HC directs state to instruct educational institutes to allow retrospective name, gender change

MUMBAI: The Bombay high court has directed the state government to instruct all educational institutes to permit retrospective changes of name and gender for transgender persons in their records

MUMBAI: The Bombay high court has directed the state government to instruct all educational institutes to permit retrospective changes of name and gender for transgender persons in their records.

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The HC passed the order on a petition filed by a transgender person, who wanted to pursue a degree in law but was asked to furnish a long list of documents by the educational institution.

As all previous official education records were in their original name and gender, the petitioner sought intervention of the HC and a direction to the Tata Institute of Social Sciences (TISS), where they previously studied, to change the name and gender in documents to the current identity and reissue the same.

The division bench of justice Gautam Patel and justice Neela Gokhale while hearing the petition of the transgender person, who was born a female and completed schooling, graduation and post-graduation with the same identity, was informed that the petitioner decided to change their identity in 2015. The petitioner had then got their name and gender change confirmed through a gazette notification in 2019.

The bench was informed by advocate Rebecca Gonsalves for the petitioner that though her client wanted to pursue a degree in law from 2019, they were unable to do so due to the Covid pandemic. In January 2023, the petitioner applied to TISS to change their name and gender in the last educational document. As there was no response, the petitioner approached the HC.

Gonsalves submitted that as the TISS website did not have any option for gender and name change and the HC should direct the institute to include such option so that other alumni could also benefit.

After hearing the submissions, the bench referred to the 2014 Supreme Court judgement in National Legal Services Authority (NALSA) v/s Union of India case and noted, “The decisions of the SC direct us towards greater inclusiveness and acceptance of individuality and individual traits. These are not to be compromised because of some bureaucratic requirements.”

Noting that the institute could not rebut the contentions of the petitioner, the court said that the contentions of the institute that the name and gender could be changed only if all previous education records were changed was not acceptable. “That is not even remotely tenable. It would be a manifest injustice and a complete denial of fundamental rights including the right to privacy and the right to dignity covered by Article 21 of the Constitution of India,” the bench said.

Citing the circumstances of the petitioner, the bench said, “These are matters of self-realisation without predictable time frames. That does not mean that every person who, in exercise of these Article 21 rights, desires the necessary changes to be made must be put through the additional trauma of having to get reissued every single document from their birth onwards. What is required is a recognition and acknowledgment of the rights that the Petitioner invokes.”

Stressing on the need to move forward rather than making the petitioner go back in time, the court directed TISS to include facilitation of such changes in its online application system and also directed the state government to issue necessary instructions to all educational institutions to allow such changes.

“It is for the first respondent (TISS) to make this change on the first respondent’s website and for the second respondent (state government) to issue the necessary instructions to all similar educational institutions across Maharashtra,” the court said.