BEYOND BINARY: THE KERALA HIGH COURT’S STAND FOR TRANSGENDER PARENTAL RECOGNITION

Introduction

In Zahhad v. State of Kerala (WP(C) NO. 23763 OF 2023), Justice Ziyad Rahman of the Kerala High Court gave a revolutionary Judgement with respect to the rights of transgender persons, and their recognition as parents without sticking to binary gender roles. The case revolves around whether the birth certificate of a child born to transgender parents can bear the term ‘parents’ without specifying ‘mother’ or ‘father’, and thus conform to the gender identities of the Petitioners. This Judgment not only interprets existing statutes like the Registration of Births and Deaths Act, 1969 but also emphasizes on the importance of constitutional protections granted to the Transgender community under Articles 14, 15, 16, 19, and 21 of the Constitution.

 

Facts of the Case

Petitioner 1 was assigned female at birth but later identified as male and chose to live accordingly, while Petitioner 2 was assigned male at birth and subsequently identified as female, choosing to live as a woman. Both of them possess their Transgender Identity Card issued by the District Magistrate under provisions of the Transgender Persons (Protection of Rights) Act 2019 (hereinafter ‘2019 Act’).

Petitioner 1 and 2 started to live together and during this period, Petitioner 1 (trans-man) gave birth to baby boy (Petitioner 3) on 08.02.2023.

The Birth Certificate of the child was registered by the Kozhikode Corporation wherein the Petitioner is shown as mother and Petitioner 2 as father in the register maintained by the hospital as per the provisions of Kerala Registration of Births and Deaths Rules, 1969 (hereinafter Registration Act of 1969).

The couple asked for a new birth certificate designating the parents not as ‘male’ or ‘female’ but just ‘parents’. The parents contended that the gender identities as described in the birth certificate, being inconsistent to the gender status in life adopted by the parents could cause future difficulties for child with regard to education, employment etc.

The Corporation declined, claiming that it would go against the provisions of the Registration Act of 1969.

 

Issues Raised

1. Whether a child born to transgender parents can have a birth certificate with label as ‘parents’ rather than the use of binary categories like ‘mother’ and ‘father’?
2. Whether the statutory regulations under Registration Act of 1969 permitted modification in entries or were rigid in the form in which they were prescribed?
3. Whether refusal to consider the Petitioner’s application amounts to violation of their constitutional rights and rights enshrined under the 2019 Act?

 

Analysis

1.Statutory Interpretation

The Court interpreted the relevant provisions of the Registration Act of 1969 and the Kerala Registration of Births and Deaths Rules, 1999. They specify standardized forms (in particular Form 5) in which the words “mother” and “father” are entered in designated columns. The Court also noted that Section 12 of the Registration Act of 1969 provides for the delivery of “extracts” of the Birth Register and not literal copies, which allows for some discretion in formatting.

2.Transgender Rights

The Court drew upon the key precedent by the Supreme Court in National Legal Services Authority (NALSA) v. Union of India (2014) where Supreme Court recognized the right to self-determined gender identity and categorized transgender persons as the ‘Third Gender’. It stressed that constitutional recognition and protection for transgender persons are established under the Constitution, particularly within Articles 14, 15, and 21.

Additionally, the Transgender Persons (Protection of Rights) Act, 2019 recognizes, the right to a self-perceived gender identity, and makes it mandatory for the State to create an enabling environment in which they are not excluded and discriminated against. The identity of the child is linked to the gender identity of the transgender parents so the child’s rights must be harmoniously interpreted.

3.Adjudication of claims for social justice

The Court applied the principle of ‘Social Context Judging’, as laid down in Badshah Vs. Urmila Badshah Godse (2014) by the Supreme Court, and stressed the dynamic nature of the law. The law must evolve to reflect change in societal norms and to avoid injustice against the oppressed.

The Court referred to the case of Deepika Singh v. Central Administrative Tribunal (2023), where the Supreme Court also observed that the definition of ‘family’ needed to be expanded to go well beyond traditional forms and accommodate single parent families, queer families, families created by transgender persons and so forth. These families deserve the same treatment under the law.

4.Absence of Injury to the Statutory Scheme

The Court differentiated between amending register entries (remain unchanged) and the issuing of a birth certificate (extract). The Court ruled that since Petitioners were not requesting changes to the official register of entries, but merely a form of certification of social and practical utility, there could be no legal conflict to statutory objectives.

It referred to the Supreme Court ruling in ABC v. State (NCT of Delhi) (2015) allowing a single mother to get a birth certificate without name of father and showed that the judiciary has judicially sanctioned such relaxation when necessitated by societal norms.

 

Conclusion

The Kerala High Court delivered a progressive Judgment, striking balance between the statutory rigidity and progressive social realities. By directing that a new birth certificate to be issued naming the Petitioners as ‘parents’ and without reference to gender, the Court upheld the constitutional principles of dignity, equality, and non-discrimination for transgender persons. It reiterated that the law has to reflect societal changes and protect the even the unconventional family structures. The Judgment is a significant development in the jurisprudence of gender identity and legal parenthood in India, opening the doors for inclusive interpretation of statutory provisions in future matters relating to LGBTQ+ rights.

 

BENJAMIN THOMAS

4^TH YEAR LAW STUDENT,

SYMBIOSIS LAW SCHOOL, HYDERABAD