Transgenders who have officially recorded change in gender before 2019 Act not required to apply for certificate of identity: Karnataka HC

The Karnataka High Court recently observed that transgender persons who have officially recorded change in gender prior to the Transgender Persons (Protection of Rights) Act, 2019 are not required to submit an application for a certificate of identity under Transgender Persons (Protection of Rights) Rules, 2020 [Christina Lobo v. State of Karnataka]..While passing the said order, the Bench of Justice John Michael Cunha relied on the decision of NALSA vs Union of India and others, wherein the Supreme Court had upheld the right of transgender persons to decide their self-identity..Factual Background .The petitioner claimed to be a transgender whose gender does not match with the gender assigned to her at birth. She was born as a biological male, and the same was reflected in her birth certificate. .According to the petitioner, she had identified herself as a female from a very young age. Even though she was assigned as male at birth, her self-identified gender identity is female. She also underwent gender re-assignment surgery in 2018. Subsequently, she obtained an Aadhaar card and a passport reflecting her new name and gender as female..The petitioner had executed an affidavit dated October 31, 2019 regarding her intent to change her name and gender in two notifications published in Vijaya Karnataka and Times of India. .Her grievance was that the respondents refused to change her name and gender in SSLC and PUC marks cards. .Therefore, the petitioner sought for a direction to issue a revised Pre-university certificate and to set aside the order passed by CBSE. She also prayed for name and gender to be changed in her MBBS marks card and educational records. .Arguments Advanced .Counsel for the Karnataka Secondary Education Examination Board raised a contention that under 2019 Act, a transgender is required to make an application to the District Magistrate for issuance of a certificate of identity as a transgender person..Further, the counsel submitted that there is no provision in the examination by-laws of the Board to effect change in gender and name of the students. Therefore, it was argued that the order passed by the Board cannot be faulted with..Counsel for the petitioner argued that her identity had been changed much prior to the 2020 Act coming into force, and therefore, the procedure contemplated under the 2020 Act was not applicable to her..It was further submitted that as per the judgment in NALSA's case, the state government and all its instrumentalities is required to grant recognition to the self-identified gender of the petitioner. .What the Court held.After noting the NALSA decision on self-identification of transgender persons, the Court delved into sub-rule (3) of Rules 6 of the Transgender Persons (Protection of Rights) Rules, 2020. It held,."As could be seen from sub-rule(3) above, transgender persons who have officially recorded their change in gender, whether as male, female or transgender, prior to the coming into force of the Act are not required to submit an application for certificate of identity under these rules."Karnataka High Court.It was further noted that since the petitioner's identity is officially recorded in her Aadhaar card and passport, she was not required to make an application for a certificate of identity..The Court thus directed the State Of Karnataka (Department Of Pre-University Education), the Karnataka Secondary Education, Central Board of Secondary Education (CBSE), and Rajiv Gandhi University Of Health Sciences (Bengaluru) to change the name and gender of a transgender petitioner in their respective educational records as her chosen name and her gender as "female", and issue a revised marks card..[Read order here]