergone the gender re assignment procedure would frustrate the very purpose of the Act as large number of persons would be left out discriminated in the society 10. In view of the aforesaid petitioner is permitted to submit an application under Section 7 of the Act before the District Magistrate. The District Magistrate shall broadly following the procedure under the Transgender PersonsAct 2019 and Transgender Persons Rules 2020 get the fact of the gender re assignment verified and on being satisfied issue the required certificate to the petitioner. Such a procedure shall be completed by the District Magistrate within a period of 60 days from the date petitioner applies before him along with a certified copy of this order. On the basis of the certificate issued by the District Magistrate petitioner shall be at liberty to approach the authorities concerned i.e. Respondent no.2 Secretary Board of High School and Intermediate Education Allahabad and respondent no.3 Chairman Council for the Indian Schools Examination New Delhifor changing her educational records and issue her fresh changed mark sheets and certificates. Respondent no.2 and 3 shall also take immediate steps for change of name and gender in educational mark sheets and certificates of the petitioner and issue fresh changed mark sheets and certificates to her as per the certificate issued by the District Magistrate to the petitioner Such an exercise would be completed within a period of four weeks from the date petitioner approaches the Boards along with a certified copy of this order and the certificate issued to her by the District Magistrate 11. With the aforesaid present writ petition stands allowed Order Date : 26.11.2021 Vivek Chaudhary J.) 

Summary: Central Government by enacting The Transgender Persons (Protection of Rights) Act, 2019 is a socially beneficial legislation, and therefore this Act cannot be given an interpretation that would defeat the very purpose for which the Act was brought into force. Such an observation was made by the Hon’ble Allahabad High Court before Hon’ble Justice Vivek Chaudhary in the matter of Shivanya Pandey vs State Of U.P Thru Prin Secy Secondary Edu Lko &amp; Ors [MISC. SINGLE No. – 26611 of 2017] on 26.11.2021 
The facts of the case were that the petitioner with earlier name Vikas Pandey and gender as male appeared and passed High School on 10.06.2011 from the Children Academy Public School, Lucknow affiliated to the U.P. Board and Intermediate in the year 2013 from the Lucknow Public Collegiate, Lucknow affiliated to the CISE Board. Petitioner was suffering from gender dysphoria and, therefore, underwent gender reassignment surgery on 23.10.2017 from male to female at Fortis Hospital, New Delhi. On 27.05.2017, the petitioner got published a gazette notification in respect of the change of her name from ‘Vikas Pandey’ to ‘Shivanya Pandey’ and gender from ‘male’ to ‘female’. Petitioner also got an Aadhar card and pan card issued in her new name and gender i.e. Shivanya Pandey, female. Now the petitioner is required to change the same in her school certificates also. For the said purpose, the petitioner has made a representation to different on different dates but no resolution was passed. Thus, the instant petition is preferred.

The Hon’ble High Court observed that “ has to be interpreted in a manner that solemn purpose for which it is legislated is achieved. The purpose is to give recognition to transgender persons as they perceived themselves and, in case, they undergo a gender reassignment procedure, to provide them appropriate changed certificates and identity documents. Therefore, Section 7 of the Act cannot be given a meaning confined in the manner argued by learned Standing Counsel.”

Additionally, the Hon’ble High Court made an observation that Section 7 should be interpreted in a manner that the transgender persons who are issued a certificate under Section 6 or persons like petitioner who had undergone the gender re-assignment procedure prior to coming into force of the Act, both are held entitled to apply before the District Magistrate for issuance of a certificate indicating a change in gender. 

Finally, the Hon’ble High Court allowed the instant petition.
Click Here To Read The Judgment.
Judgment Reviewed by: Rohan Kumar Thakur
 The facts of the case were that the petitioner with earlier name Vikas Pandey and gender as male appeared and passed High School on 10.06.2011 from the Children Academy Public School, Lucknow affiliated to the U.P. Board and Intermediate in the year 2013 from the Lucknow Public Collegiate, Lucknow affiliated to the CISE Board. Petitioner was suffering from gender dysphoria and, therefore, underwent gender reassignment surgery on 23.10.2017 from male to female at Fortis Hospital, New Delhi. On 27.05.2017, the petitioner got published a gazette notification in respect of the change of her name from ‘Vikas Pandey’ to ‘Shivanya Pandey’ and gender from ‘male’ to ‘female’. Petitioner also got an Aadhar card and pan card issued in her new name and gender i.e. Shivanya Pandey, female. Now the petitioner is required to change the same in her school certificates also. For the said purpose, the petitioner has made a representation to different on different dates but no resolution was passed. Thus, the instant petition is preferred. 
The Hon’ble High Court observed that “ has to be interpreted in a manner that solemn purpose for which it is legislated is achieved. The purpose is to give recognition to transgender persons as they perceived themselves and, in case, they undergo a gender reassignment procedure, to provide them appropriate changed certificates and identity documents. Therefore, Section 7 of the Act cannot be given a meaning confined in the manner argued by learned Standing Counsel.”

Additionally, the Hon’ble High Court made an observation that Section 7 should be interpreted in a manner that the transgender persons who are issued a certificate under Section 6 or persons like petitioner who had undergone the gender re-assignment procedure prior to coming into force of the Act, both are held entitled to apply before the District Magistrate for issuance of a certificate indicating a change in gender. 

Finally, the Hon’ble High Court allowed the instant petition.
Click Here To Read The Judgment.
Judgment Reviewed by: Rohan Kumar Thakur
 The Hon’ble High Court observed that “ has to be interpreted in a manner that solemn purpose for which it is legislated is achieved. The purpose is to give recognition to transgender persons as they perceived themselves and, in case, they undergo a gender reassignment procedure, to provide them appropriate changed certificates and identity documents. Therefore, Section 7 of the Act cannot be given a meaning confined in the manner argued by learned Standing Counsel.” 
Additionally, the Hon’ble High Court made an observation that Section 7 should be interpreted in a manner that the transgender persons who are issued a certificate under Section 6 or persons like petitioner who had undergone the gender re-assignment procedure prior to coming into force of the Act, both are held entitled to apply before the District Magistrate for issuance of a certificate indicating a change in gender. 

Finally, the Hon’ble High Court allowed the instant petition.
Click Here To Read The Judgment.
Judgment Reviewed by: Rohan Kumar Thakur
 Additionally, the Hon’ble High Court made an observation that Section 7 should be interpreted in a manner that the transgender persons who are issued a certificate under Section 6 or persons like petitioner who had undergone the gender re-assignment procedure prior to coming into force of the Act, both are held entitled to apply before the District Magistrate for issuance of a certificate indicating a change in gender.  
Finally, the Hon’ble High Court allowed the instant petition.