ISSUE
Whether transgender parents can get a birth certificate for their child as ‘parents’ despite the statutory form having specific columns for ‘father’ and ‘mother’?
KEY FACTS
Zahhad, a transgender man, and Ziya Paval, a transgender woman, gave birth to their child in 2023. Both of them hold transgender certificates recognising their identity as ‘transgender’ under section 6 of the Transgender Persons (Protection of Rights) Act, 2019. At the time of the birth, the birth certificate issued mentioned Zahhad as the ‘mother’ and Ziya Paval as the ‘father’ of their child. They feared that having gender identities different from their actual experience on the birth certificate would cause problmes and prejudice towards their child and requested both of them be mentioned as ‘parents’. The Secretary of Kozhikode Corporation claimed that this was not possible since the prescribed format under the Kerala Registration of Births and Deaths Rules, 1999 (‘Kerala Rules’), only contains a column for ‘mother’ and ‘father’. Zahhad, Ziya Paval and their child approached the Kerala High Court seeking the Rules to be read down.
DECISION & REASONING
The Kerala High Court held that Zahhad and Ziya Paval are entitled to be recorded in their child’s certificate without reference to their gender. The Court cited NALSA v. Union of India and the Transgender Persons (Protection of Rights) Act, 2019 to affirm the legal recognition and protection granted to transgender persons. The purpose of the Registration of Births and Deaths Act, 1969 and the Kerala Rules framed is to ensure that proper records are maintained with regard to the details of the births and death. They do not contemplate such a situation. Since making this change would affirm Zahhad and Ziya Pavala’s rights and would not cause any harm to third parties, the Court avoided a ‘hyper technical’ approach. The Court directed the Secretary to issue the child’s birth certificate without reference to the parents’ gender.
The Court also noted that although the child is not a transgender person, the child’s identity is inseparable from its parents. So, a birth certificate which was primarily for the child could still be evaluated under the provisions under the Trans Act. However, the Court stated that the reading down of relevant provisions of the Kerala Rules was not necessary, as the case at hand was rare and exceptional. The Court did not decide on the validity of the Rules.
SIGNIFICANCE
The Court recognised the provisions of the Trans Act and NALSA have bearing on the interpretation of the rights of children of transgender couples. It also recognised the right to recognition of gender identity for issue of statutory certificates even when the relevant rules and forms do not provide for it. However, the refusal of the Court to read down the relevant rules and forms citing ‘exceptional facts’ could mean transgender parents have to approach courts in future cases.