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2018 Supreme(Online)(KER) 26221
HIGH COURT OF KERALA
ANU SIVARAMAN, J
QUEERALA – Appellant
Versus
STATE OF KERALA – Respondent
WP(C)/20056/2018
SMT.K.K.PREETHA SMT.FERHA AZEEZ SRI.R.K.PRASANTH
The judgment reinforces that policies regarding transgender recognition must comply with the Supreme Court's authoritative interpretation of gender identity rights.
Headnote:
Transgender - Identification - Kerala State Policy for Transgenders 2015 - NALSA Case - The court emphasized the importance of following the Supreme Court's guidelines on gender recognition and issued directions to ensure compliance with the policy and facilitate recognition of transgender identity.
Fact of the Case:
The petitioners filed a writ petition seeking to challenge a government order restricting transgender identification to only those who had undergone sex reassignment surgery, arguing it violated the Supreme Court's ruling in NALSA Vs. Union of India.
Finding of the Court:
The court found that the government's order contradicted the principles established in the NALSA judgment, directing the appropriate government authorities to consider the petitioners' representation in line with the Supreme Court's ruling.
Issues: Whether the government order limiting transgender identification to individuals who have undergone surgery violates the guidelines established by the Supreme Court regarding gender recognition.
Ratio Decidendi: The court held that the government must align its actions with the Supreme Court's established principles on transgender recognition, ensuring all affected individuals receive notice and an opportunity to be heard.
Final Decision: The writ petition is ordered accordingly with directions to consider the representation timely.
J U D G M E N T
This writ petition is filed with the following prayers:
"i) To issue a writ of certiorari or other appropriate writ or order quashing Ext. P1 to the extent of granting special sanction to enter the third option of 'transgender' in the SSLC Book, if that person has undergone SRS;
ii) To issue a writ of mandamus or other appropriate writ or order directing the respondents to implement Ext. P2 State Policy for Transgenders in Kerala 2015 and the dictum laid down by the Hon'ble Supreme Court in NALSA Vs. Union of India [2014(2)KLT 378(SC)] in its letter and spirit;
iii) To issue a writ of mandamus or other appropriate writ or order directing the 1st respondent to re-issue Exts. P3 and P4 identity cards indicating the gender identity of the transgender person forthwith;
iv) To issue a writ of mandamus or other appropriate writ or order directing the 1st respondent to issue transgender certificate and identity cards to the transgender persons in accordance with Ext. P2 State Policy for Transgenders in Kerala 2015 and the dictum laid down by the Hon'ble Supreme Court in NALSA Vs. Union of India [2014(2) KLT
378 (SC)];
v) To issue a writ of mandamus or other appropriate writ or order directing the 2nd respondent to consider and dispose of Ext. P5 with notice and opportunity of hearing to the petitioners forthwith or within such time as this Hon'ble Court may deem just and proper in the interest of justice;”
2. Heard the learned counsel for the petitioners and the learned Government Pleader.
3. It is submitted by the learned counsel for the petitioners that the directions issued in Exhibit P1 as also the identification being done as is evident from Exhibits P3 and P4 are against the findings and the observations made by the Apex Court in the decision reported in National Legal Services Authority v. Union of India (2014 (2) KLT 378 (SC). It is stated that Exhibit P1 provides that only those persons who have undergone sex change surgery would have their gender recorded as 'Transgender' in their identification. The learned counsel for the petitioners would contend that this is a clear violation of the guidelines laid down in the judgment of the Apex Court as referred to above. It is further stated that Exhibits P3 and P4 are also not in accordance with the directions issued by the Apex Court.
4. Petitioners have approached the 2nd respondent with Exhibit P5 representation pointing out these aspects. However, since Exhibit P1 is a Government Order, I am of the opinion that Exhibit P5 representation preferred by the petitioners is liable to be considered by the Government in its Social Justice Department.
5. In the above view of the matter, there will be a direction to the 2nd respondent to forward Exhibit P5 to the 1st respondent. The 1st respondent shall thereupon issue notice to the petitioners and any other affected parties by issuing public notice, if necessary and hear them and pass appropriate orders on Ext.P5, in accordance with law. The binding decision of the Apex Court shall also be considered before orders are passed, as directed above. Necessary action shall be taken within a period of four months from the date of receipt of a copy of this judgment.
The writ petition is ordered accordingly.
