Important Judgment Pronounced Today on Determination of Sex of a Transgender (14th May, 2019)

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Title of the Case – Determination Sex of a Transgender

Name of the caseState of Uttarakhand V. Mr. P.S. Bohara, W.P. (Cr) No. 26 of 2019

Date of Judgment 14 May, 2019

Judges: Justice Ravinndra Maithani

Subject and sections involved Article 14 and 21 of the Constitution of India

 

Issue:

  1. Can an investigation officer, by conducting DNA tests, determine the sex of a transgender person who underwent reassignment surgery and refuse to accept the changed gender?

Fact of the Case:

an F.I.R was filed by the petitioner, which was registered as F.I.R No. 311 of 2018 under Section 377 and 385 I.P.C. The petitioner claims that she has identified herself as “she” and she should be treated as such. In view of the judgment passed by Hon’ble Supreme Court, in the case of National Legal Services Authority Vs. Union of India, (2014) 5 SCC 438.

In a nutshell, what has been argued by the State is that petitioner is not “she” but is “he”, based on her biological sex. What is important to notice is that a report of Investigating Officer dated

02.04.2019, filed in the Court reveals that the Investigating Officer started reading the DNA of the petitioner and biologically declared on her own that the petitioner is not “she” but is “he”. Though, the report also records that the petitioner has conducted reassignment surgery and has also obtained a certificate that she may be addressed as “she”.


 

Ratio of the case -

Determination of Sex of a Transgender

The aspect of “biological test” and “psychological test” could not be noticed by the State. Perhaps State did not consider that the Hon’ble Supreme Court in the case of National Legal Services Authority (supra) did not accept the Corbett principle of determining sex because the senior public servant leaves it to the wisdom of Investigating Officer to determine sex of the petitioner. It may be noted here that in the case of National Legal Services Authority (supra) this right has been given to the petitioner in view of Para No. 135.2 of the judgment which is as hereunder:-

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.” (emphasis supplied)