The Allahabad High Court has directed the Uttar Pradesh Director General of Police (DGP) to dispose of an application filed by a female constable seeking permission to undergo Sex Reassignment Surgery.
A Single Bench of Justice Ajit Kumar passed this order while hearing a petition filed by Neha Singh.
The petitioner who is presently working as Woman Constable in UP Police, as per assessment made by her of characteristics of her own personality, finds in herself all the traits of a male personality and has always an urge to develop nearness with females as opposed to her physical characteristics of a male. She claims to have a feeling of a male in herself trapped in a female body.
Accordingly, she claims to be suffering from Gender Dysphoria. This has been diagnosed also by an authorized medical practitioner who runs a mind clinic at New Delhi after conducting a psychological test of her. The petitioner is admittedly an unmarried woman. In the circumstances, she is desirous of undergoing Sex Reassignment Surgery (SRS) to get herself ultimately identified and personalized as a male with true male physical character.
The Court noted that, she traces out this fundamental right of her from the judgment of the Supreme Court in the case of National Legal Services Authority v Union of India and Others, in which the Court dealt with the issue of Transgender’s rights and right of third gender bringing under its umbrella all such persons in true perspective of the provisions contained under Chapter III of the Constitution of India relating to fundamental rights.
The Court held that gender identity to be integral to the dignity of an individual and is at the core of personal “autonomy” and “self determination” the Court thus used word and expression “third gender” over and above binary genders under our constitution and the laws.
Referring to Article 14,15,16,19 and 21 as contained in part III of the Constitution, the Court held that the provisions are also applicable to transgenders as well. The use of word/ expression ‘person’, ‘citizen’, ‘sex’ under those articles are “gender neutral” and so evidently refer to human beings.
The Court thus held that gender identity is an integral part of sex and no citizen can be discriminated against on the ground of gender identity, including those who identify as third gender. The Court finally concluded that any discrimination on the ground of sex or gender identity in terms of ‘ exclusion’, ‘restriction’ or preference’ or any other act in society that has the effect of giving a treatment that renders citizen who are third gender as discriminated against, deserve protection and emphasized for safeguarding their constitutional rights.
Elaborating further the rights of citizen to have a gender of his or her choice the Court addressed the core issue when for any genital defect it may be difficult for such a person innate perception may be that of a female and so the actions and behavior too even though a person was born as a male and could even be vice versa.
The Court discussed above on the principle of ‘right of choice’ as a germane to the fundamental rights of liberty and to live with dignity in his/ her own dignified way as a human.
The Court stressed that respect for human rights is the root for human development and realisation of the full potential of each individual. So in a country or nation where basic human rights value, it must concern every aspect of it.
For an individual, his dignity remains intact if his/ her values of life are respected. For a person naturally including a third gender, what matters is that society has a space for him to have a dignified living.
A person’s anatomical structure is coming in that person’s way to live a happy and dignified life, State is held to be duty bound to give such a person adequate opportunity to have a personality of choice, a right well guaranteed under the constitution.
It is submitted by the counsel for the petitioner that assailing the right to get Sex Reassignment Surgery (SRS) done, the petitioner has applied for necessary sanction vide application dated 11th March, 2023 made to the Director General of Police, UP Lucknow but no decision has been taken in that regard till date.
Counsel for the petitioner submitted that in view of direction issued by the Supreme Court respondents are not justified in withholding the application of the petitioner because even in absence of any statutory provisions, authorities are bound to obey the command issued by the Supreme Court.
He further submitted that in the above regard, the Central Government has also framed an Act, namely, Transgender Persons (Protection of Rights) Act, 2019.
“One should not have any doubt that if a person suffers from gender dysphoria and except for physical structure, her feeling and also the traits of opposite sex so much so that such a person takes a complete misalignment of her personality with physical body, such a person does possess a constitutionally recognized right to get his/her gender changed though surgical intervention. If we, in modern society do not acknowledge this vested right in a person, we would be only encouraging gender identity disorder syndrome. At times such a problem may be fatal as such a person may suffer from disorder, anxiety, depression, negative self image, dislike of one’s sexual anatomy. If psychological interventions to alleviate such distress as above fail, surgical intervention should become a must and should be encouraged.
In view of above, therefore, I do not find any justification for the Director General of Police to withhold the application of the petitioner”, the Court observed.
“Let an appropriate affidavit be filed on behalf of the State Government as to whether it has also framed any such Act in compliance of directions issued by the Supreme Court and if that be so, the same may also be brought on record. However, it is provided at the same time that any such Act or Rule if has not been famed till date, the State Government will ensure to frame such Act at par with the Central legislation that has been referred to hereinabove and file a comprehensive affidavit in that regard as to what steps have been taken so far, by the next date fixed.
In the meanwhile, Director General of Police, namely, second respondent is directed to dispose of pending application of the petitioner strictly in the light of the judgments referred to hereinabove and file affidavit of compliance annexing therewith copy of the order.
It will remain open for the authority to ask for such material and documents so as to form a view that such an application really deserves consideration, must be based upon cogent material”, the order reads.
The Court has fixed the next hearing of the petition on 21st September, 2023.