S.S.J.

UNIVERSITY MOOT
MEMORIAL, 2021 ARZOO KHAN LL.B 6TH SEMESTER
180115390002

GAURAV KUMAR LL.B 6TH SEMESTER

180115390054

S.S.J. UNIVERSITY MOOT COURT, 2021

MAY 2021

ON SUBMISSION TO THE HON’BLE HIGH COURT OF

UTTARAKHAND, INDIA

CIVIL JURISDICTION

WRIT PETITION

(UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA)

WRIT PETITION (CIVIL) NO. OF 2021

[Arising out of the impugned matter dated Case no…….. /2021]

In the matter of:

ANIRUDH @ ANUBHAVA ........................... (PETITIONER)

Vs.
STATE OF UTTARAKHAND AND ORS. ................................ (RESPONDENT)

MEMORIAL IN THE CAPTIONED MATTER

(On behalf of the Respondent)

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TABLE OF CONTENTS

1. Table of Contents ............................................. (2)

2. Index of Authority ........................................... (3)

3. Statement of Jurisdiction ............................... (4,5)

4. Statement of Facts… ........................................ (6,7)

5. Questions of Law ................................................ (8)

6. Summary of Arguments… ............................. (9,11)

7. Arguments Advance ....................................... (12,26)

8. Pray ......................................................................(27)

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INDEX OF AUTHORITIES:

TABLE OF CASES:

Title of the case Page

No.
KABEER C ALIAS ANEERA KABEER VS. STATE OF KERALA. 8
10
JUNE 2020 BY Indiankanoon.com
JAGMOHAN VS. STATE OF UP (SUPRA) 3/10/1972
12

C.E.S.E., LIMITED VS. SUBHASH CHANDRA BOSE 15/11/1991

15

HUMSAFAR TRUST
20

X VS. STATE OF UTTRAKHAND AND ORS. W.P. NO. 28 OF 2019

21

ARUN KUMAR VS. THE INSPECTOR GENERAL OF MADRAS

22/4/2019 24

ORDER: DCPCR/2021/HEALTH AND NUTRITION/ PTOJECT- FILE-

VIL1\\39912
25

BOOKS:

M.P. Jain (seventh edition), Indian constitutional Law (LexisNexis, Gurgaon, 2014).
Indian penal code, 1860, The Gazette of India: Transgender protection Act,n2019.

ARTICLES:

The Hindu, Times of India.

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STATEMENT OF JURISDICTION

MOST RESPECTFULLY SHOWETH:

That the instant Writ Petition has been filed under the extra-ordinary jurisdiction of this
Hon‟ble Court given under Article 226 of the Constitution of India. Writ petition to
appeal by the High Court of Uttarakhand under Article 226 in The Constitution Of
India 1949.

(1) Notwithstanding anything in Article 32 every High Court shall have powers,
throughout the territories in relation to which it exercise jurisdiction, to issue to any
person or authority, including in appropriate cases, any Government, within those
territories directions, orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibitions, quo warranto and certiorari, or any of them, for the
enforcement of any of the rights conferred by Part III and for any other purpose

(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any
Government, authority or person may also be exercised by any High Court exercising
jurisdiction in relation to the territories within which the cause of action, wholly or in
part, arises for the exercise of such power, notwithstanding that the seat of such
Government or authority or the residence of such person is not within those territories

(3) Where any party against whom an interim order, whether by way of injunction or stay
or in any other manner, is made on, or in any proceedings relating to, a petition under
clause (1), without-

(a) furnishing to such party copies of such petition and all documents in support of the
plea for such interim order; and
(b) giving such party an opportunity of being heard,

makes an application to the High Court for the vacation of such order and furnishes a
copy of such application to the party in whose favour such order has been made or the
counsel of such party, the High Court shall dispose of the application within a period
of two weeks from the date on which it is received or from the date on which the copy
of such application is so furnished, whichever is later, or where the High Court is
closed on the last day of that period, before the

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expiry of the next day afterwards on which the High Court is open; and if the
application is not so disposed of, the interim order shall, on the expiry of that period, or,
as the case may be, the expiry of the aid next day, stand vacated

(4) The power conferred on a High Court by this article shall not be in derogation of the
power conferred on the Supreme court by clause ( 2 ) of Articl.

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STATEMENT OF FACTS:

1. That Ajayveer and Suman had a son whom they named Anirudh. As Anirudh
grew into adolescence, his demeanor and behavior showed an inclination
towards feminine qualities rather than masculinity.

2. That As he entered the age of 14th, he became severely depressed due to his social
exclusion by all acquaintances, especially neighboring boys of his age, and his
classmates. This caused great grief to the parents who had accepted the child in the
same way, but the Bizarre from others were helpless before the treatment.

3. That One day Anirudh changes him into a girl for a medical change with the
parents as he always felt like a girl trapped in his male body. After consulting
well-known psychologists and medical professionals, the parents decided to
transform themselves medically into a woman.

4. That The parents named the daughter "Anubha" accept Anirudh's wish. One
fine morning Anirudh was initially all right but the various officials refused to
amend Anurabha's record by changing Anirudh's identity. He refused to issue the
revised date of birth certificate for Anubha.

5. That Anirudh's school decided to cancel the admission of the child instead of
changing the record. In Anubha's case the parents' application for a government
scholarship available to each girl child, was rejected.

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6. That The parents have filed a petition in the Uttarakhand High Court
challenging these actions of the government school, date of birth issuing
authority and women's welfare department alleging discrimination against the
child on the basis of gender only.

7. That The government is prepared to contest the case as it considers artificial

gender change to be completely illegal and contrary to public interest and
social morality.

8. That this Hon‟ble Court has directed all the parties to frame substantial
questions for its considerations including preliminary issues relating to
jurisdiction and the arguments thereon, along with summary of arguments on
each question of law. Hence in compliance of the said directive of this Hon‟ble
Court, the substantial question law, summary of arguments and details of
arguments are provided in this instant memorial.

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QUESTIONS OF LAW
ISSUES:
1. WHETHER the Writ petition is maintainable in this Hon‟ble Court!? And the
parents of the petitioner have found any alternative procedure rather than opting
for surgery procedure and made appropriate scrutiny on the medical grounds
and its irretrievable nature and consequences and the minor child surgery is
legal in India?

2. WHETHER the parents of the petitioners made any computation in regards to the
health problems which may be faced by the petitioner after the surgery which
could be distressing in terms of both physical and mental health of the
petitioner?

3. WHETHER the parents of the petitioner made any computation taking into
account the religious beliefs and outlook of the Indian society towards
transgender since the petitioner is a minor and only 14 years of age and the
parents of the petitioner are in the capacity to take decision of the minor child
thinking what is good and what is bad for the child?

4. WHETHER the petition filed by the petitioner is raising grounds is within the
provisions of the Transgender Persons (Protection of Rights) Act, 2019?

5. WHETHER the Government challenging the case because it considers the

artificial gender change to be contrary to public interest and social morality
besides being completely illegal?

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SUMMARY OF ARGUMENTS

OPENING ARGUMENTS:

It is well said that:-

“Nothing is harsher than pretending to be the person you are
not”
And..
“The natural identity of an individual should be treated to be absolutely essential to his
being. What nature gives is natural. That is
called nature within”

And..

“You know, in our society, anybody feminine is considered a sex-

object”

(A) BECAUSE the present petition is liable to be dismissed as petitioner has failed
to set up any ground for entitlement of relief under Article 226 of the Constitution
of India. And the writ petition is not maintainable in the Hon‟ble Court.

(B) BECAUSE In the present case there has been no violation of the fundamental
rights since, because the action taken by the state was in furtherance of the
principle of state policy and social justice and thus cannot be termed as arbitrary
or as one which was without the application of the mind. Hence, the writ petition
is not maintainable.

(C) The petition has been filed without considering the negative attitudes toward
transgender people (i.e., transprejudice) are prevalent in Indian societies and can
lead to discrimination and harassment.
(D) BECAUSE the petitioner has not approached to the right authority in
accordance to the section 5 of The Transgender Persons (Protection of Rights)
Act, 2019 for getting the certificate, thus it‟s a violation of the procedure
prescribed under the Act.

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That Hon‟ble Kerala High Court in case titled as “KABEER C ALIAS ANEERA
KABEER VS STATE OF KERALA” on 8 June, 2020
held as under:-

“We are also of the view that the issue with respect to the issuance of identity card
and ration card can only be done by the authorities only on the members of the
community approaching the authorities concerned, for the issuance of the same.”

(E) BECAUSE transgender individuals also face disproportionate public violence

and police brutalities, therefore parents of the petitioner have not considered what
petitioner may face in future.

(F) BECAUSE that the parents of the petitioner erred in realizing the fact that the
transgender people face widespread stigma and discrimination across a variety
of domains, including employment, housing, healthcare, and the legal system.

(G) BECAUSE the fundamental rights are not absolute and the same would run foul to
all religions practiced in the country, and, while deciding the ambit and scope of
constitutional morality, Article 25 also deserves to be given dueconsideration.

(H) BECAUSE the parents of the petitioner failed to consider the fact that the
transgender and gender nonconforming people may experience harassment or
discrimination from people who are scared or uncomfortable with these
identities.

(I) BECAUSE the parents of the petitioner erred in considering the facts that the
offering sex-changing treatment to kids younger than 18 raises ethical concerns.

(J) BECAUSE the transgender women can never become mothers biologically thus
can never have a family of their own therefore the petitioner will can never enjoy
the life at fullest.

(K) BECAUSE the transgender are still considered as backward class in the Indian
society and harsh reality is that the transgender are still begging at traffic red lights
and there is still no improvement in education even after the enactment of the
Transgender

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Persons (Protection of Rights) Act, 2019. The means of employment are still not
available for them. Transgender have to earn their livelihood by singing and
dancing. Transgender still have to approach the courts, again and again, to fight
for their honor and opportunity and the parents of the petitioner failed to consider
the same before opting for the surgery of the petitioner and what kind of future
they are offering to their child.
(L) BECAUSE the Petitioner exhausted right to self-perceived gender identity by
choosing the same as "Female" and seeking the admission under the Transgender
category (Female). Hence, she now falls under the third gender category
"transgender (Female)" and not the 'female' sex category, now being claimed by
her.

(M) BECAUSE in the present Indian society there is requirement for more detailed
categorization of transgender based on their biological features and sexual
orientation to assign them male or female gender identity and a need to formulate
detailed guidelines on medical and psychological aspects on assigning
W.P.(C).No.23404/2020 gender identity to transgender for induction into gender
specific organizations.

(N) BECAUSE the parents of the petitioner failed to consider the fact that the
transgender individuals in India often face stigma and systematic exclusion in
education and employment. As a result, some feel they have no alternative but
to turn to sex work. HIV prevalence among India's transgender community is 26
times higher than the national rate.

(O) BECAUSE the Hon‟ble Supreme Court in the case titled as “JAGMOHAN
SINGH V. STATE OF U.P” decided by the bench of five judges on 03.10.1972
held as under:-
“We have grave doubts about the expediency of transplanting Western experience in our
country. Social conditions are different and so also the general intellectual level”
Therefore there should not be identical transplantation of Western ideology in
our country which has also been a matter of concern which has been raised in
case titled as “JAGMOHAN SINGH V. STATE OF U.P.(Supra)”.

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(O) BECAUSE the Sex reassignment surgery of a minor child is totally illegal
and there is lots of side effects after that surgery. The Government challenging
the case it consider the artificial gender change to be to public interest and social
morality besides being completely illegal.

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ARGUMENTS ADVANCED:-

ISSUE NO 1.

WHETHER THE WRIT PETITION IS MAINTAINABLE IN THIS

HON’BLE COURT? AND THE PARENTS OF THE PETITIONER HAVE
FOUND ANY ALTERNATIVE PROCEDURE RATHER THAN OPTING
FOR SURGERY PROCEDURE AND MADE APPROPRIATE SCRUTINY
ON THE MEDICAL GROUNDS AND ITS IRRETRIEVABLE NATURE
AND CONSEQUENCES AND THE MINOR CHILD SURGERY IS LEGAL
IN INDIA?

MEDICAL GROUNDS

(A) BECAUSE it's harmful to have an irreversible treatment too early at the age of 14
years as per the guidelines from the Endocrine Society endorse transgender
hormone treatment.
(B) BECAUSE there are potential irreversible side effects of sex change operation
since most of the complications relating to this surgery are more psychological
and hormonal, than physical. Undergoing sex change surgery is easy. But to
completely fit into the role of a different gender takes a longer span of time,
generally, a few years and the same need to be considered which was not done in
the present case.

(C) BECAUSE there is a need to undergo therapy before and after the surgery to help
someone change the sex mentally, moreover the surgery changes the genitalia.
However, the hormones that determine secondary sexual characteristics such as
voice and hair growth are not affected by the surgery. Some of the side effects
are as follows:-
(i) The person undergoing the sex reassignment surgery male to female or vice versa will not
be able to reproduce.
(ii) More Invasive, more chance of postoperative complication, longer recovery time.
(iii) Less number of surgeons trained in this method.
(iv) No sensation inside the vagina
(v) A huge scar on the lower abdomen, transverse/horizontal, about 20 Centimeters in length.

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(vi) The treatment requires to follow a series of dietary and lifestyle precautions for at least 4 to
6 weeks.

(D) BECAUSE the medical evidence suggests that sex reassignment does not
adequately address the psychosocial difficulties faced by people who identify as
transgender. Even when the procedures are successful technically and
cosmetically, and even in cultures that are relatively “trans-friendly,”
transitioners still face poor outcomes.

(E) BECAUSE the reality of sex change is physically impossible, it frequently does
not provide the long-term wholeness and happiness that people seek.

(F) BECAUSE SRS procedures create life-changing alterations to the body and are not
reversible. This is why exploring alternative options is useful before making the
decision to undergo SRS surgery.

(G) BECAUSE based on the research and studies conducted

alternatives of surgery could have been adopted for the petitioner which is more
beneficial mentally and physically, however the same was not adopted
and the surgery was done in hasty manner without considering
the consequences of the surgery. Some of the alternatives are as follows:-

(i) Hormone therapy, which can cause significant physiological changes.

(ii) Psychological counseling to learn how to handle gender-related distress or
dissatisfaction.
(iii) Practical training to learn new skills for functioning in a changed social
environment.
(iv) Altering hair, makeup and clothing to conform to the chosen gender identity, either
on a part- or full-time basis.
(v) Removal of facial and body hair.
(vi) Alteration of voice through training or surgery.
(vii) Weight loss, weight gain and/or exercise to build muscle mass to alter body shape.

(H) BECAUSE alternative treatments and procedures can be very effective in

relieving the distress experienced by many transgender and gender non-
conforming people, and most

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treatments can be readily reversed if they don‟t achieve the desired results and
the same was neglected which may cause irreversible pain and mental distress
for the petitioner.

ISSUE NO.2:-

WHETHER THE PARENTS OF THE PETITIONERS MADE ANY

COMPUTATION IN REGARDS TO THE HEALTH PROBLEMS WHICH
MAY BE FACED BY THE PETITIONER AFTER THE SURGERY WHICH
COULD BE DISTRESSING IN TERMS OF BOTH PHYSICAL AND
MENTAL HEALTH OF THE PETITIONER?

HEALTH GROUNDS

(A) BECAUSE the World Health Organization (“WHO”) defined the term ‘health’
broadly to mean “a state of complete physical, mental and social well-being and
not merely the absence of disease or infirmity”

(B) BECAUSE the Hon‟ble Supreme Court in regards to the health of person in the
case titled as “C.E.S.C. LIMITED V. SUBHASH CHANDRA BOSE” decided on
15.11.1991 held as under:-
“Health is thus a state of complete physical, mental and social well- being and not merely
the absence of disease or infirmity”

(C) BECAUSE a study was conducted that looked at discrimination faced by

transgender people in hospitals in terms of treatment and medical aid. A
consistent complaint of the community is that doctors and nurses schedule their
check-ups for odd hours and tired of the ridicule and humiliation, some
transgender activists have demanded separate wards in hospitals and the
petitioner may face the same therefore will not receive appropriate medical
treatment in future causing mental and physical trauma.

(D) BECAUSE a paper on transgender health in India and Pakistan published in The
Lancet journal says that while the transgender community may have received
legal recognition, their access to quality healthcare remains alarmingly scarce.
And there are hardly any anti-discrimination laws in place to safeguard equality in
healthcare access.

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(E) BECAUSE Transgender people are unable to "exercise their democratic rights
in marriage, adopting/raising children and utilizing financial support system
such as free and subsidized health care, surgeries and medical treatments.

(F) BECAUSE The Guardian summarized the results of a review of “more than 100
follow-up studies of post-operative transsexuals” by Birmingham University‟s
Aggressive Research Intelligence Facility which conducts reviews of health care
treatments concludes that none of the studies provides conclusive evidence that
gender reassignment is beneficial for patients. It found that most research was
poorly designed, which skewed the results in favor of physically changing sex.
There was no evaluation of whether other treatments, such as long-term
counseling, might help transsexuals, or whether their gender confusion might
lessen over time.

(G) BECAUSE based on a thorough review of the clinical evidence available there
is not enough evidence to determine whether gender reassignment surgery
improves health outcomes for Medicare beneficiaries with gender dysphoria.

ISSUE NO.3:-

WHETHER THE PARENTS OF THE PETITIONER MADE ANY

COMPUTATION TAKING INTO ACCOUNT THE RELIGIOUS BELIEFS
AND OUTLOOK OF THE INDIAN SOCIETY TOWARDS TRANSGENDER
SINCE THE PETITIONER IS A MINOR AND ONLY 14 YEARS OF AGE
AND THE PARENTS OF THE PETITIONER ARE IN THE CAPACITY TO
TAKE DECISION OF THE MINOR CHILD THINKING WHAT IS GOOD
AND WHAT IS BAD FOR THE CHILD?

RELIGIOUS GROUNDS

(A) BECAUSE the relationship between transgender people and religion varies
widely around the world. Religions range from condemning any gender variance
to honoring transgender people as religious leaders.

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(B) BECAUSE across studies, consistent evidence was found indicating that
religious identification is associated with more negative attitudes toward
transgender people and higher levels of
TRANSPHOBIA.

(C) BECAUSE Transphobia is the fear, hatred, disbelief, or mistrust of people who
are transgender, thought to be transgender, or whose gender expression doesn‟t
conform to traditional gender roles. Transphobia can prevent transgender and
gender nonconforming people from living full lives free from harm and the
petitioner will face the same in the coming future.

(D) BECAUSE Transphobia can take many different forms, including negative
attitudes and beliefs, aversion to and prejudice against transgender people,
irrational fear and misunderstanding, disbelief or discounting preferred
pronouns or gender identity, derogatory language and name-calling and
bullying, abuse, and even violence.

(E) BECAUSE many religions are based on teachings of peace, love, and tolerance
and thus, at least based on those specific teachings, these religions promote
intergroup pro-sociality. However, evidence from studies of religion and social
attitudes have paradoxically revealed that religion is typically a predictor of
intergroup anti-sociality, or in other words religion tends to predict most forms
of prejudice more negative attitudes towards transgender people than non-
religious individuals.

(F) BECAUSE religious differences also extend to questions about societal

acceptance of transgender people. Most white evangelical Protestants say society
has “gone too far” when it comes to accepting people who are transgender.

(G) BECAUSE Hindu philosophy has the concept of a third sex or third gender
(tritiya-prakriti – literally, "third nature"). The people in this category of
sex/gender are called Hijras in Hinduism. This category includes a wide range
of people with mixed natures of gender and sex, such as homosexuals,
transsexuals, bisexuals, the intersex, and so on. Such persons

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were not considered fully male or female in traditional Hinduism, being a

combination of both. They are mentioned as third sex by nature (birth) and were
not expected to behave like ordinary men and women. Hijras identify themselves
as incomplete men, that they do not have the desires (for women) that other men do.
Their participation in religious ceremonies, especially as cross-dressing dancers.

(H) BECAUSE in Islamic literature, the word mukhannathun is used to describe

"effeminate men". The term has sometimes been equated to transgender women,
gay men, members of a third gender, or intersex individuals, though it does not
neatly fit into any of those categories. The treatment of mukhannathun varied
throughout early Islamic history, and the meaning of the term took on new
dimensions over time. In some eras, men deemed mukhannathun were
persecuted and castrated. Transgender Muslims may encounter multiple forms of
minority stress as a religious minority, gender minority and often as immigrant
and ethnic minorities as well. Etengoff & Rodriguez (2020) conducted an
explanatory study with 15 transgender Muslims and found that although 14 of the
15 participants spoke of coming-out challenges, the average depression scores for
the sample were moderate and self-esteem scores were within the normal range
and this research offers an applied intersectional, positive growth framework for
the study of transgender individuals‟ gender and Muslim identity experiences.

(I) BECAUSE most Christians in the say that whether someone is a man or a
woman is determined by their sex at birth thus transgender faces social and
religious violence.

(J) BECAUSE it is sanctioned as a supposed "cure" for homosexuality, which is

punishable by death under Iranian law.

INDIAN SOCIETY

(A) BECAUSE in Indian society mostly who are ignorant and insensitive often use
Hijra as a derogatory term to mock and abuse effeminate boys and transgender
individuals and the

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petitioner will face the same kind derogatory remarks in near future.

(B) BECAUSE in the Indian society being the parent of a transgender child is shameful
as this is one of the most common prejudices present in society because of
which people disown their own children to suffer alone in this world.

(C) BECAUSE Transphobia is a form of oppression and discrimination against

those who identify as transgender and which is very much prevailing in the
Indian society.

(D) BECAUSE negative attitudes toward transgender individuals are prevalent in

Indian societies, with research indicating that a range of demographic factors,
ideological values, and belief systems predict anti-transgender attitudes and
behaviors.
(E) BECAUSE transgender people have been treated as outcasts within Indian
society and thus have been "deprived of social and cultural participation for
nearly two centuries." even after the passing of the act they have limited access
to education, health care and public facilities and are treated as nonentities legally.

(F) BECAUSE as far as equal rights of Transgender are concerned, there is no such
mention in Modern Indian history even after the passing of the act, transgender
society still have to face discrimination and there is no significant improvement
in the condition and working situation of Transgender.

(G) BECAUSE the transgender community in India mostly begs at traffic signals,
lives in poverty, and serving others tirelessly. They have to leave their families for
the security and safety of the homes due to insecurities from the Indian society and
mentality.

(H) BECAUSE Transgender persons face various forms of gendered violence,

harassment and discrimination both at home and in public spaces. A study by
Humsafar Trust titled, “Situation and Needs Assessment of Transgender People in
Three Major Cities in India” carried out in Delhi, Mumbai, and Bangalore, over
the period between June 2017 and March 2018, found that around 59 percent
of the transgender community had experienced

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violence, 57 percent in Delhi, 55 percent in Mumbai, and 70 percent in

Bangalore.

(I) BECAUSE Lesbian, gay, bisexual and transgender (LGBT) people generally see
less social acceptance in the country, according to a many researches.

(J) BECAUSE wide number of transgenders even after the passing and the Act and
guidelines made by the Hon’ble Supreme Court are living below the poverty line
and facing discrimination and engaged in the occupation of begging moreover
the entire community is forced into sex work. The one reason for being forced
into sex work is because unavailability of livelihood resources. The job sector is
not ready to employ them even if they are qualified, because of the stigma
attached with them. As a result of this they are pushed to lead their life in
poverty or end up taking refuge in beggary and sex work, therefore life of
transgender is not easy as it mentioned on papers and books, our Indian society
still don‟t accept them.

ISSUE NO.4:-

WHETHER THE PETITION FILED BY THE PETITIONER IS RAISING

GROUNDS IS WITHIN THE PROVISIONS OF THE TRANSGENDER
PERSONS (PROTECTION OF RIGHTS) ACT, 2019?

THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT,

2019

(A) BECAUSE according to the section 5 of the said Act, a transgender person must
apply to the District Magistrate for a certificate of identity indicating their gender
as “transgender”. If a transgender person undergoes surgery to change their
gender either as a male or female, a revised certificate may be obtained. At this
point, the District Magistrate will examine the “correctness” of the medical
certificate issued by a Medical Superintendent or Chief Medical Officer however
the petitioner didn’t approached to the concerned authority for the getting the
certificate, however in the present case the same has not been

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followed by the petitioner, therefore the petitioner can’t be

granted reliefunder the provisions of the act.

(B) BECAUSE after the enactment of the Act, the same was became the subject of
protest as the said act till requirement some amendments since the Act prohibits
discrimination, it does not explicitly include a definition of discrimination that
covers the range of violations that transgender persons face, and the same was
not considered by the parents of the petitioner and surgical operation was done
without thinking about the future of the petitioner.

(C) BECAUSE the Act still fails to extend protection to transgender persons who
might face sexual abuse because the Indian Penal Code recognizes rape in strict
terms of men being perpetrators and women being victims as TRANSGENDER
RAPE CASE IN UTTRAKHAND X v. State of Uttarakhand and Ors. W.P. no.
28 of 2019.

(D) BECAUSE the Act makes “sexual abuse” punishable, with imprisonment of
only up to two years, it does not define the acts that constitute sexual offences,
making it complicated for transgender persons to report such crimes. By failing to
plug the gap in the judicial protection of transgender persons who are victims of
sexual abuse, the Act legally sanctions discriminatory behavior and denies equal
protection in law, hence the it will not easy for the petitioner in coming future to
get equal protection in law and may face discrimination.

(E) BECAUSE major flaw of the act is that it does not provide for reservation in
education and employment for transgender persons and same was neglected
without considering the future of the petitioner.

(F) BECAUSE even after passing of The Transgender Persons (Protection of Rights)
Act, 2019, Transgender people in India have been protesting against a new law that
claims to protect their rights while taking away their fundamental right of equal

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citizenship under the constitution and the petitioner will also become the victim
of it.

(G) BECAUSE the act does away with some controversial provisions that existed in
the Act, including criminalization of begging, severe criticism abounds because
it does not give transgender people the right to self-identify their gender without
having had sex reassignment surgery, therefore the act required amendment first.

(H) BECAUSE the provision for punishment for serious crimes committed against
transgender people is substantially less severe than for the same crimes committed
against cis-gender people. The Act also denies reservation to transgender,
intersex and gender non-conforming people, and requires them to be living with
their birth families which are the site of physical and psychological violence in
most cases.
BECAUSE with the Transgender Act, there is no provision that what would be
the punishment given to a criminal if a transgender person identifying as a
woman is raped therefore there is fear of justice and protection for the
petitioner.

ISSUE NO.5:-
WHETHER THE GOVERNMENT CHALLENGING THE CASE BECAUSE IT
CONSIDERS THE ARTIFICIAL GENDER CHANGE TO BE CONTRARY TO
PUBLIC INTEREST AND SOCIAL MORALITY BESIDES BEING
COMPLETELY ILLEGAL?

(A) BECAUSE It is consider that the artificial gender change of a minor child is
contrary to public interest and social morality besides being completely illegal.

(B) BECAUSE The State Government of Tamil Nadu state government has issued
an executive order banning medically unnecessary surgeries on children born
with intersex variations and stated as under:-
“Intersex,” sometimes called “differences of sex development” in medical literature,
refers to the estimated 1.7 percent of people born with sex characteristics – such as
chromosomes, gonads, or

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genitals – that differ from social expectations of female or male. Except in very rare
cases when the child cannot urinate or internal organs are exposed, these variations
are medically benign natural variations of human anatomy, and do not require
surgery.
But in the 1960s, surgeons in the United States popularized “normalizing”
cosmetic operations on intersex children, such as procedures to reduce the size of
the clitoris. These types of surgeries have since become common globally.
United Nations human rights treaty bodies have condemned the operations 40
times since 2011.
(C) BECAUSE the Tamil Nadu Government order comes in response to an Apex
court judgment prohibiting “normalizing” surgeries until the patient is old
enough to consent. For decades, intersex advocates around the world have asked
governments and the medical community to develop standards to defer surgical
procedures until the patient can consent. But medical organizations have largely
been unwilling to engage on the issue.

(D) BECAUSE In Tamil Nadu, the Indian Association of Pediatric Surgeons said
the government must exclude intersex-related surgeries from the ban –
effectively opposing the ban, which the government has so far ignored. While
the order is promising, there‟s still a long way to go to ensure the rights of
intersex people.

(E) BECAUSE the order bans genital surgeries except in “life- threatening
situations,” and warns against surgeons deliberately misinterpreting that clause to
continue performing medically unnecessary operations. A committee will be
created to define this threshold.

(F) BECAUSE two seats on the committee are reserved for doctors, while one is for
a “social worker/psychology worker/intersex activist,” and the other for a
government representative. Given

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the lack of a guarantee that an intersex person will be present, the committee
should avoid falling into the trap of ignoring intersex voices in favor of medical
authority.

(G) BECAUSE Tamil Nadu has stepped out as a leader in respecting informed
consent rights of intersex people. Their next steps should create a policy based
on medical evidence and human rights.

(H) BECAUSE In a major decision propelled by a Madras High Court order, the State
government has banned performance of sex reassignment surgeries on intersex
infants and children, except to overcome life-threatening situations. The decision
has come as a shot in the arm for intersex activists who had been pleading with
the Central and State governments for long against imposition of the parents‟
will on innocent children and infants.

(I) BECAUSE The directive issued by Justice G.R. Swaminathan on April 22, the
Health and Family Welfare Department issued a Government Order instructing
the Director of Medical Education to ensure that the exception provided to overcome
life-threatening situations does not get misused and thereby affect the
implementation of the ban being imposed after due consultation with experts on
the subject.

(J) BECAUSE The G.O. requires the DME to constitute a four- member committee
consisting of a paediatric surgeon/urologist, endocrinologist, social
worker/psychology worker/intersex activist and a government representative not
below the rank of undersecretary to assess individual cases and come to a
conclusion as to whether they fall under the ambit of a life- threatening situation
requiring compulsory sex reassignment surgery.

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(K) BECAUSE it also recognised that a major concern for intersex people was that
so-called sex normalising procedures such as surgeries and hormonal
interventions were often performed during their infancy or childhood to make
them conform to gendered physical norms. As a result, children are subjected to
medically unnecessary and often irreversible interventions that may have
lifelong consequences on their physical and mental health.

(L) BECAUSE, Justice Swaminathan had pointed out that a World Health
Organization report titled „Sexual Health, Human Rights and the Law‟ called for
deferment of intersex genital mutilation until the intersex persons were old
enough to make decisions for themselves. He had made the observations in his
much- celebrated decision upholding the legality of a marriage between a Hindu man
and a transwoman professing the same faith. He had also said that the consent of
the parent for sex reassignment surgery could not be considered as the consent
of the child and referred to a judgment delivered by Justice K. Chandru (since
retired), wherein it was observed that “neither the father nor the mother can claim
suzerainty over the child and, in the ultimate analysis, the children are not the
children of their parents.”

(M) BECAUSE In the same judgment, Justice Swaminathan had also stressed upon
the need for the government to launch a sustained awareness campaign to
encourage parents to feel that birth of an intersex child was not a matter of
embarrassment or shame. “Any intersex child is entitled to and must stay within
the folds of its family. The running away from the family to the margins and
beyond is a fatal journey that must be arrested”. he said.

(N) BECAUSE In the ORDER bearing No.F/DCPCR/20-21/Health &

Nutrition/Project File-Vil1//39912 Dated43/1 /2021 The Department of
Social Welfare, Govt. of NCT of Delhi's has made an representative on-record
commitment to constitute a

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Dedicated. Committee to look into the matter which would submit bi-monthly
progress reports and file their final submissions within 3 months. The
Commission advises the respective departments to include within the
Committee people who are intersex, or from a similar marginalized background
to be a formal member of the Committee. This step would ensure that the
community is adequately represented, and their voices heard in the decision-
making process. After careful deliberations, the Commission is of the considered
opinion that the Government of Delhi should declare a ban on medically
unnecessary, sex- selective surgeries on intersex infants and children except in
cases of life-threatening situations and advises the government accordingly.

CONCLUSION:-

Therefore in conclusion we can say that while considering the discussion

which is made above and in the light of the judgments cited in the present case
thus we can say that in the present matter has not approached to the right
authority in accordance to the section 5 of The Transgender Persons (Protection
of Rights) Act, 2019 for getting the certificate, which is indeed is the violation
of the procedure prescribed under the Act further there is no violation of the any
rights of the petitioner since fundamental rights are not absolute and the same
would run foul to all religions practiced in our country, and, while deciding the
ambit and scope of constitutional morality, Article 25 also deserves to be given
due consideration and the most important and considering point is that
according to the section 5 of the said Transgender Act, a transgender person
must apply to the District Magistrate for a certificate of identity indicating their
gender as “transgender”. If a transgender person undergoes surgery to change
their gender either as a male or female, a revised certificate may be obtained. At
this point, the District Magistrate will examine the “correctness” of the medical
certificate issued by a Medical Superintendent or Chief Medical Officer
however the petitioner didn’t approached to the concerned authority for the
getting the certificate, however in the present case the same has not been
complied .

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PRAYER

Therefore, it is most respectfully prayed before this Hon’ble Court may please
dismiss the writ petition with exemplary costs against the Petitioner in the light of
detailed facts and circumstances narrated more over the Respondent not violated
the fundamental Rights of LGBT community and pass any other order/s as this
courts may deems fits in facts and circumstances of the case and in the interest of
Justice.

DATE:

Through Counsels
MISS. ARZOO KHAN
MR. GAURAV KUMAR

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