A division bench of the Bombay High Court comprising Justice GS Patel and Justice Neela Gokhale recently directed the Maharashtra government to ask all educational institutions to enable a retrospective change in gender for transgender people.
The court observed that such a denial was violative of Article 21 of the Constitution.
“To our mind, it is in and of itself nothing short of a denial of the Petitioner’s fundamental rights under Article 21. What has to be acknowledged is a movement forward in point of time and in life, that is to say, what is required to be provided to the Petitioner from a particular point onwards without having to go back in time,” the bench noted.
The court was hearing a plea wherein the petitioner had obtained an MA in Development Studies from the Tata Institute of Social Sciences. The name on the certificate described the student to be female. In 2015, the petitioner adopted another name, self-identifying as transgender. The petitioner got the name notified in the gazette notification.
It was contended that the petitioner is entitled to a re-issuance of these documents in the current name and with the current gender. A representation was made before the institute but there was no response. The petitioner contended there was no process of change in name.
The court in its order recorded that it was a denial of a human being’s self-identity and self-identification.
“This is a case of a denial of a human being’s self-identity and self-identification. That cannot be done and cannot be permitted. Nor can an institute be permitted to force upon the Petitioner a name, identity, or a gender that the Petitioner has chosen to reject in preference to some other.”
The court was informed that the petitioner needs to make changes to all other documents. To this, the HC said, “That is not even remotely tenable. It would be a manifest injustice and a complete denial of fundamental rights including the right to privacy and the right to dignity, covered by Article 21 of the Constitution of India, to refuse the Petitioner relief or to accept what the 1st Respondent says that all previous records must now be updated.”
The high court went on to direct the state government to ask all educational institutions in Maharashtra to make available online forms for such changes.
“There is absolutely no reason why the online forms on the website of the 1st Respondent and indeed every other educational institution that is or are subject to our writ jurisdiction should not have a form for precisely such changes, i.e., noting a change in name and a change in gender. It is for the 1st Respondent to make this change on the 1st Respondent’s website and for the 2nd Respondent State Government to issue the necessary instructions to all similar educational institutions across Maharashtra,” the bench noted.
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