Every human being has right to choose his or her gender identity: Rajasthan High Court

The right of a human being to choose his/her sex or gender identity is integral to his or her personality and is one of the most basic aspects of self-determination, dignity and freedom, the Rajasthan High Court recently observed. .Single-judge Justice Anoop Kumar Dhand, therefore, ordered authorities to consider changing the details in the service record of a man who was assigned female gender at birth. "The right of a human being to choose his/her sex or gender identity is integral to his or her personality and is one of the most basic aspects of self determination, dignity and freedom," the judge observed in the order passed on May 25. The petitioner was assigned female gender at birth. The petitioner secured a job in 2013 under the General Female Category but was diagnosed with Gender Identity Disorder (GID) and subsequently underwent a gender reassignment surgery (GRS) and became a male. He then married a woman and became a father of two children. .The petitioner submitted that unless his name and gender is changed in his service records, it would be difficult for him and his family to get the benefits of his service and therefore, the authorities should make the requisite changes.Opposing the submissions, the State argued that the petitioner got appointment as a female candidate and the name and gender was recorded on the basis of the identity furnished the. For change in sex based on gender identity, a declaration to that effect should be obtained from the Civil Court, it was submitted..After considering the contentions, the Court underscored that gender identity is one of the most basic and fundamental aspects of one's life."Gender identity is the most fundamental aspect of life which refers to a person’s intrinsic value of being a male or female. There are times when human body is not formed with all of its proper attributes, therefore genital anatomy problems may arise and many of them do not choose to undergo GRS to change their gender. Everyone is entitled to enjoy all human rights which are a basic necessity to survive, without discrimination on the basis of sexual orientation or gender identity," the single-judge underlined. He also referred to Rigveda, which defines men as "Purush" and women as "Prakriti.""And the third gender that is the ‘Tritiya Prakriti’. In the recent times, the modern Indian society have considered them as the third gender otherwise there was no such identity given to them legally. Still, all is not well, and the third gender people are struggling to constitute a part of the civil society," the bench emphasised. .Right to equality is guaranteed by the Constitution of India which is the basic Fundamental Right which all Indians inherit since they become a part of our mother’s (India's) womb, the Court said."Everybody on this planet has a right to be treated with respect and dignity, be it a Male or a Female or any other gender. Till the past, we used to consider Male and Female as two biological sex but the developed science has proved that there are more genders than just cisgender," the bench underlined. .The Court referred to the provisions of the Transgender Persons (Protection of Rights) Act of 2019, enacted to provide equality and respect to the transgender persons. "This Act is a social beneficial legislation and therefore, it cannot be given an interpretation which would defeat the very purpose for which the same is brought in force. One of the provisions is to provide them appropriate changed certificates and identity documents, if they undergo a GRS," the judgment said. It further noted that the Act allows persons like the petitioner, who had undergone the GRS prior to the Act of 2019, 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 in their birth certificate and other official documents relating to their identity. Denying such a right to person who had already undergone the GRS, would frustrate the very purpose of the Act, as large number of persons would be left out discriminated in the society," the Court held. The object of this enactment is to give effect to the rights guaranteed to such persons under Articles 14, 15, 19 and 21 of the Constitution of India, the Court said. It, therefore, ordered the petitioner to file an application before the District Magistrate seeking change in his gender details and then make a fresh application before the authorities to change his service records..The matter was adjourned till September 4 with a directive to the authorities to file a compliance report. .Advocates Arvind Sharma and Mamta Agarwal appeared for the Petitioners. Additional Government Counsel S Zakawat Ali represented the State. .[Read Judgment]