[This is a guest post by Muskan Tibrewala.] In a much-celebrated decision of the High Court of Kerela in Zahad v. State of Kerala, the court directed the Kozhikhode Corporation to issue a modified birth certificate to the child of transgender parents. The modification is for the certificate to refer to the parent Petitioners as […]
[This is a guest post by Muskan Tibrewala.]
In a much-celebrated decision of the High Court of Kerela in Zahad v. State of Kerala, the court directed the Kozhikhode Corporation to issue a modified birth certificate to the child of transgender parents. The modification is for the certificate to refer to the parent Petitioners as “Parents” and not “Father” and “Mother.”
However, the court’s decision is limited; modifying only the birth certificate and not the birth register maintained under the Registration of Births and Deaths Act, 1969. The court recognizes that the binary nature of the legislation shows that the law did not contemplate the legal recognition of transgender persons but does little to widen it – explicitly avoiding changes in the birth register because it is “sacrosanct” and must be maintained following a “strict procedure.” Several administrative records of the state such as the census records and NCRB data now include references to transgender persons. The court fails to see that such documents can only be without error if they reflect the realities of our society and do not deny the existence of transgender persons or transgender parents.
Remedies, not just Rights under the Transgender Persons Act, 2019
I previously wrote about this petition here, emphasizing the reasons why the state’s interest in consistent and ordered registration of birth details is not undermined by the right of a transgender person to parental status in accordance with their identified gender. I drew the authority for such modification from Sections 6 and 7 of the Transgender Persons (Protection of Rights) Act, 2019 which allow transgender persons to change their name and gender in “official documents relating to the identity of such person”. The birth certificate of the Petitioner’s child relates to their identity as parents of their child and as such may be modified under this provision.
Instead of relying on Section 6 and 7 of the Transgender Persons Act however, the Kerala High Court focuses its examination to to Registration of Births and Deaths Act, 1969 and the Kerala Registration of Births and Deaths Rules, 1999. In its decision, the Transgender Persons Act is only relevant in so far as affirming the legal recognition of the transgender identities of the Petitioners. The court lays down all the provisions of the Transgender Persons Act in its judgement but uses it only as a source of rights despite the availability of a clear remedy.
This is partly because the court frames the legal rights impugned in the case as qua the child and not the parents. The court observes that the Transgender Persons Act though not applicable to the child, can protect the child because “his identity is inseparable with that of the 1st and 2nd petitioners who are the transgender couple.” This interpretative gymnastics is unnecessary and may be inconsistent in application. The legal right impugned is the right of the transgender parents to the recognition of their identity in official documents. The legal issues are also framed as such in the prayer of the Petitioners, where they sought the reading down of relevant provisions of the Registration of Births and Deaths Act, 1969 and the Kerala Registration of Births and Deaths Rules, 1999 to include all voluntary changes to name and gender identity. This includes forms for the birth report (to be added to the birth register and given for statistical processing) the birth certificate and the legal information to be added in the birth register.
Exceptional Interpretations: The Registration of Births and Deaths Act, 1969
The court’s decision is limited (stated as on the request of Petitioners) only to the birth certificate issued by the Petitioner without modification of any entries in the register maintained under the Registration of Births and Deaths Act, 1969. The court denies the prayer to read down the statutory provisions, finding that this is a rare and exceptional case where exceptional remedies are sufficient. The court provides no basis for its presumption that cases of transgender persons giving birth to children are rare. The court’s exceptional remedy in this case is to allow the modification of the birth certificate without a corresponding modification in the birth register through a curious and difficult reading of Section 12 of the Registration of Births and Deaths Act, 1969 and Rule 8 of the Kerala Registration of Births and Deaths Rules, 1999:
Section 12. Certificate of registration of births or deaths.—The Registrar shall, as soon as the registration of a birth or death has been completed, but not later than seven days, give, free of charge, electronically or otherwise under his signature, to the person who gives information under section 8 or section 9, a certificate extracted from the register relating to such birth or death in such form and manner as may be prescribed.
Rule 8. Extracts of registration entries to be given under section 12.—(1) The extracts of particulars from the register relating to births or deaths to be given to an informant under section 12 shall be in Form No. 5 or Form No. 6, as the case may be.
The court states that Section 12 does not require that all the information given to the Registrar and included in the Register must be included in the certificate. Further, Rule 8 only requires “extracts” of the Register for the birth certificate. This, the court decides is sufficient to show that there can be different information in the birth registrar and the birth certificate with respect to the child of the Petitioners. However, it is clear from a simple reading of the above provisions that the information that is in the register and provided for the certificate through extracts must be the same information. It is trite that registers are kept for administrative recordkeeping and verification. Differences in the extracts and the record could lead to authentication issues.
As Form-5 (the form for the birth certificate) has no such accommodation, the court finds that modifications may be allowed to Form 5 in the interests of the rights of transgender persons. The legal underpinning for such interpretation and modification is “social context adjudication” upheld by the Supreme Court in Badshah v. Urmila Badshah Godse [(2014)1 SCC 188] and the broad discretionary powers under writ jurisdiction. The court also cites ABC v. State (NCT of Delhi) [2015(3) KLT 708(SC)] where the Supreme Court directed authorities to issue a birth certificate with the name of one parent and Deepika Singh v. Central Administrative Tribunal [(2023)13 SCC 681] where employment maternal benefits were extended to a mother who was unable to avail them due to the inclusion of surviving children of her spouse in her previous marriage in her record.
The court also cites Deepika Singh to emphasize the Supreme Court’s dicta on the necessity of evolving and inclusive definitions of families. These cases while befitting precedents for the court’s “social context adjudication” also show how the court did not go far enough. In ABC, the Supreme Court directed that whenever a single parent applies for a birth certificate, the authorities may register them with an affidavit to this effect. Instead of providing an exceptional remedy, the court recognized that the law must be dynamic and include everyone. Similarly in this case, the court could have provided a remedy that ushers the law to evolve to recognize all identities and families. However, an opportunity to further align law with society, procedures with reality and better recognize transgender parenthood under the law was missed.
