It is definitely most refreshing, most reassuring and most reinvigorating to note that while taking the right step in the right direction at the right time, the Single Judge Bench of the Uttarakhand High Court in Nainital comprising of Hon'ble Mr Justice Manoj Kumar Tiwari in a most learned judgment which he authored most brilliantly cited in 2024:UHC:6094 and so also mentioned as WPMS No. 215 of 2024 has most rightly, robustly and rationally directed the State Government to promptly address a proposal from the Uttarakhand School Education Board seeking amendments to its regulations concerning the name and gender changes of transgender individuals in educational certificates. The High Court at Nainital has also quashed the Uttarakhand School Education Board's decision to deny the change of name and gender in educational certificates of a transgender petitioner, Shreyansh Singh Bisht. It must be also mentioned here that the petitioner who was formerly known as Ms. Seema Bisht, underwent sexual reassignment surgery in 2020 and legally changed his name and gender.
Despite holding an identity that had been issued by the District Magistrate, Nainital, under Section 7 of the Transgender Persons (Protection of Rights) Act, 2019, most astoundingly we see that his most genuine request to update his name and gender in his educational certificates was turned down by the Uttarakhand School Education Board relying on outdated regulations. The Board cited that his case was not covered under Clause 27 of Chapter-12 of its Regulations, which only allows changes to names that are obscene, abusive, or disrespectful. It is most encouraging to note that in a most courageous step, we see clearly that the Uttarakhand High Court was most forthright to criticized the Board's over reliance on the outdated regulations highlighting that Regulation 27 was established before significant legal advancements in transgender rights including the Supreme Court's landmark ruling in National Legal Services Authority v. Union of India and the enactment of the Transgender Persons (Protection of Rights) Act, 2019.
Resultantly, we see here that the Uttarakhand High Court decided to set aside the Board's rejection of the petitioner's request and directed the Secretary of the School Education Department to take a decision on the proposed amendments within three weeks. The Board is then required to reconsider the petitioner's application in accordance with law. Very rightly so!
To put things in perspective, the Bench envisages in para 4 that:
Petitioner underwent sexual reassignment surgery in the year 2020. As per certificate dated 28.12.2020, issued by Consultant, Department of Plastic & Cosmetic Surgery, Sir Ganga Ram Hospital, New Delhi, before surgery petitioner was a female and was known as 'Ms. Seema Bisht', but, after surgery, he has to be considered as male with preferred name 'Mr. Shreyansh Singh Bisht'. District Magistrate, Nainital has issued an Identity Card to petitioner, in terms of Section 7 of Transgender Persons (Protection of Rights) Act, 2019 r/w Rule 6 of the Transgender Persons (Protection of Rights) Rules, 2020, which is on record as Annexure-2 to the writ petition.
As we see, the Bench then enunciates in para 5 that:
Perusal of the said certificate reveals that sex of petitioner has undergone a change; he has become male, and his name is mentioned as 'Shreyansh Bisht'.
As it turned out, the Bench discloses in para 6 that:
Since petitioner passed High School Examination and Intermediate Examination in the year 2006 & 2008 respectively, therefore, after undergoing surgery, she made an application to Uttarakhand School Education Board for change of her name and sex in the mark-sheet/certificates issued in respect of High School and Intermediate examinations.
Do note, the Bench notes in para 7 that:
Petitioner's request has been turned down by Joint Secretary, Uttarakhand School Education Board, vide order dated 18.08.2021. the sole reason assigned for rejecting petitioner's application is that his case is not covered by Clause 27 of Chapter-12 of the Regulations framed by the Board. Thus, feeling aggrieved, petitioner has approached this Court seeking the following reliefs:-
- Issue a writ, order or direction, in the nature of certiorari quashing impugned letter dated 18/08/2021 contained as Annexure No. 4 to the writ petition.
- Issue a writ, order or direction, in the nature of mandamus commanding the respondents for issuance of fresh changed mark sheets and certificates to petitioner as per changed name in the certificate issued by the District Magistrate to the petitioner.
- Issue a writ, order or direction, in the nature of mandamus commanding the respondents for framing relevant rules for change of name of transgender persons in their educational certificates.
It is worth noting that the Bench while citing the relevant provisions and the relevant case laws notes in para 10 that:
Parliament has enacted the Transgender Persons (Protection of Rights) Act, 2019, which confers certain rights upon transgender persons. Hon'ble Supreme Court in the case of National Legal Services Authority v. Union of India & others, (2014) 5 SCC 438 has recognised right to decide self identity and gender. Hon'ble Allahabad High Court in the case of Shivanya Pandey v. State of U.P. and others reported in 2021 AWC 5976 has held as under:-
9. The very purpose of bringing in force the Act is to provide equality and respect to the transgender persons. The Act is a socially beneficial legislation and therefore, this Act cannot be given an interpretation which would defeat the very purpose for which the same is brought in force. It has to be interpreted in a manner that solemn purpose for which it is legislated is achieved. The purpose is to give recognition to transgender persons as they perceived themselves and, in case, they undergo a gender reassignment procedure, to provide them appropriate changed certificates and identity documents. Therefore, Section 7 of the Act cannot be given a meaning confined in the manner argued by learned Standing Counsel. Section 7 is required to be interpreted in a manner that the transgender persons who are issued a certificate under Section 6 or persons like petitioner who had undergone the gender re-assignment procedure prior to coming into force of the Act, both are held entitled to apply before the District Magistrate for issuance of a certificate indicating change in gender. Only on the basis of such a certificate issued by the District Magistrate under Section 7 of the Act the transgender person can apply for change of their birth certificate and other official documents relating to their identity. Denying such a right to persons who had already undergone the gender re-assignment procedure would frustrate the very purpose of the Act, as large number of persons would be left out discriminated in the society.
While citing another recent and relevant case law, the Bench hastens to add in para 11 stating that:
Hon'ble Karnataka High Court in Jeeva M. v. State of Karnataka and another (Writ Petition No. 12113 of 2019) has relied upon the judgment rendered by Hon'ble Apex Court in the case of National Legal Services Authority (supra) for issuing direction to the State Government to take necessary steps to ensure that transgender persons are not driven to Courts for changing their name and gender in educational certificates. Para nos. 8 & 9 of the said judgment are extracted below:-
8. The Hon'ble Apex Court in the case of National Legal Services Authority vs. Union of India and others reported in (2014) 5 SCC 438 has observed thus:-
135.1. Hijras, eunuchs, apart from binary genders, be treated as third gender, for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by Parliament and the State Legislature.
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 or as third gender.
135.3. We direct the Centre and the State Governments to take steps to treat them as Socially and Educationally Backward Classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.
9. In the light of the judgment of the Hon'ble Apex Court as aforesaid, it is mandatory for the State of Karnataka represented by the Principal Secretary of Educational Department to issue circular instructions to the authorities/institutions concerned to act in consonance with the directions issued by the Hon'ble Apex Court. The Principal Secretary, Education Department, State of Karnataka shall consider the same and take necessary action to implement the directions of the Hon'ble Apex Court in an expedite manner without driving the Transgenders to Courts in as much as change of their name and gender is concerned.
Quite naturally, the Bench points out in para 12 that:
The ground taken for rejecting petitioner's application cannot be sustained in the eyes of law. Regulation 27, which has been relied by respondent no. 2 for rejecting petitioner's application was incorporated in the statute book before judgment of Hon'ble Supreme Court in the case of National Legal Services Authority (supra). Parliament has also stepped in for protecting the rights of transgender persons.
Most significantly and so also most forthrightly, the Bench postulates in para 13 that:
In view of these developments, Regulation 27 cannot remain static. Uttarakhand School Education Board, which is responsible for incorporating change in the name/sex of a student in the certificates has recognised the right of transgender persons and has submitted proposal seeking permission to amend the Regulations. State Government, however, is sitting tight over the matter. Delay on the part of State Government is against public interest and is also against the spirit of the Transgender Persons (Protection of Rights) Act, 2019.
Finally and as a corollary, the Bench then concludes by holding in para 14 that, In such view of the matter, the impugned rejection order dated 18.08.2021 deserves to be set aside and is hereby set aside. The writ petition is allowed. Secretary, School Education Department, Government of Uttarakhand is directed to take decision on the proposal submitted by respondent no. 2 on 26.08.2023 and 05.02.2024 in the light of the spirit of the Transgender Persons (Protection of Rights) Act, 2019 and the Rules framed thereunder, within three weeks from the date of production of certified copy of this order. Respondent no. 2 shall thereafter re-consider petitioner's application, as per law, within two weeks.
In a nutshell, we thus see that the Uttarakhand High Court very rightly took potshots at the State Government for delaying action on amending Clause 27 of Chapter-12 of the Uttarakhand School Education Board's Regulations, which governs the change of name and gender in High School and Intermediate examination certificates. It is thus the bounden duty of the State Government to abide strictly as directed by the Uttarakhand High Court in this leading case and act accordingly. No denying it!
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh
