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SYNOPSIS
That present case is in regards to adolescent namely Anurag now known as Anubha of approximately 14 years of age having feminine qualities and who found herself trapped in the body of male, however her parents completely supports her and after consulting with medical professional they have transformed their child into female as according to the wish the child, however the parents and the petitioner faces various challenges in regards to the changing the name in the records and other various challenges therefore infringing the fundamental rights of the petitioner enshrined by the Constitution of India. Hence, the present petition.
OPENING ARGUMENT
It is well said by someone that:- “Nothing is harsher than pretending to be the person you are not” Similarly the great German namely Johann Wolfgang von Goethe, had said, “I am what I am, so take me as I am” That according to the Transgender Persons (Protection of Rights) Act, 2019 the definition words transgender has been described as follows:- " 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-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, gender queer and person having such socio-cultural identities as kinner, hijra, aravani and jogta on the other hand " Person with Intersex Variations " means a person who at birth shows variation in his or her primary sexual characteristics, external genitalia, chromosomes or hormones from normative standard of male or female body. That since we have understood the definition of the terms, let’s go back in the past and discuss some Indian mythology and turns some pages of the history.
INDIAN MYTHOLOGY & WORLD HISTORY
“Indian mythology has in it, many references to altered sexual states. The name Ardhanarishwara refers to God, who is half man and half woman, an androgynous deity. In various versions of Ramayana, there is reference to King Ila, who spent half his life as man and half as woman. In Mahabharata, Arjuna, one of the fiercest warriors of his time, spent a year of his life in intersexed condition.” In 1932, ‘ Man into Woman ’, the story of Lili Elbe's life, male to female transition and sex reassignment surgery was published. She was born as Ejnar Mogens Wegener in Denmark. She underwent five operations including ovarian and uterine transplants and most likely, procedures with no scientific backing.
In the year 1945, Sir Harold Delf Gillies widely regarded as the Father of Modern Plastic Surgery, together with Ralph Millard carried out the first scientifically performed sex change procedure of a woman Laura Dillon to man. He was renamed Michael Dillon. In 1967, a change in British Laws allowed Charing Cross Hospital to begin performing the sex change surgery. In 1972, American Medical Association sanctioned sex change surgery as the treatment for transsexualism. Japan allowed first legal sex change operation from female to male in 1998.
INTERNATIONAL COURTS AND INTERNATIONAL
PROSPECTIVE:-
Nelson Mandela once said that:- “To deny people their human rights is to challenge their very humanity” (i)In the International Human Rights Law, many countries have enacted laws for recognizing rights of transsexual persons, who have undergone either partial/complete SRS, including United Kingdom, Netherlands, Germany, Australia, Canada, Argentina, etc. United Kingdom has passed the General Recommendation Act, 2004. The Act is all encompassing as not only does it provide legal recognition to the acquired gender of a person, but it also lays down provisions highlighting the consequences of the newly acquired gender status on their legal rights and entitlements in various aspects such as marriage, parentage, succession, social security and pensions etc. (ii) That in the year 2003 in Britain a Bill was introduced whereby transsexuals were to be given the legal right to marry and have the gender changed on their birth certificate. Bill will also introduce laws which mean that employees cannot demand to know a person’s sexual history and that anyone has gone through a sex change should be treated as the sex they are after operation. It will also say that insurance companies must treat transsexuals as the sex of their choice and that the Government must allow men who have changed their sex to female to State pension at the age of 60. (iii)Brazil lowered the age at which young people can access gender reassignment surgery from 21 to 18 and dropped the age requirement for hormone therapy from 18 to 16, although those under 18 must have the consent of a parent or guardian. (iv) In Canada, medical regulations state puberty blockers may be used for girls as young as 10-and-a-half and boys aged 11-and-a-half. Hormones may be administered to teenagers from the age 16. (v) That in the case titled as “ AB v CD, 2019 BCCA 297 , the B.C. Court of Appeal found that a 14-year-old could give valid consent to hormone treatment further the BCCA in AB v CD confirmed that a 14-year old has the maturity to affirm their gender identity and choose hormone therapy.
(b) THE RIGHTS TO EQUALITY AND NONDISCRIMINATION:- Everyone is entitled to enjoy all human rights without discrimination on the basis of sexual orientation or gender identity. Everyone is entitled to equality before the law and the equal protection of the law without any such discrimination whether or not the enjoyment of another human right is also affected. The law shall prohibit any such discrimination and guarantee to all persons equal and effective protection against any such discrimination. Discrimination on the basis of sexual orientation or gender identity includes any distinction, exclusion, restriction or preference based on sexual orientation or gender identity which has the purpose or effect of nullifying or impairing equality before the law or the equal protection of the law, or the recognition, enjoyment or exercise, on an equal basis, of all human rights and fundamental freedoms. Discrimination based on sexual orientation or gender identity may be, and commonly is, compounded by discrimination on other grounds including gender, race, age, religion, disability, health and economic status. (xiii) In “Law vs Canada (Minister of Employment and Immigration)” the Supreme Court of Canada has made the following observations:- "Human dignity means that an individual or group feels self-respect and self- worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society." (xiv) United Nations has been instrumental in advocating the protection and promotion of rights of sexual minorities, including transgender persons. Article 6 of the Universal Declaration of Human Rights, 1948 and Article 16 of the International Covenant on Civil and Political Rights, 1966 (ICCPR) recognize that every human being has the inherent right to live and this right shall be protected by law and that no one shall be arbitrarily denied of that right. Everyone shall have a right to recognition, everywhere as a person before the law. (xv) The Supreme Court of Pakistan in “ Dr. Mohammad Aslam Khaki & Anr. V. Senior Superintendent of Police (Operation) Rawalpindi & Ors.” (Constitution Petition No.43 of 2009) decided on 22nd March, 2011, had occasion to consider the rights of eunuchs(a man who has had his testicles removed) and held as follows:- Needless to observe that eunuchs in their rights are citizens of this country and subject to the Constitution of the Islamic Republic of Pakistan, 1973, their rights, obligations including right to life and dignity are equally protected. Thus no discrimination, for any reason, is possible against them as far as their rights and obligations are concerned. The Government functionaries both at federal and provincial levels are bound to provide them protection of life and property and secure their dignity as well, as is done in case of other citizens. (xvi) International human rights law guarantees freedom from discrimination in the enjoyment of human rights for all people, including LGBTI individuals. For example, the International Covenant on Economic, Social and Cultural Rights, Article 2(2) states: The States Parties to the present Covenant undertake to guarantee that the rights
enunciated in the present Covenant will be exercised without discrimination of any kind as to race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
CONSEQUENCES IF NOT IDENTIFIED AND ACKNOWLEDGED
AT EARLY STAGE:-
Transgender youth are the children or adolescents who do not identify with the sex they were assigned at birth. Because transgender youth are usually dependent on their parents for care, shelter, financial support, and other needs, transgender youth face different challenges compared to adults. Professional medical associations state that appropriate care may include supportive mental health care, social transition, and puberty blockers, which delay puberty and the development of secondary sex characteristics to give children time to make decisions about more permanent courses of action. Most children with gender dysphoria end up identifying with their biological sex after reaching puberty, though if gender dysphoria does continue into adolescence it is far more likely to persist into adulthood. Gender dysphoria or distress caused by not having your body match your gender identity is central to the struggles faced by the transgender community. TENDENCIES OF SUICIDE INCREASES:- Several studies states that estimate life-threatening behavior for gay, lesbian, and bisexual youth have been done, few have been done regarding transgender youth, and thus comparable estimates do not exist. The few studies that have been done, however, have all concluded that transgender youth are at increased risk even over their gay, lesbian, and bisexual counterparts. A 2007 study of transgender youth found that, of the youth interviewed, about half had seriously contemplated ending their own lives. Of those who had thought about suicide, about half had actually made an attempt. Overall, 18% of all interviewed transgender teenagers reported an attempted suicide that was linked to their transgender identity. VICTIM OF BULLYING :- School settings can be some of the toughest for transgender youth. Several problems may be faced at schools, including verbal and physical harassment and assault, sexual harassment, social exclusion and isolation, and other interpersonal problems with peers. Transgender students were much more likely than their peers to report harassment, assault, and feeling unsafe in school settings. These experiences vary between individuals and schools attended. Larger schools tend to have safer climates for transgender students, as do schools with more low income and religious and ethnic minorities. PHYSICAL, SEXUAL, AND VERBAL ABUSE :- Transgender youth are at an increased risk for physical, verbal, and sexual abuse. Children who experience physical abuse, verbal abuse, and sexual abuse are also more likely to identify as being gender dysphoric. This evidence is not clear as to the relationship between abuse and sexual identity in regards to which is the cause and which is the effect.
caste, sex, place of birth or any of them.” Article 15 prohibits the State from discriminating on grounds only of sex. (v) In the evolution of its jurisprudence on the constitutional right to life under Article 21, this Court has consistently held that the right to life is meaningless unless accompanied by the guarantee of certain concomitant rights including, but not limited to, the right to health. The right to health is understood to be indispensable to a life of dignity and well-being, and includes, for instance, the right to emergency medical care and the right to the maintenance and improvement of public health (vi) Article 21 provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Such procedure established by law must be fair, just and reasonable. The right to life and liberty affords protection to every citizen or non- citizen, irrespective of their identity or orientation, without discrimination. (vii) RIGHT TO LIVE WITH DIGNITY-We think that the right to life includes the right to live with human dignity and all that goes along with it, namely the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human being it must in any view of the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human-self. Every act which offends against or impairs human dignity would constitute deprivation pro tanto of this right to live and it would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights.” (viii) RIGHT TO HEALTH:- The right to health, and access to healthcare are also crucial facets of the right to life guaranteed under Article 21 of the Constitution.
PRESENT CASE IN THE LIGHT OF STUDY DISCUSSED ABOVE
“The natural identity of an individual should be treated to be absolutely essential to his being. What nature gives is natural. That is called nature within” (a) That in the present case the petitioner (a minor) who is represented through her natural guardians found herself trapped in the body of a male. (b) That the petitioner requested her parents that she feels isolated and feels depressed on account of her social ostracizing by all acquaintances, especially neighboring boys of his age and also by her classmates on the ground of her behavior which is inclined towards feminine rather than masculine. (c)That the parents of the petitioner accepted her the way she was and on the ground of the request and in order to make their only child happy they accepted the request of the petitioner to get medical transformation of the body from male to female.
(d) That the parents of the petitioner consulted to the medical professionals in regards to the medical transformation in order to accomplish the desire of the petitioner wherein which the medical professional advised the parents of the petitioner that she is in the capacity for undergoing the medical surgery for the purpose. (e) That since the petitioner is an adolescent, therefore in the present petition the petitioner has been represented by her natural and legal guardian. That according to section 4 of the Hindu Minority and Guardianship Act, 1956 which as under :- (a) "minor" means a person who has not completed the age of eighteen years; (b) "guardian" means a person having the care of the person of a minor or of his property or of both his person and property, and includes-- (i) a natural guardian, (ii) a guardian appointed by the will of the minors father or mother, (iii) a guardian appointed or declared by a court, and (iv) a person empowered to act as such by or under any enactment relating to any Court of wards. (c) "natural guardian" means any of the guardians mentioned in section 6. Whereas section 6 states as under:- “The natural guardians of a Hindu minor; in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are-- (a) in the case of a boy or an unmarried girl--the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother; (b) in the case of an illegitimate boy or an illegitimate unmarried girl--the mother, and after her, the father; (c) in the case of a married girl the husband:” Therefore a minor is considered to be a person who is physically and intellectually imperfect and immature and hence needs someone's protection. In the modern law of most countries the childhood is accorded protection in multifarious ways. Guardian is "a person having the care of the person of the minor or of his property or both person and property." It may be emphasized that in the modern law guardians exist essentially for the protection and care of the child and to look after its welfare. That the section 24 of the Guardianship Act 1890 states that :- “24.Duties of guardian of the person.- A guardian of the person of a ward is charged with the custody of the ward and must look to his support, health and education, and such other matters as the law to which the ward is subject requires” Thus the parents of the petitioner are in the capacity to take the decision on behalf of the petitioner to accomplish the desire of the petitioner since the petitioner was facing mental and physical trauma and the petitioner requested for the same. (f) That in the case of AB v CD, 2019 BCCA 297 (supra) it has already been stated by the B.C. Court of Appeal that a 14-year-old could give valid consent to hormone treatment further the BCCA in AB v CD confirmed that a 14-year old has the maturity to affirm their gender identity and choose hormone therapy.
(c) the denial of, or termination from, employment or occupation; (d) the denial or discontinuation of, or unfair treatment in, healthcare services; (e) the 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 the public; (f) the denial or discontinuation of, or unfair treatment with regard to the right of movement; (g) the denial or discontinuation of, or unfair treatment with regard to the right to reside, purchase, rent, or otherwise occupy any property; (h) the denial or discontinuation of, or unfair treatment in, the opportunity to stand for or hold public or private office; and (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
- BECAUSE gender identity is one of the most fundamental aspects of life which refers to a person‘s intrinsic sense of being male, female or transgender or transsexual person. Gender identity refers to each person‘s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body which may involve a freely chosen, modification of bodily appearance or functions by medical, surgical or other means and other expressions of gender, including dress, speech and mannerisms. Gender identity, therefore, refers to an individual‘s self-identification as a man, woman, transgender or other identified category. 10.BECAUSE the actions of the respondents are against the fundamental rights of the petitioner enshrined by the Constitution of Indian and also against the provisions of the Transgender Persons (Protection of Rights) Act, 2019 Act. 11.BECAUSE section 13 of the of Transgender Persons (Protection of Rights) Act, 2019 states that:- “Every educational institution funded or recognized by the appropriate Government shall provide inclusive education and opportunities for sports, recreation and leisure activities to transgender persons without discrimination on an equal basis with others” Therefore the petitioner cannot be discriminated on the ground of her gender. 12.BECAUSE the Hon’ble Supreme Court in the landmark judgment in the case titled as “ NAVTEJ SINGH JOHAR & ORS Vs UNION OF INDIA THR. SECRETARY MINISTRY OF LAW AND JUSTICE ” decided on 06.09.2018 held that:- “The right to privacy is intrinsic to liberty, central to human dignity and the core of autonomy. These values are integral to the right to life under Article 21 of the Constitution. A meaningful life is a life of freedom and selfrespect and nurtured in the ability to decide the course of living” [ 13.BECAUSE the Hon’ble Supreme Court in the case titled as “ SAURABH CHAUDRI AND OTHERS V. UNION OF INDIA AND OTHERS ” decided on 04.11.2003 stated that:- " Our Constitution is organic in nature, being a living organ, it is ongoing and with the passage of time, law must change. Horizons of constitutional law are expanding ." The court also held that:- “The rights that are guaranteed as Fundamental Rights under our Constitution are the dynamic and timeless rights of 'liberty' and 'equality' and it would be against the principles of our Constitution to give them a static interpretation without recognizing their transformative and evolving nature” The Hon’ble court further held that:-
“The LGBT community possess the same human, fundamental and constitutional rights as other citizens do since these rights inhere in individuals as natural and human rights. We must remember that equality is the edifice on which the entire non-discrimination jurisprudence rests. Respect for individual choice is the very essence of liberty under law” 14.BECAUSE the sexual orientation and privacy lie at the core of the fundamental rights which are guaranteed under Articles 14, 19 and 21 of the Constitution and in the light of the decision in “ K.S. PUTTASWAMY & ANR. V. UNION OF INDIA & ORS ” of Supreme Court of India. 15.BECAUSE the Hon’ble Supreme Court in the case titled as “ STATE OF KERALA AND ANOTHER V. N.M. THOMAS AND OTHERS ” decided on 19.09. observed that the Indian Constitution is a great social document, almost revolutionary in its aim of transforming a medieval, hierarchical society into a modern, egalitarian democracy and its provisions can be comprehended only by a spacious, social science approach, not by pedantic, traditional legalism. 16.BECAUSE the Hon’ble Supreme Court in the case titled as “ COMMON CAUSE V. UNION OF INDIA ” decided on 09.03.2018 stated as under:- “There is a related, but interesting, aspect of this dignity which needs to be emphasized. Right to health is a part of Article 21 of the Constitution.” 17.BECAUSE the Hon’ble Supreme Court in the landmark judgment in case bearing no Writ Petition (Civil) No.400 of 2012 titled as “ NATIONAL LEGAL SER.AUTH VS UNION OF INDIA & ORS” decided on 15 April, 2014 wherein the applicant born as a male and while growing up as a child, felt different from the boys of her age and was feminine in her ways. On account of her femininity, from an early age, she faced repeated sexual harassment, molestation and sexual abuse, both within and outside the family. Due to her being different, she was isolated and had no one to talk to or express her feelings while she was coming to terms with her identity and stated as under:- “Article 14 of the Constitution of India states that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Equality includes the full and equal enjoyment of all rights and freedom. Right to equality has been declared as the basic feature of the Constitution and treatment of equals as unequals or unequals as equals will be violative of the basic structure of the Constitution. Article 14 of the Constitution also ensures equal protection and hence a positive obligation on the State to ensure equal protection of laws by bringing in necessary social and economic changes, so that everyone including TGs may enjoy equal protection of laws and nobody is denied such protection. Article 14 does not restrict the word person and its application only to male or female. Hijras/transgender persons who are neither male/female fall within the expression person and, hence, entitled to legal protection of laws in all spheres of State activity, including employment, healthcare, education as well as equal civil and citizenship rights, as enjoyed by any other citizen of this country. Further the Hon’ble court further observed and stated that :- “The way they behave and acts differs from the normative gender role of a men and women. For them, furthering life is far more difficult since such people are neither categorized as men nor women and this deviation is unacceptable to societies vast majority. Endeavour to live a life with dignity is even worse. Obviously transvestites, the hijra beg from merchants who quickly, under threat of obscene abuse, respond to the silent demands of such detested individuals. On occasion, especially festival days, they press their claims with boisterous and ribald singing and dancing” 18.BECAUSE the Hon’ble Supreme Court in the landmark judgment in the case titled as “ NATIONAL LEGAL SER.AUTH VS UNION OF INDIA & ORS ” (Supra) further held as under said:-
21.BECAUSE the Article 21 requires that for depriving a person of his right to life and personal liberty, there has to be a law and the said law must prescribe a fair procedure therefore the actions of the respondent has deprived the petitioner from enjoying her rights. 22.BECAUSE Our Constitution fosters and strengthens the spirit of equality and envisions a society where every person enjoys equal rights which enable him/her to grow and realize his/her potential as an individual. 23.BECAUSE Our Constitution was visualized with the aim of securing to the citizens of our country inalienable rights which were essential for fostering a spirit of growth and development and at the same time ensuring that the three organs of the State working under the aegis of the Constitution and deriving their authority from the supreme document, that is, the Constitution, practice constitutional morality. 24.BECAUSE no person cannot discriminate transgenders on the ground of gender, thus violating the Articles 14 to 16 and 21 of the Constitution of India. 25.BECAUSE the LGBT community possess the same human, fundamental and constitutional rights as other citizens do since these rights in here in individuals as natural and human rights. We must remember that equality is the edifice on which the entire non-discrimination jurisprudence rests. Respect for individual choice is the very essence of liberty under law. 26.BECAUSE there is no reason why a transgender must be denied of basic human rights which includes right to life and liberty with dignity, right to privacy and freedom of expression, right to education and empowerment, right against violence, right against exploitation and right against discrimination. The Constitution has fulfilled its duty of providing rights to transgender. 27.BECAUSE Right of a person to have the gender of his/her choice. When a child is born, at the time of birth itself, sex is assigned to him/her. A child would be treated with that sex thereafter, i.e. either a male or a female.
- BECAUSE the actions of the respondents arbitrary and against the fundamental rights and also against the Yogyakarta Principles which were formed as a document about human rights in the areas of sexual orientation and gender identity, published as the outcome of an international meeting of human rights groups in Yogyakarta, Indonesia, in November 2006 some of the relevant extracts of it are as follows:- “The right to the universal enjoyment of human rights:-All human beings are born free and equal in dignity and rights. Human beings of all sexual orientations and gender identities are entitled to the full enjoyment of all human rights” “The rights to equality and nondiscrimination.—Everyone is entitled to enjoy all human rights without discrimination on the basis of sexual orientation or gender identity. Everyone is entitled to equality before the law and the equal protection of the law without any such discrimination whether or not the enjoyment of another human right is also affected” 29.BECAUSE the parents of the petitioner don’t want their child to suffer from Gender Dysphoria which is distress caused by not having the body matching the gender identity since the petitioner always felt that
she was trapped in the someone else body and this feeling was giving her immense mental stress and trauma further increasing the suicidal tendencies and other major health issues. And the Hon’ble Supreme Court in regards to the health of person in the case titled as “ C.E.S.C. LIMITED V. SUBHASH CHANDRA BOSE ” decided on 15.11.1991 held as under:- “Health is thus a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity” 30.BECAUSE the World Health Organization (“WHO”) defined the term ‘health’ broadly to mean “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity” 31.BECAUSE the Article 2 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) requires states to ensure that: “The rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” 32.BECAUSE in the Article 26 of the International Covenant on Civil and Political Rights (ICCPR) in regards to prohibition against discrimination states that “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 33.BECAUSE Articles 15 and 16 prohibit discrimination against any citizen on certain enumerated grounds, including the ground of sex. In fact, both the Articles prohibit all forms of gender bias and gender based discrimination. 34.BECAUSE no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State. Article 16 not only prohibits discrimination on the ground of sex in public employment, but also imposes a duty on the State to ensure that all citizens are treated equally in matters relating to employment and appointment by the State. 35.BECAUSE Article 19(1) of the Constitution guarantees certain fundamental rights, subject to the power of the State to impose restrictions from exercise of those rights. The rights conferred by Article 19 are not available to any person who is not a citizen of India. Article 19(1) guarantees those great basic rights which are recognized and guaranteed as the natural rights inherent in the status of the citizen of a free country. Article 19(1) (a) of the Constitution states that all citizens shall have the right to freedom of speech and expression, which includes ones right to expression of his self-identified gender. Self-identified gender can be expressed through dress, words, action or behavior or any other form. No restriction can be placed on ones personal appearance or choice of dressing, subject to the restrictions contained in Article 19(2) of the Constitution. 36.BECAUSE the rights that are guaranteed as Fundamental Rights under our Constitution are the dynamic and timeless rights of 'liberty' and
