External Affairs not compliant with Supreme Court ruling on transgender rights

Avi Dutta is a genderqueer Indian citizen pursuing graduate studies in Canada. In April 2015, when they were exploring getting their gender change marked on their Indian passport, they found that the Ministry of External Affairs required proof of a ‘sex change’ surgery on its Passport Seva website.

Incensed at this gross violation of the Supreme Court’s NALSA ruling, Avi filed the following online RTI, providing a summary of the ruling as attachment:

“The Honourable Supreme Court in its judgement dated 15th April 2014 in W.P. (Civil) No. 400 of 2012 held that Transgender individuals have the right to decide their self-identified gender and the Centre and State Governments were directed to grant legal recognition of their gender identity such as male, female or as third gender. NALSA’s reasoning rests on two broad stands of human rights: freedom and equality. Underscoring the right to personal autonomy and self-determination under Article 21 of Indian Consitution, the Court observed that the gender to which a person belongs is to be determined by only the person concerned. The decision recognises the right of a person to identify in the gender that they relate to, that is, male, female or third gender, irrespective of medical/surgical intervention. 

“So the gender assigned to me at my birth, i.e. male, is nothing but my gender expression which is not always in line with my gender identity and since now I have an opportunity to correct it, I should be allowed to change the gender/sex section of all of my official documents including passport without undergoing gender reassignment surgery.

“However, while doing the same through Passport Seva website, I was asked to provide four mandatory documents:
1. Document type 8017: my original passport
2. Document type 7001: the proof of present address
3. Document type 8049 : Sworn affidavit regrading change of sex.
4. Document type 8050 : Certification from hospital where he/she underwent sex change operation successfully

“I simply failed to understand how the Ministry of External Affairs is still holding onto something which was declared illegal one year ago. No one should be forced to undergo medical procedures, including SRS, sterilization or hormonal therapy, as a requirement for legal recognition of their gender identity. This whole process of asking individuals for a medical certificate to prove their gender identity is not only brutally humiliating but it is also showing that the various departments of Indian Government are not in sync. Government is contradicting itself.

I am hereby attaching a document for you which will help you understand the last years judgment.”

The relevant sections of the reply are reproduced below:

This reply reflects a failure on the part of the Ministry of External Affairs to understand the NALSA ruling. Adding a third gender or “T” category does not suffice to make the Ministry of External Affairs NALSA-compliant if it still requires proof of surgery for recording a change of gender. Further, not all transgender people seek to identify as “T”, and are at liberty to identify as M or F, per the judgement.

We thank Avi for sharing this correspondence, and urge readers to share other instances where central Ministries and their departments at state and district level continue to function based on ignorance or misinterpretation of the NALSA ruling.