Karnataka High Court
Ms. X vs The State Of Karnataka on 20 December, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 55559 OF 2017 (GM-RES)
BETWEEN:
MS. X
AGED 34 YEARS
RESIDING AT GULIGA AJJAKALLKARKERA GARDEN
NEAR JANATHA KENDRA, BOLAR
MANGALORE
DAKSHINA KANNADA DISTRICT
KARNATAKA-575 001.
...PETITIONER
(BY MS. APARNA MEHROTRA FOR SRI NAVEEN
CHANDRA V., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF LAW
GROUND FLOOR
VIDHANA SOUDHA
BENGALURU-560 001
Digitally signed
by SHWETHA THROUGH THE PRINCIPAL SECRETARY.
RAGHAVENDRA
Location: HIGH
COURT OF 2. THE HEALTH OFFICER/REGISTRAR OF
KARNATAKA BIRTH AND DEATH CERTIFICATE
MANGALURU CITY CORPORATION
M.G.ROAD, LALBAUG
MANGALURU-575 003.
...RESPONDENTS
(BY SRI MAHANTESH SHETTER, A.G.A., FOR R-1, &
SRI K.N. NITHISH, ADVOCATE, FOR R-2)
***
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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO DECLARE THAT SECTION 15
OF THE REGISTRATION OF BIRTHS AND DEATHS ACT, 1969 AND
RULE 11(4) OF THE KARNATAKA REGISTRATION OF BIRTHS AND
DEATHS RULES, 1999 BE READ DOWN SO AS TO INCLUDE ALL
VOLUNTARY CHANGES TO NAME AND GENDER IDENTITY IN ONE'S
BIRTH CERTIFICATE, AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS AND HAVING
BEEN RESERVED FOR ORDERS ON 02.12.2024, THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE SURAJ GOVINDARAJ
CAV ORDER
1. The petitioner is before this Court seeking for the
following reliefs:-
i. Declare that Section 15 of the Registration of Births
& Deaths Act, 1969 and Rule 11 (4) of the
Karnataka Registration of Births and Deaths Rules,
1999 be read down so as to include all voluntary
changes to name and gender identity in one's birth
certificate.
ii. Issue a writ in the nature of mandamus directing
the Respondent No.2 to issue to the petitioner a
new Birth Certificate reflecting her current name
and gender identity' and
iii. Grant any other relief, which the Hon'ble Court
deems fit in the circumstances of the case in the
interests of justice and equity.
2. The petitioner was born as a male on 06.04.1983 and
the birth came to be registered on 20.04.1983 with
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registration No.557. The petitioner having been
diagnosed and found suffering from gender
Dysphoria on 16.07.2007 during psychiatric
evaluation at the Victoria Hospital, Bangalore, the
petitioner having felt like a girl in a man's body. On
reassessment being made by the concerned Doctors
and authorities, the petitioner underwent sex re-
assignment Surgery after due approval. Thereafter,
the petitioner changed her name and made various
applications for necessary changes of name and
gender to be effected in identity documents like
Aadhaar Card, driving licence and passport etc.,
which were so permitted.
3. When the petitioner made an application to
respondent No.2 requesting the name and gender of
the petitioner to be changed in the birth certificate to
reflect her correct name and gender as 'female',
respondent No.2 orally informed that Section 15 of
The Registration of Births and Deaths Act, 1969 (for
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short, 'the Act of 1969'), does not contemplate such
a change and/ or a modification to be made in the
birth certificate already issued and the only change
that could be effected is as regards any erroneous
entry made in the birth certificate. It is in that
background that the petitioner is before this Court
seeking for the above reliefs.
4. Ms. Aparna Mehrotra, learned Counsel appearing for
the petitioner submits that the Act of 1969 has not
undergone any change, which was required in view
of the coming into effect of the Transgender
Persons(Protection of Rights) Act, 2019 (hereinafter
referred to as 'the Transgender Act'). The rights
which have been conferred on Transgender persons
under the Transgender Act, have not been suitably
incorporated in the Act of 1969, resulting in an
anomalous situation, where despite the Transgender
Act, permitting the petitioner to avail of a change in
the certificate incorporating the change in name and
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change in gender, the authorities by contending that
Section 15 of the Act of 1969 does not envisage such
a situation, have refused to act on the application
submitted by the petitioner and in that background,
she submits that the reliefs sought for in the petition
are required to be granted.
5. Learned Addl. Government Advocate Sri. Mahantesh
Shetter appearing for respondent No.1 submits that
the Registrar of Births and Deaths can act only in
terms of the Act of 1969. The Act of 1969 not
providing for change in the name or gender to be
made post the entry in the register of births, such a
correction in name and gender cannot be effected by
the Registrar and it is for that reason, that the
application has not been acted upon.
6. Heard Ms. Aparna Mehrotra, learned Advocate for the
petitioner, learned Addl. Government Advocate
Sri. Mahantesh Shetter, for respondent No.1 and
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Sri. K.N. Nithish, learned Counsel for respondent
No.2 and perused the papers.
7. The Transgender Persons (Protection of Rights) Act,
2019 [hereunder referred to as "Transgender Act"]
was enacted and came into effect on 10.01.2020
vide Notification No.S.0.135(E) dated 10th January
2020 published in Gazette of India, Extraordinary,
Part II.
8. Transgender Act was promulgated after taking into
consideration the lacunae in the applicable laws to
recognize, cater to and protect the interests of
Transgender persons. Before the Transgender Act,
there was only a binary classification of a person as
'male' or 'female', it is only after the Transgender Act
came into force, the binary classification gave way to
recognition of the third gender namely the
'Transgender'.
9. The Transgender Act has been promulgated to
provide for protection of rights to transgender
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persons and their welfare and also for matters
connected therewith and incidental thereto alongwith
various aspects.
10. Sub-section (k) of Section 2 provides for definition of
Transgender person which reads as under:
(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 Re-
assignment Surgery or hormone therapy or laser
therapy or such other therapy), person with intersex
variations, genderqueer and person having such socio-
cultural identities as kinner, hijra, aravani and jogta.
11. The above definition would indicate that a person
whose gender does not match with the gender
assigned to that person at birth and has undergone
sex reassignment therapy or the like would be a
transgender person whether he is trans-man or
trans-woman.
12. In the present case, the petitioner is a trans-woman,
who has transitioned from man to woman after going
through Sex-Reassignment procedures.
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13. Section 3 deals with prohibition against
discrimination which reads as under:
"3. PROHIBITION AGAINST DISCRIMINATION-
No person or establishment shall on any of the
namely:-
(a) the denial, or discontinuation of or unfair
treatment in, educational establishments and
services thereof;
(b) the unfair treatment in, or in relation to,
employment or occupation;
(c) the denial of, or termination from, employment
or occupation;
(d) the denial or discontinuation of, or unfair
treatment in, healthcare services;
(e) the denial or discontinuation of, or unfair
treatment with regard to, access to, or provision or
enjoyment or use of any goods, accommodation,
service, facility, benefit, privilege or opportunity
dedicated to the use of the general public or
customarily available to the public;
(f) the denial or discontinuation of, or unfair
treatment with regard to the right of movement;
(g) the denial or discontinuation of, or unfair
treatment with regard to the right to reside,
purchase, rent, or otherwise occupy any property;
(h) the denial or discontinuation of, or unfair
treatment in, the opportunity to stand for or hold
public or private office; and
(i) the denial of access to, removal from, or unfair
treatment in, Government or private establishment
in whose care or custody a transgender person may
be."
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14. Section 3 of the Transgender Act provides that there
shall be no prohibition or discrimination against a
transgender person on the basis of such person
being a transgender and by virtue thereof, equal
status has been provided to recognise a transgender
person vis-a-viz a male or a female. That is to say
that any rights that a male or a female may have
would also vest with the transgender person and the
same cannot be denied barely on account of the
person being transgender.
15. Under Section 4, there is a right conferred on the
Transgender person for recognition of the identity of
such a person as a Transgender which reads as
under:
"4. Recognition of identity of transgender
person-
(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-
section (1) shall have a right to self-perceived
gender identity".
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16. Section 4 provides for the recognition of identity of
transgender person providing a right to such person
to be recognized as such on the basis of the self-
perceived gender identity in terms of sub-section (2)
of Section 4.
17. A person when born and the birth certificate is
obtained, the entries made in the birth certificate is
on the basis of the gender as determined by physical
nature as on that date and the name of the person
provided and recorded would be the name as may be
given by the parent or parents of such person.
18. In the case of a transgender, it is only subsequently
that a person realizes that such a person is not a
male or female as shown and recognized in the birth
certificate, but feels otherwise than a male or a
female, inasmuch as, if on birth a person may be
classified as a male and if the person was to be of
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the opinion that he is a female, then upon obtaining
due permission and sanctions, sex reassignment
procedures could be carried out to transition that
male person to a female and vice versa i.e., if on
birth a person may be classified as a female and if
the person was to be of the opinion that she is a
male, then upon obtaining due permission and
sanctions, sex reassignment procedures could be
carried out to transition that female person to a
male.
19. Once such transition occurs, Section 5 of the
Transgender Act provides for an application for
certification of identity to be made in the manner
prescribed, which is so prescribed under Rule 3 of
The Transgender Persons (Protection of Rights)
Rules, 2020 (for short 'the Transgender Rules') and
an application in terms of Form-1 is required to be
filed in relation thereto.
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20. Section 5 of the Transgender Act is reproduced
hereunder for easy reference:
5. Application for certificate of identity.--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.
21. Section 6 of the Transgender Act provides for the
issuance of a certificate of identity the same is
reproduced herein:
"6. Issue of certificate of identity.-(1) The District
Magistrate shall issue to the applicant under section 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-section (1).
(3) A certificate issued to a person under sub-section
(1) shall confer rights and be a proof of recognition of
his identity as a transgender person".
22. Rule 3 of the Transgender Rules is reproduced
hereunder for easy reference:
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"3. Application for issue of certificate of
identity under section 6 or section 7.-(1) A
transgender person desirous of obtaining a
certificate of identity shall make an application as
prescribed in Form - 1.
(2) The application shall be submitted to the District
Magistrate in person or by post till online facilities
are developed by the State Government concerned
and thereafter the application shall be made by
online only:
Provided that the appropriate Government may
undertake measures, as it deems appropriate, to
facilitate the submission of applications for certificate
of identity by transgender persons living in remote
areas or disadvantaged conditions:
Provided further that in case of a minor child, such
application shall be made by a parent or guardian of
such minor child and in the case of a child in need of
care and protection, by the competent authority
under the Juvenile Justice (Care and Protection of
Children) Act, 2015 (2 of 2016).
(3) 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
shall not be required to submit an application for
certificate of identity under these rules:
Provided that such persons shall enjoy all rights and
entitlements conferred on transgender persons
under the Act."
23. Form -1 of the Transgender Rules is reproduced
hereunder for easy reference:
Form - 1
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[See rules 2(d), 3(1) and 6(1)]
Application form for issue of transgender certificate of
identity under Rule Transgender Persons (Protection of
Rights) Rules, 2020 read with Section 6* / 7* of the
Transgender Persons (Protection of Rights) Act, 2019
* Strike out whichever is not applicable
State Emblem
State Government of (name of the State)
Office of the District Magistrate
Application form for issue of a transgender certificate of
identity under Rule Transgender Persons (Protection of
Rights) Rules, 2020
(read with Section 6* / 7* of the Transgender Persons
(Protection of Rights) Act, 2019
* Strike out whichever is not applicable)
1 Name
(i) Given name (in capital letters)
(ii) Changed/Chosen name (in capital
letters)
(iii) Out of (i) and (ii), name to be printed
in the certificate of identity and in the
identity card
2 Gender
(i) Assigned at birth
(ii) Requested in the application
3 Date of birth dd/mm/yyyy
4 Educational qualification
4 Present address
6 Permanent address
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7 If there is a source of income, the
annual income:
(i) Under Rs 1,00,000 YES/NO
(ii) Between Rs 1,00,001 and 3,00,000 YES / NO
(iii) Above Rs 3,00,000 Please specify the
amount
8 Do you have any of the following documents? If so,
please submit self- attested photocopies of the
certificates stated below.
(i) Date of birth certificate
(ii) Aadhaar card YES / NO
(iii) PAN card YES / NO
(iv) Election Voter Identity Card YES / NO
(v) Ration card YES / NO
(vii) Passport YES / NO
(viii) Bank passbook YES / NO
(ix) MNREGA Card YES / NO
(x) Caste certificate (SC/ST/OBC/Others) YES / NO
9 Medical history (for those applying under section 7 of
the Transgender Persons
(Protection of Rights) Act, 2019
(i) Have you undergone any medical YES / NO
intervention in the context of
transgender transition?
(ii) Please give details
(iii) Name and complete address of the
Hospital or medical institute
(iv) Name of the issuing authority along
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with the date
(v) Any other medical status you would
like to share
(vi) Have you been issued any certificate
of identity under Section 6 and
Section 7 under the Act, or any other
ID Card issued by the State Authority
before the commencement of these
Rules? If so, enclosed the same.
10 Any other information you would
like to give
11 Have you attached affidavit
prescribed in Form-2 of the
Transgender Persons (Protection
of Rights) Act, 2019 under Rule-
Transgender Persons Protection
of Rights) Rules, 2020
12. Have you attached the passport Yes/No
size photographs?
Enclosed: documents as mentioned in the application
Declaration
1. I declare that the particulars furnished by me are true and
correct.
2. Information provided in this application will be treated as
confidential and shall not be shared with any person or organisation
save the Central and / or State security agencies, any other agency
as provided by Law; and for statistical and policy framing purposes.
Place: Signature or left hand thumb impression
Date: of the applicant given name of the applicant
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24. An Affidavit is also required to be filed in terms of
Form 2 of the Transgender Rules which is reproduced
hereunder for easy reference:
Form - 2
[See rules 2(b) and 4(1)]
Format of affidavit to be submitted by a person applying for
certificate of identity for transgender persons under Rule 4
of the Transgender Persons (Protection of Rights) Rules,
2020 read with Section 6 of the Transgender Persons
(Protection of Rights) Act,2019
(Affidavit should be on Non-judicial stamp paper of Rs.10/-
) Competent Notary Civil, District (Name of the District),
(Name of the State)
I, (Name), son/daughter/ward/spouse of (name of the
parent/guardian/husband), aged (in completed years),
residing at (address), (Tehsil), (District), (State) (Pin code)
do hereby
solemnly affirm and declare as under:
1. I am currently residing in the above address.
2. I perceive myself as a transgender person whose
gender does not match with the gender assigned at birth.
3. I declare myself as transgender.
4. I am executing this affidavit to be submitted to the
District Magistrate for issue of certificate of identity as
transgender person under Section 6 of the Transgender
Persons (Protection of Rights) Act, 2019 under Rule
Transgender Persons (Protection of Rights) Rules, 2020.
.* strike out whichever is not applicable.
Deponent
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(Signature of the Applicant)
Verification
I, (Name), hereby state that whatever is stated here in above
serial Nos. 1 to 4 are true to the best of my knowledge.
Deponent
(Signature of the Applicant)
Tehsil
Date
Identified by me Before Me
Advocate Notary
Public
25. On such an application in Form,-1 being filed, the
District Magistrate after considering the details,
would issue a certificate of identity as transgender
person in terms of Section 6 of the Transgender Act
as per Form 3 which is hereunder reproduced for
easy reference:
Form - 3
[See rules 2(e) and 5(1)]
Form of certificate of identity to be issued by District
Magistrate under Rule 5 Transgender Persons (Protection of
Rights) Rules, 2020 read with section 6 of the Transgender
Persons (Protection of Rights) Act, 2019
1. On the basis of the application dated dd/mm/yyyy to the
undersigned it is certified that Shri /Smt./ Km/ Ms (name)
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son / daughter / ward of Shri/ Smt. (name of the parent or
Guardian) of (complete residential address of the applicant)
is a transgender person.
2. His / her birth name is .
3. This certificate is issued in terms of the provisions
contained under Rule 5 Transgender Persons (Protection of
Rights) Rules, 2020 read with section 6 of the Transgender
Persons (Protection of Rights)Act, 2019.
4. It is also certified that Shri/Smt/Km/Ms. is ordinarily a
resident at the address given above.
5. This certificate entitles the holder to change name and
gender in all official documents of the holder.
Date.................... Signature of the District Magistrate
Place.................. Seal
26. It is this certificate of identity which can be made use
of by a transgender for the purpose of effecting such
other and further corrections in other identity
documents and/or other documents.
27. In this regard, Section 6 of the Transgender Act
provides for the recordal of the gender of the
transgender person in all official documents in
accordance with a certificate issued under sub-
section (1) of Section 6, as Per Form 3 thereof,
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pursuant to an application made in terms of Form-1
of Rule 3 of the Transgender Rules.
28. Once such a certificate is issued, Section 7 of the
Transgender Act provides for a change in gender to
be recognized by the issuance of necessary
certificates in terms of said provision. Section 7 is
reproduced for easy reference.
7. Change in gender.--(1) After the issue of a
certificate under sub-section (1) of section 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 section 6 or a revised certificate
under sub-section (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:
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Provided that such change in gender and the
issue of revised certificate under sub-section (2)
shall not affect the rights and entitlements of such
person under this Act.
29. Sub-section (2) of Section 7 provides for a certificate
to be issued which in turn would enable such a
person to seek for change in name and gender to be
effected in all identity documents. A certificate in this
regard is to be issued in terms of Form 4 of the Rules
which is as under:
Form - 4
[See rules 2(e) and 7(1)]
Form of certificate of identity for change of gender to be
issued by District Magistrate under Rule 6 of the
Transgender Persons (Protection of Rights) Rules, 2020
read with section 7 of the Transgender Persons (Protection
of Rights) Act, 2019
1. On the basis of the application submitted to the
undersigned along with a medical certificate from the
Medical Superintendent or Chief Medical Officer (name of
the Hospital and complete address), it is to certify that Shri
/ Smt./ Km/ Ms. (name) son/ daughter / ward of Shri/ Smt.
(name of the parent or Guardian) of (complete residential
address of the applicant) has undergone medical
intervention to change gender.
2. His/ Her birth name is .......
3. This certificate is issued in terms of the provisions
contained under Rule 6 of the Transgender Persons
(Protection of Rights) Rules, 2020 read with section 7 of
the Transgender Persons (Protection of Rights) Act, 2019.
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4. It is also certified that Shri / Smt/ Km/ Ms. is ordinarily a
resident at the address given above.
5. This certificate entitles the holder to change name and
gender in all official documents of the holder.
6. Such change in name and gender and the issue of this
certificate shall not adversely affect the rights and
entitlements of the holder of this certificate.
Date ................. Signature of the District Magistrate:
Place ................ Seal
30. Sub-section (3) of Section 7 provides for a change in
the first name in the birth certificate, the second
name being the parents' name, cannot be changed.
31. When, Sub-sections (2) and (3) provide for both
change in gender and change in first name, the
concomitants thereof would be, issuance of a
necessary birth certificate under the relevant
provision and in this case, Section 15 of the
Registration of Births and Deaths Act, 1969.
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32. Sub Rule (d) of Rule 2 of the Transgender Rules
which defines official documents is reproduced
hereunder for easy reference:
2. Definition.- In these rules, unless the context
otherwise requires,- (a) "Act" means the Transgender
Persons (Protection of Rights) Act, 2019 (40 of 2019);
(d) "any official documents" include all documents
listed in Annexure 1, which the appropriate Government
may revise, by notification in the Official Gazette;
33. Annexure 1 which gives a list of all official documents
is reproduced hereunder for easy reference:
Sl.No. Name of the Official Document
1 Birth Certificate
2 Caste/ Tribe Certificate
3 Any education certificate issued by a school, board,
college, university or any such academic institution
4 Election Photo Identity Card
5 Aadhar Card
6 Permanent Account Number (PAN)
7 Driving License
8 BPL ration card
9 Post office bank/Bank pass book with photo
10 Pass port
11 Kisan Pass Book
12 Marriage Certificate
13 Electricity/Water/gas connection paper
14 Property papers,
15 Vehicle registration
16 Service book, employment papers
17 Identity card related to bar,
18 Policy papers
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34. Not surprisingly the first of the documents mentioned
therein is the Birth Certificate.
35. Rule 5 of the Transgender Rules is reproduced
hereunder for easy reference:
5. Issue of certificate of identity for a transgender
person under section 6.- (1) The District Magistrate shall
issue to the applicant, a certificate of identity in Form-3
following the procedure provided in rules 4 indicating the
gender of such person.
(2) The said certificate of identity shall be issued within
thirty days of receipt of duly filled in application along with
the affidavit.
(3) The certificate of identity issued under sub-rule(1) shall
be the basis to change the gender as well as the name and
the photograph, if so necessitated, of the transgender
person in all such official documents as provided in
Annexure-1, in accordance with the gender specified in
the said certificate of identity.
(4) The District Magistrate shall, at the time of issuance of
the certificate of identity under sub-rule(1), issue a
transgender identity card in Form - 5 to the applicant.
(5) The appropriate Governments shall maintain a register
for the issuance of certificate of identity card and the
transgender identity card.
(6) The authority that issued the official document, on an
application made by an applicant under rule 3, shall change
the name or gender or photograph or any of this
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information of the applicant in the official documents within
fifteen days of making of such application.
(7) Any official document wherein gender, name and the
photograph of transgender are revised based on the said
certificate of identity, shall bear the same serial or
reference number as in the original official document of
such transgender person who seeks change in the name or
gender or both in the official documents: Provided that all
benefits that a transgender person was entitled to based on
an identity card, if any, issued by a State authority shall
continue to be enjoyed by that transgender person based
on the certificate of identity issued under these rules.
36. In terms of sub-rule (3) of Rule 5 the certificate of
identity issued under sub-rule(1) of Rule 5 shall be
the basis to change the gender as well as the name
and the photograph, if so necessitated, of the
transgender person in all such official documents as
provided in Annexure-1, in accordance with the
gender specified in the said certificate of identity,
which would include a birth Certificate.
37. Rule 7 of the Transgender Rules reads as under
7. Issue of certificate of identity under section 7- (1)
The District Magistrate shall issue a revised certificate of
identity in Form - 4 to the applicant seeking change in
gender indicating the gender of such a person as male or
female, as the case may be.
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(2) The District Magistrate shall issue the revised certificate
under sub-rule (1) within fifteen days of its receipt of the
application.
(3) The certificate of identity issued under sub-rule (1)
shall entitle the applicant to record or change the gender,
as well as photograph and name, if so necessitated of
transgender person in all such official documents provided
in Annexure - 1, in accordance with the gender specified
in the said certificate of identity as male or female, as the
case may be.
(4) The District Magistrate while issuing the certificate of
identity for change of gender shall simultaneously issue an
identity card in Form - 6 to the applicant.
(5) The authority that issued the official document, on an
application made by an applicant under sub-rule (3), shall
change the name or gender or photograph or any of this
information of the applicant in the official documents within
fifteen days of making of such application.
(6) Any official document wherein gender, name or
photograph of transgender person is revised based on the
said certificate of identity shall bear the same serial or
reference number as in the original official document of
such transgender person who seeks change in the name or
gender or both in the official documents.
38. Again in terms of sub rule (3) of Rule 7 The
certificate of identity issued under sub-rule (1) of
Rule 7 shall entitle the applicant to record or change
the gender, as well as photograph and name, if so
necessitated of transgender person in all such official
documents provided in Annexure - 1, in accordance
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with the gender specified in the said certificate of
identity as male or female, as the case may be which
would include a Birth Certificate.
39. The Transgender Act being a special enactment, the
mandate of a special Act would have to be complied
with by General Enactment like the Act of 1969.
40. In terms of the definition of 'Transgender' in Section
2 (K) of the Transgender Act and in order to give due
effect to the rights recognized under the said act and
more particularly to give effect to the right of a
Transgender Person to be recognized and identified
as such in terms of Section 4 thereof, making of an
application for issuance of certificate of identity in
terms of Section 5 thereof, issuance of certificate of
identity in terms of Section 6 thereof which in turn
recognizes the right for change of Gender in terms of
Section 7 thereof, requiring a revised certificate of
identity being issued.
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41. A birth certificate also being an official document as
per Annexure 1 to the transgender rules as defined
under sub-rule (c) of Rule 2 and listed under
Annexure 1 thereof a revised birth certificate would
have to be issued if all the requirements of the
Transgender Act are fulfilled.
42. There is an obligation in terms of Section 8 of the
Transgender Act on the government to safeguard the
interest of the Transgenders, one of the modes and
methodologies for such protection being the
implementation of the mandate of Section 4 to 7 of
the Transgenders Act, the Government would have to
carry out necessary amendments to the Act of 1969
and Rules framed thereunder to give effect to the
Trangenders Act and establish necessary procedures
required to be followed, to give effect to the purpose
and intent and mandate of the special laws, namely
the Transgender Act.
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43. In that view of the matter, the authority not having
acted on the application filed by the petitioner for the
reason that Section 15 of the Act of 1969 not
providing for the same, the said authority has acted
contrary to the rights, which have been recognized
under the Transgender Act, by negating the rights of
a Transgender recognized under the Transgender
Act.
44. No particular fault can be found with the authorities
under the Act of 1969 since they are required to act
in terms of the statute and they themselves cannot
read anything more into the Act. The lacunae was
however required to be brought to the notice of the
state.
45. The above facts and circumstances require this
Court's intervention. Since there is no procedure now
in force providing for the correction in the birth
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certificate on account of change in gender, until
suitable amendments are made to the Act of 1969
and the rules framed thereunder it is declared that it
shall be the duty of the Registrar of Births and
Deaths to give effect to any certificate issued under
Section 6 or 7 of the Transgender Persons(Protection
of Rights) Act, 2019 by the issuance of necessary
amended/corrected Birth or Death Certificate in
terms of the Certificate issued under Section 6 or 7
of the Transgender Act by effecting necessary
change in the name and gender of such transperson.
46. In the above circumstances, I pass the following
ORDER
i. Until suitable amendments are made to the Act
of 1969 and the rules framed thereunder it shall
be the duty of the Registrar of Births and Deaths
to give effect to any certificate issued under
Section 6 or 7 of the Transgender
Persons(Protection of Rights) Act, 2019 by
accepting and processing an application filed by
a transgender, if accompanied by certificate
under section 6 or 7 of the Transgender Act and
make such entries in the Register of Births and
Deaths and issue necessary birth or Death
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certificate with modification made, indicating
both the earlier name and the present name with
the details of the certificate under Section 6 or 7
being incorporated in the said certificate.
ii. Respondent No.2 is directed to process the
application of the petitioner in terms of the
above within a period of four weeks from now
and issue the same.
iii. The Law Commission, Government of Karnataka
is requested to look into the Transgender Act and
suggest appropriate amendments to the Act of
1969 and the Rules framed thereunder so as to
give effect to the Transgender Act in its true
letter and spirit, at the earliest. Registrar
(Judicial) is directed to forward this order to the
Hon’ble Chairperson of the Law Commission of
Karnataka.
Sd/-
(SURAJ GOVINDARAJ)
JUDGE
LN
List No.: 1 Sl No.: 43