A medical certificate is required if a transgender person changes their sex from male to female or female to male and wants a passport issued under the "male" or "female" category.
The Delhi High Court ruled on Monday that the Passport Rules of 1980, which require transgender people to provide proofs of gender reassignment surgery in order to get a passport with their declared sex, are prima facie in violation of Article 21.
[Union of India vs. Lasya Kahli]
Acting Chief Justice Vipin Sanghi and Justice Navin Chawla of the Division Bench noted that the rule appears to be in violation of the Supreme Court's decision in the NALSA case, and requested the Central government to consider changing it.
"Your rule has to be changed. You must specify the transgender person's orientation. You defer to the individual's choice of orientation. Who are you to tell someone to get a surgical certificate? Isn't this an infringement of Article 21? Please urge your client to be flexible with this rule when you return in a week"Sanghi, the acting Chief Justice, stated.
The High Court ordered the Central government's lawyers to submit instructions on the issue within a week and rescheduled the hearing for April 22, stating that it would not be postponed or adjourned.
The Court was hearing a case brought by a woman named Lasya Kahli, who was contesting the Passport Rules of 1980 to the degree that they need a sex change certificate from a hospital for a transgender person to have their passport reissued with their declared sex ("Female" or "Male").
The Court was advised that if a person wants a passport issued under the "Transgender" category after changing their sex from male to female or female to male, simply a declaration is required. A medical certificate is required if they want the passport to be issued as "Male" or "Female."
After reviewing the NALSA decision, the Bench suggested that the government alter the rule and that a person's identity should be left to them.
"It appears that, prima facie, the rules requiring transgender persons to submit a certificate of sex reassignment surgery (SRS)/gender reassignment surgery (GRS) is in violation of the aforesaid Supreme Court judgement," the Bench wrote.
Kahli stated in her petition that she changed her name and gender from male to female in December 2019.
Following that, the petitioner was able to have her Aadhar Card, PAN Card, and Voter ID reissued with the necessary adjustments to her name and gender.
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, she was urged to bring a "sex change certificate in hand by a surgeon" to the Regional Passport Office in question.
The petitioner was notified that her previous passport had been revoked and her new passport had been placed on hold due to a lack of the certificate.
The petitioner was concerned that without the passport, she would not be able to travel to Bangkok, Thailand for gender reassignment surgery.
The obligation to present a certificate from a hospital stating that one "underwent sex change operation successfully" is arbitrary, unconstitutional, and in violation of Article 21 of the Constitution, according to the petitioner.
The petitioner claims that requesting any papers related to her gender reassignment operation would be a violation of the Transgender Persons (Protection of Rights) Rules, 2020, and the Transgender Persons (Protection of Rights) Act, 2019.
In addition, the petitioner argued that requiring sex reassignment surgery for an individual to identify or alter their sex/gender is superfluous and violates the individual's right to choose whether or not to undertake a surgical operation to reflect the transition.
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