JUDGMENT :

Ravindra Maithani, J.

The journey passing through the Criminal Tribes’ Act, 1871, to the decision in the case of National Legal Services Authority Vs. Union of India, (2014) 5 SCC 438 (hereinafter referred to as ‘NALSA’s case) appears to have yet not ended. The Criminal Tribes’ Act was enacted for the registration, surveillance and controls of certain tribes and eunuchs. The broader term ‘Transgender’ (TG) and their rights have been interpreted, widely discussed and upheld in the NALSA’s case. Those whose ‘brain sex’ was not in conformity with their ‘biological sex’ got an expression of freedom, autonomy, identity and dignity by the NALSA’s case. The NALSA’s case, in fact, legally as well as for all practical purposes ends all kind of humiliation, agony, anguish, trauma, distress, etc. that could have been faced by TGs. But, this Court is faced with a situation, where the petitioner, a transsexual woman, who has undergone gender reassignment surgery (GRS) claims that she is ‘she’, but State is not recognising it. The petitioner is still raising her voice against the might of the State on the strength of her rights upheld in the NALSA’s case and subsequent to it, in the cases of K.S. Puttaswamy and Another Vs. Union of India and Others, (2017) 10 SCC 1 and Navtej Singh Johar and Others, (2018) 10 SCC 1.

2. Before proceeding further, it would be apt to look at the facts at a glance. In the instant case, an FIR was filed by the petitioner, which was registered as FIR No. 311 of 2018 under Sections 377 and 385 IPC. There are allegations of rape also. The petitioner claims that she has identified herself as ‘she’. She has undergone GRS, therefore, she should be treated as a female. The instant petition has been filed for directing the State Government to treat and consider the petitioner as female, in accordance with law.

3. During the course of hearing, at one stage, a Joint Secretary to the Government of Uttarakhand filed an affidavit deposing, therein, that the petitioner has been diagnosed with ‘gender identity disorder’ and based on some medical evidence, investigation was carried out under Section 376 and 377 IPC, but at a later stage, the Investigating Officer of the case, filed a report in the Court and based on reading of the DNA of the petitioner, biologically declared that the petitioner is not ‘she’, but is ‘he’. Thereafter, the Secretary, Home, State of Uttarakhand has also filed another affidavit and in paragraph 8 of it, deposed as hereunder:-

“8. That it is submitted that the Government of Uttarakhand is committed to comply with the orders of Hon’ble Apex Court in letter and spirit as pronounced in order dated 15.04.2014 in National Legal Services Authority Vs. Union of India and others. In this context, Government of Uttarakhand is committed to protect the right of transgender person to decide their self-identified gender. As such, petitioner is well within her right to determine her gender.”

(Emphasis supplied)

4. After investigation, chargesheet under Section 377 IPC has been filed in the case.

5. Heard petitioner in person, learned Government Advocate and Additional Government Advocate for the State and perused the records.

6. The petitioner in person would argue that:-

(i) In view of the judgment in NALSA’s case, she has identified herself as ‘she’.

(ii) She had also undergone GRS and the Doctor conducting the surgery has given a certificate to her that she may be addressed as a “female”.

(iii) State in an affidavit, paragraph 8 as quoted hereinbefore, has also accepted that the petitioner has right of self-determination of her gender.

(iv) Based on the FIR filed by the petitioner, the chargesheet ought to have been filed under Section 376 IPC.

(v) Upon a query having been made by the petitioner, the Ministry of Social Justice and Empowerment has also confirmed that in a case like the instant one, the petitioner’s right to self identification gender is to be respected. Relevant portion of the letter, as placed by