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2022 DIGILAW 443 (GAU)

Bevin Basumatary v. Cotton University

2022-04-29

DEVASHIS BARUAH

body2022
JUDGMENT : (Devashis Baruah, J.) : – 1. Heard Mr. P. R. Sarma, the learned counsel for the petitioner and Mr. P. D. Nair, the learned Standing Counsel, Cotton University appearing on behalf of the respondent Nos. 1 & 2. 2. The instant writ petition has been filed by the petitioner being aggrieved by the inaction of the respondent No. 2 to change the name of the petitioner from Bandana Basu-matary to Bevin Basumatary in his Mark Sheet for the M.A. (Economics) course. 3. The case of the petitioner is that the petitioner is a post-graduate degree holder in M.A. (Economics) from Cotton College (now Cotton University) and he is presently unemployed. The petitioner was born as a female and was named as Bandana Basumatary. Over the years there are certain physical and mental changes in the petitioner resulting in a medical opinion given by Dr. Jayashree Das, Consultant Clinical Psychologist wherein it was opined that the petitioner, aged 26 years, was born of a female sex but since childhood, the petitioner identified as a male and wished to be perceived as a male. For the purpose of the instant dispute, the relevant part of the said opinion so given by Dr. Jayashree Das is reproduced herein below: "This is to certify that I have evaluated Bevin Basumatary, aged 26 years, born of a female sex. Since Childhood Bevin identified as a male and wished to be perceived as male. She has intense dysphoria with her physical secondary sexual characteristics which are female and wishes to undergo medical (hormonal) and surgical procedures to align her body with her experienced/expressed gender, fully aware of the risks and consequences involved, including infertility. There is no history of any major psychopathology on mental status examination and psychological test apart from symptoms of Anxiety, Depression and Avoidant Personality Traits secondary due to Gender Dysphoria at present. {Psychological Reports from Rorschach Inkblot Test. Million Clinical MultiAxial Inventory III (MCMI III), Beck Depression inventory (BDI), Beck Anxiety inventory (BAI) are attached herewith}. Bevin Basumatary meets the DSM 5 diagnostic criteria for Gender Dyasphoria and is fit to give consent for Gender Affirmation Procedures such as Hormone Replacement Therapy, Breast Reduction Surgery and Panhysterectomy." 4. {Psychological Reports from Rorschach Inkblot Test. Million Clinical MultiAxial Inventory III (MCMI III), Beck Depression inventory (BDI), Beck Anxiety inventory (BAI) are attached herewith}. Bevin Basumatary meets the DSM 5 diagnostic criteria for Gender Dyasphoria and is fit to give consent for Gender Affirmation Procedures such as Hormone Replacement Therapy, Breast Reduction Surgery and Panhysterectomy." 4. From a perusal of the said medical opinion it appears that the petitioner has intense dysphoria with the petitioner's physical secondary sexual characteristics which are female and wishes to undergo medical (hormonal) and surgical procedures to align her body with her experienced/expressed gender. 5. Sec. 2(k) of the Transgender Persons (Protection of Rights) Act, 2019 (for short, the Act of 2019), inter-alia defines "transgender person" to mean 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). Sec. 2(k) of the Act of 2019, being relevant, is quoted herein below: "2(k) 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." 6. A trans-man is given the meaning of a man who was assigned female at birth. Trans- men have male gender identity, may experience Gender Dysphoria, and may transition. As there is medical opinion found that the petitioner is in the state of Gender Dysphoria, the petitioner would have to be understood to be a trans-man and being a trans-man, the petitioner would be within the definition of "transgender person" as defined in Sec. 2(k) of the Act of 2019. The record further reveals that in the process, the petitioner has also obtained an Aadhar Card being No. 3235 1199 737 as male, Election Commission of India's Identity Card as Bevin Basumatary as well as PAN Card issued by the Income Tax Department as Bevin Basumatary. 7. The record further reveals that in the process, the petitioner has also obtained an Aadhar Card being No. 3235 1199 737 as male, Election Commission of India's Identity Card as Bevin Basumatary as well as PAN Card issued by the Income Tax Department as Bevin Basumatary. 7. In this writ petition, the petitioner seeks for a direction to the authorities in the Cotton University that the name incorporated in the Mark Sheets of M.A. (Economics) be changed to Bevin Basumatary. A further issue is raised by referring to the provisions of law laid down by the Supreme Court in paragraph No. 22 and paragraph No. 135.2 of the judgment rendered in National Legal Services Authority Vs. Union of India and Ors., reported in (2014) 5 SCC 438 that the petitioner has a right to decide the self identified gender and accordingly although the petitioner was female at birth but because of the state of Gender Dysphoria be now accepted to be a male gender. In paragraph No. 22 of the judgment of the Supreme Court in National Legal Services Authority (supra) it has been provided that sexual orientation refers to an individual's enduring physical, romantic and/or emotional attraction to another person. Sexual orientation includes transgender and gender-variant people with heavy sexual orientation and their sexual orientation may or may not change during or after gender transmission, which also includes homo-sexual, bisexuals, heterosexuals, asexual etc. and that gender identity and sexual orientation are different concepts. Each person's self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination. Paragraph No. 22 of the said judgment is extracted below: "22. Sexual orientation refers to an individual's enduring physical, romantic and/or emotional attraction to another person. Sexual orientation includes transgender and gender-variant people with heavy sexual orientation and their sexual orientation may or may not change during or after gender transmission, which also includes homosexuals, bisexuals, heterosexuals, asexual, etc. Gender identity and sexual orientation, as already indicated, are different concepts. Each person's self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self- determination, dignity and freedom and no one shall be forced to undergo medical procedures, including SRS, sterilisation or hormonal therapy, as a requirement for legal recognition of their gender identity." 8. Each person's self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self- determination, dignity and freedom and no one shall be forced to undergo medical procedures, including SRS, sterilisation or hormonal therapy, as a requirement for legal recognition of their gender identity." 8. Further to that in paragraph No. 135.2 of the said judgment in National Legal Services Authority (supra), it was observed that transgender persons' right to decide their self- identified gender was recognized and the Centre and State Governments were directed to grant legal recognition of their gender identity such as male, female as third gender. Paragraph No. 135.2, being relevant, is quoted herein below:- "135.2 Transgender persons' right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female as third gender." 9. The case of the petitioner is that the petitioner has submitted a representation on 7/1/2022 to the Controller of Examinations, Cotton University for change of the name and gender identity in the petitioner's Mark Sheet. But the respondent authorities have not done so which as per the petitioner not only violated the mandate of the judgment of the Supreme Court in National Legal Services Authority (supra) but also the provisions of the Act of 2019 and the Rules framed therein under. 10. Mr. P. D. Nair, the learned Standing Counsel appearing on behalf of the Cotton University, however, submits that the instant writ petition is not maintainable without the District Magistrate being made a party inasmuch as it is the District Magistrate who has the authority in terms of the Act of 2019 for issuing a certificate of identity as a transgender person and it is upon such certificate of identity being issued, the respondent Cotton University can take appropriate action deemed pursuant thereto. In that regard, the learned counsel appearing on behalf of the Cotton University refers to Ss. 4, 5, 6 and 7 of the Act of 2019. The said Ss., being relevant, are quoted herein below: 4. (1) A transgender person shall have a right to be recognised as such, in accordance with the provisions of this Act. (2) A person recognised as transgender under sub-sec. (1) shall have a right to self-perceived gender identity. 5. 4, 5, 6 and 7 of the Act of 2019. The said Ss., being relevant, are quoted herein below: 4. (1) A transgender person shall have a right to be recognised as such, in accordance with the provisions of this Act. (2) A person recognised as transgender under sub-sec. (1) shall have a right to self-perceived gender identity. 5. A transgender person may make an application to the District Magistrate for issuing a certificate of identity as a transgender person, in such form and manner, and accompanied with such documents, as may be prescribed: Provided that in the case of a minor child, such application shall be made by a parent or guardian of such child. 6. (1) The District Magistrate shall issue to the applicant under sec. 5, a certificate of identity as transgender person after following such procedure and in such form and manner, within such time, as may be prescribed indicating the gender of such person as transgender. (2) The gender of transgender person shall be recorded in all official documents in accordance with certificate issued under sub-sec. (1). (3) A certificate issued to a person under sub-sec. (1) shall confer rights and be a proof of recognition of his identity as a transgender person. 7. (1) After the issue of a certificate under sub-sec. (1) of sec. 6, if a transgender person undergoes surgery to change gender either as a male or female, such person may make an application, along with a certificate issued to that effect by the Medical Superintendent or Chief Medical Officer of the medical institution in which that person has undergone surgery, to the District Magistrate for revised certificate, in such form and manner as may be prescribed. (2) The District Magistrate shall, on receipt of an application along with the certificate issued by the Medical Superintendent or Chief Medical Officer, and on being satisfied with the correctness of such certificate, issue a certificate indicating change in gender in such form and manner and within such time, as may be prescribed. (3) The person who has been issued a certificate of identity under sec. 6 or a revised certificate under sub-sec. (2) shall be entitled to change the first name in the birth certificate and all other official documents relating to the identity of such person: Provided that such change in gender and the issue of revised certificate under sub-sec. (3) The person who has been issued a certificate of identity under sec. 6 or a revised certificate under sub-sec. (2) shall be entitled to change the first name in the birth certificate and all other official documents relating to the identity of such person: Provided that such change in gender and the issue of revised certificate under sub-sec. (2) shall not affect the rights and entitlements of such person under this Act. 11. A conjoint reading of the above Ss. would show that a transgender person as defined in Sec. 2(k) of the Act of 2019 shall have a right to be recognized as such in accordance with the provision of the Act of 2019 and such person so recognized as a transgender shall have a right to self-perceived gender identity. For that purpose, a transgender person in terms with Sec. 5 of the Act of 2019 needs to make an application to the District Magistrate for issuing a certificate of identity as a transgender in such form and manner and accompanied with such documents as may be prescribed. The proviso to Sec. 5 stipulates that in the case of a minor child, such application shall be made by the parents or guardian of such child. Sec. 6 stipulates that the District Magistrate shall issue to the applicant under Sec. 5, a certificate of identity as transgender person after following such procedure and in such form and manner, within such time, as may be prescribed indicating the gender of such person as transgender. Thereupon, the gender of transgender person shall be recorded in all official documents in accordance with certificate issued under sub-sec. (1) of Sec. 6. It is also made clear by sub-sec. (3) of Sec. 6 that a certificate issued to a person under sub-sec. (1) of Sec. 6 shall confer rights and be a proof of recognition of his/her/its identity as a transgender person. The effect of the issuance of the certificate can be seen from a reading of Sec. 7 which stipulates that after the issue of a certificate under sub-sec. (1) of sec. (1) of Sec. 6 shall confer rights and be a proof of recognition of his/her/its identity as a transgender person. The effect of the issuance of the certificate can be seen from a reading of Sec. 7 which stipulates that after the issue of a certificate under sub-sec. (1) of sec. 6, if a transgender person undergoes surgery to change gender either as a male or female, such person may make an application, along with a certificate issued to that effect by the Medical Superintendent or the Chief Medical Officer of the medical institution in which that person has undergone surgery, to the District Magistrate for revised certificate, in such form and manner as may be prescribed. The District Magistrate shall thereupon on receipt of such application along with the certificate issued by the Medical Superintendent or the Chief Medical Officer, and on being satisfied with the correctness of such certificate, issue a certificate indicating change in gender in such form and manner and within such time, as may be prescribed. Sub-sec. (3) of Sec. 7 is relevant for the purpose of the instant dispute inasmuch as the person who has been issued a certificate of identity under Sec. 6 or a revised certificate under sub-sec. (2) of Sec. 7 shall be entitled to change the first name in the birth certificate and all other official documents relating to the identity of such person. The proviso to sub-sec. (3) of Sec. 7 further stipulates that such change in gender and the issue of revised certificate under sub-sec. (2) shall not affect the rights and entitlements of such person under this Act. 12. Sec. 22 empowers the Appropriate Government to make Rules for carrying out the provisions of the Act. Accordingly, the Central Government has framed Rules known as Transgender Persons (Protection of Rights) Rules, 2020 (for short, the Rules of 2020). The said Rules were duly notified by the Notification bearing No.G.S.R.592(E) dtd. 25/9/2020. The application which is required to be made under Sec. 5 of the Act of 2019 is to be done in the manner as stipulated in Form-1 as can be seen from a perusal of Rule 3(1). The said Rules were duly notified by the Notification bearing No.G.S.R.592(E) dtd. 25/9/2020. The application which is required to be made under Sec. 5 of the Act of 2019 is to be done in the manner as stipulated in Form-1 as can be seen from a perusal of Rule 3(1). The said application can be submitted to the District Magistrate in person or by post, till online facility is developed by the State Government concerned, and thereafter, the application shall be made by online only, once online facility is available. Sub-rule (3) of Rule 3 is relevant inasmuch as transgender persons who have officially recorded their change of gender, whether as male, female or transgender, prior to the coming into force of the Act of 2019 shall not be required to submit an application for certificate of identity under the Rules. At this stage, it may be relevant to mention that the Central Government had in exercise of the powers conferred under Sec. 1 (3) of the Act of 2019 had issued a notification bearing No.S.O.135(E) thereby appointing 10/1/2020 as the date on which the provisions of the Act of 2019 shall come into force. Consequently, in view of Rule 3(3) of the Rules of 2020, if a transgender person who had officially recorded his/her/its change in gender prior to 10/1/2020, the said person is not required to submit an application for certificate of identity under the Rules of 2020. At this stage, it may not be out of place to mention that Annexure-I of the Rules of 2020 illustrates the official documents which includes inter-alia an Aadhar Card, Election Photo Identity Card, Permanent Account Number (PAN), Driving Licence etc. 13. Rule 4 stipulates the procedure for issuance of certificate of identity. Rule 5 (1) stipulates that the District Magistrate shall issue to the applicant, a certificate of identity in Form- 3 following the procedure provided in Rule 4 indicating the gender of such person as transgender and the said certificate of identity shall be issued within 30 days from the date of receipt of the duly filled in application along with the affidavit in terms with sub-rule (2) of Rule 5. 14. Rule 6 relates to the procedure for issuance of certificate of identity for change of gender and Rule 7 stipulates the procedure for issuance of certificate of identity under Sec. 7. 14. Rule 6 relates to the procedure for issuance of certificate of identity for change of gender and Rule 7 stipulates the procedure for issuance of certificate of identity under Sec. 7. Rule 8 stipulates that in case of rejection of an application made under Rule 3, the District Magistrate shall inform the applicant the reason or reasons for such rejection within 30 days from the date of receipt of such application and the District Magistrate have been empowered to review the said decision of rejection based on the reply submitted by the applicant regarding the reason for rejection communicated in terms with Sub-Rule (1) of Rule 8, within 60 days from the date of such rejection. The applicant has a right of appeal within 90 days from the date of intimation of the rejection of the application to the Appellate Authority to be designated by the appropriate Government by notification for a final order, in terms with Rule 9. 15. In the backdrop of the above, let this Court take into consideration the facts of the instant case. It is an admitted fact that the petitioner is suffering from Gender Dysphoria. In terms with Rule 3(3) in case of transgender persons who have officially recorded their change of gender, whether as male, female or transgender, prior to the coming into force of the Act of 2019 shall not be required to submit an application for certificate of identity under the Rules. 16. In the instant case, the petitioner has enclosed various documents, i.e., Aadhar Card, Election Commission of India's Identity Card as well as PAN Card. The said documents read with the affidavit enclosed to the writ petition as well as the Opinion cum Fitness Certificate dt. 13/3/2021 recording the petitioner to be 26 years show that the said documents were issued after the Act of 2019 had come into force. Consequently, the said documents do not come within the ambit of Rule 3(3) and thereby exempting the petitioner from filing an application in terms with Sec. 5 of the Act of 2019 and the Rules framed therein under. Consequently, the actions on the part of the respondent Cotton University cannot be faulted for not changing the name of the petitioner in the Marks Sheets for the M.A. (Economics) course. 17. Consequently, the actions on the part of the respondent Cotton University cannot be faulted for not changing the name of the petitioner in the Marks Sheets for the M.A. (Economics) course. 17. Taking into consideration the provisions of the Act of 2019 and the Rules framed therein under, this Court is of the opinion that the petitioner is required to file an application before the District Magistrate in Form-1 along with an affidavit in Form-2 accompanied by self attested copies of the documents as mentioned in Form-1. On such application being filed the District Magistrate shall take a decision within a period of 30 days from the date of receipt of the said application and thereupon consider the said application as required under the provisions of the Act of 2019 and the Rules framed therein under. 18. In view of the above, this Court grants the liberty to the petitioner to file an application in terms with the Act of 2019 and the Rules framed therein under and upon such application being filed, the District Magistrate, i.e., the Deputy Commissioner, Kamrup (Metro) shall consider the same and if found in order shall issue the certificate within 30 days from the date of receipt of the application along with the affidavit and the self attested documents. 19. It is observed that upon the issuance of the said certificate, by virtue of Ss. 6 (2) and Sec. 7 (3) of the Act of 2019, the petitioner shall be entitled to change his name in his birth certificate as well as all other official documents relating to the identity of the petitioner. It is directed that upon issuance of the certificate by the District Magistrate, the petitioner shall be at liberty to submit the said certificate before the Controller of Examinations, Cotton University and thereupon not later than four weeks from the date of submission by the petitioner, the respondent Cotton University shall effect such changes on the basis of the certificate so issued. It is clarified that the direction issued in the instant paragraph is dependent upon the issuance of the certificate by the District Magistrate. 20. With the above observation and direction, this writ petition stands disposed of.