Explaining the law relating to the protection, safeguard, development, and security of transgender individuals, the Orissa High Court (Cuttack Bench) reiterated that even in absence of any statutory regime in this country, a person has a Constitutional right to get the recognition as male or female after Sex Reassignment Surgery (SRS), which was not only his/her gender characteristics, but, has become his/her physical form as well.
The Court emphasised that legal recognition of gender identity is essential for transgender persons to enjoy their human and civil rights, such as the right to vote, own property, marry, obtain a passport, and access education and employment. The Court thus affirmed its legal duty to pass orders for the protection, safeguard, development, and security of transgender persons, including those like the petitioner who have undergone SRS.
Accordingly, the Court directed the Director of Estates, General Administration Department, Government of Odisha, to change the petitioner’s name in the Mutation Certificate from “Swagatika Das” to “Agastya Das” and his status from “granddaughter” to “grandson”.
A Single Judge Bench of Justice Ananda Chandra Behera observed that as per Section 7 of the Transgender Persons(Protection of Rights) Act, 2019 and as per Rule-6 of the Trans-gender Persons(Protection of Rights) Rules, 2020, the District Magistrate and other authorities under law have issued certificate, identity card, PAN Card, Passport and Addhar Card in favour of the petitioner, changing the name and gender of the petitioner from “Swagatika Das” to “Agastya Das” and his status from “Female” to “Male”.
The Bench therefore clarified that when, as per law, the petitioner has already been recognised as male, and his name is as “Agastya Das” in the official documents lawfully, then the Courts have their legal duties to pass orders for the protection, safeguard, development, and security of transgender/persons.
The Bench concluded that those who change their characteristics through SRS, like the petitioner, for their overall protection, safeguard, right to vote, right to own property, right to marry, right to claim a formal identity through a passport, Ration Card, driving license, right to education, Employment, Health and others, the same must be accorded to them.
Briefly, the Director of Estate, General Administration Department, Government of Odisha, had mutated a property in favour of the legal heirs of the deceased lessee, Santwana Das. The petitioner was listed at serial number 4 of this certificate as ‘Swagatika Das’, granddaughter. In the meantime, the petitioner was diagnosed with “Gender Dysphoric Syndrome” and subsequently underwent several surgical procedures, including “Laparoscopic Assisted Vaginal Hysterectomy with Bilateral Salphingo Oopherectomy” and “Bilateral Mastectomy and Nac Grafting”, which changed the petitioner’s gender from female to male.
Following the surgery, the petitioner applied to the District Magistrate, Cuttack, under The Transgender Persons (Protection of Rights) Act, 2019, and its corresponding Rules of 2020. The District Magistrate, after due enquiry, issued a certificate and an identity card recognising the petitioner’s gender as “male” and his name as “Agastya Das”. Based on the certificate from the District Magistrate, the petitioner successfully changed his name and gender on his PAN Card, Passport, and Aadhar Card. The petitioner also published a notification of his name change in the Tamil Nadu Gazette.
Later, the petitioner made a representation to the Director of Estates to update the Mutation Certificate, but the representation was not accepted. An attempt to send it via email failed as the recipient’s inbox was full. Having no other recourse, the petitioner approached the High Court.
Appearances:
Advocate Sagarika Sahoo, for the Petitioner
Advocate J. Sahoo, for the Respondent
