Appropriate ID proof cannot be a pre-condition for a transgender person to get medical services

Since the enactment of the Transgender Persons (Protection) Act (“TG Act”) in 2019, all healthcare facilities are prohibited from showing any form of discrimination against transgender persons. The Act also lists down the process by which a transgender person can officially record their gender identity. 

Recently, the Delhi High Court was hearing a writ petition from a transgender person who was denied medical treatment at a government hospital for not having appropriate identity documents. The Court ordered the hospital to provide the necessary treatment promptly and rehabilitate the petitioner. 

Read our Weekly to understand what the law says about identity documents for transgender persons. 

What identity proofs must a transgender person have?

The landmark judgment of the Supreme Court of India, NALSA v. Union of India (2014), recognised the right of a person to self-identity as the gender that they identify with. This was further elaborated in the TG Act which under Sections 5 and 6. These sections state that a transgender person can obtain a certificate of identity proclaiming their chosen gender identity by making an application with an affidavit before their respective District Magistrate. The District Magistrate has to issue the certificate within 30 days of application. No medical or physical examination is required for it. 

Can the certificate of identity be modified later?

Yes, the Act accounts for a change in gender post obtaining the certificate. However, it allows only those persons who may have undergone any gender reassignment surgery to apply for a change in gender by providing an appropriate medical certificate to the District Magistrate. 

Is it mandatory to have an identity proof for transgender persons?

The TG Act or the corresponding 2020 Rules do not specifically state that obtaining an identity certificate is mandatory for a transgender person. In fact, Section 3 of the TG Act states that no person or establishment can discriminate against a transgender person in terms of access to healthcare facilities, educational or occupational opportunities, right to residence or movement on the basis of any identity proof.  The TG Act simply gives transgender persons the right to officially record their gender identity through the certificate. Even the NALSA judgement highlights the right of transgender persons to self identity and does not obligate them to obtain any identity proof. 

However, the National Council for Transgender Persons’ website (NCTP) states that certificate of identity is mandatory for accessing benefits under the Central Sector Scheme Support for Marginalized Individuals for Livelihood and Enterprise (SMILE). Similarly, a response from the Ministry of Social Justice and Empowerment to a parliamentary question highlights that for health services related to gender reassignment, one must have an identity certificate but for others, an Ayushman Bharat card will be accepted. 

So, in certain cases, the certificate is mandatory and it can be an important document to prevent instances of harassment and discrimination. Identity proofs may be obtained through in-person applications or through the digital portal of the NCTP. 

What did the Delhi High court order in the current case?

The petitioner in the current case was an HIV-positive person and needed medical treatment for non gender reassignment related issues. The High Court ordered that the petitioner be provided with the required medical treatment whether or not they have any identity proof. The Court also ordered the government of Delhi to arrange for appropriate shelter  for the petitioner, keeping in mind their health condition and the weather conditions in Delhi. 

To know more about the rights of Transgender persons in India, read our guide here.