Kerala High Court grants relief to transgender parents who sought to change their gender details in child's birth record

The Kerala High Court on Monday ordered that the gender details of Kerala's first transgender parents in their child's birth certificate be changed from 'mother' and 'father' to just 'parent' for both partners [Zahhad & Ors. v State of Kerala]..Justice Ziyad Rahman AA passed the order on a plea by Zahhad, a transman (assigned female at birth but identifies as a man) and Ziya Paval, a transwoman (assigned male at birth but identifies as a woman), who are the first openly transgender couple in Kerala."This Writ Petition is disposed of directing the [Kozhikode Corporation Secretary] to issue birth certificate in Form 5, with a modification by removing the columns set apart for the names of Father and Mother and by incorporating the names of [Zahhad] and [Ziya Paval] as the parents, without referring to [their] gender," the Court ordered..The Court deemed it fit to step in to aid the couple, saying that it would only reinforce their rights and those of other transgender persons without affecting the rights of anyone else. "If a certificate as sought by the petitioners, advances the welfare, interests and the rights of the petitioners or the class/category they fall in, particularly when their rights originate from the Articles of the Constitution of India, without offending any of the rights of the 3rd parties and without doing violence to any statutory provisions, this court need not hesitate to step in and to issue appropriate directions to issue a certificate to the petitioners," the Court said. .The transgender couple had garnered some media attention in February 2023 when Zahhad gave birth to their child.The birth certificate of the child registered by the Kozhikode Corporation recorded the mother's name as Zahhad (transgender) and the father's name as Ziya (transgender)..Zahhad and Ziya approached the Corporation to change the details in their child's birth certificate to indicate both of them as just 'parent' rather than mother and father.However, their request was rejected by the authorities, prompting them to move the High Court for relief. "Since scientifically there’s some contradiction in the fact that male giving birth to a child, the petitioners requested the authorities to avoid the name of father and mother but simply writing ‘Parent’ to avoid further embarrassment which the third petitioner (child) would have to face during her life time viz. school admission, Adhar Card, PAN Card, Passport and various other documents including job and connected matters," the petitioners explained..The plea added that the denial of such a certificate is a denial of their and their child's fundamental rights.Moreover, the denial of the new certificate goes against the dictum laid down by the Supreme Court in the landmark NALSA case, it was contended.The plea pointed out that various other countries allow couples, especially same sex couples, to choose their title in their child's birth certificate from among 'mother', 'father' and 'parent'..The High Court observed that since the time the Registration of Births Act, 1969 was formulated, the law and society have evolved, especially when it comes to the rights of transgender persons. In this regard, the Court pointed to the Supreme Court's landmark NALSA judgment and the enactment of the Transgender Persons Act, 2019."The concepts such as, the transgender persons leading a life together as a family as we normally understood, having their own children, getting the names of their children registered under the provisions of the Registration of Births and Deaths Act etc., were something the law makers probably not anticipated at the time of its enactment. Therefore, these are the changes that occurred in the Society, post enactment of Act, 1969, which has got the statutory recognition and also their gender based individual status, identity and rights were upheld by the Hon’ble Supreme Court as well. Despite the above, the corresponding changes in the Act, 1969 have not been made, so as to uphold the rights, protection and the identity of the transgender persons, which they are otherwise entitled to, based on the various Constitutional rights declared in their favour as per National Legal Services Authority’s case," the Court explained.Therefore, the Court held that modifications can be made when the rights of the transgender persons are affected."The concepts regarding the rights of transgender persons were not taken into account while prescribing the Forms contemplated under the Act and Rules as far as the birth certificate xis concerned. Therefore, I find that necessary modifications can be made in appropriate cases where the interests of the transgender persons are involved," the Court said..The petitioners were represented by advocates Padma Lakshmi, Mariyamma AK, Ipsita Ojal, Prashant Padmanabhan, Meenakshi KB and Pooja Unnikrishnan..[Read Judgment]