Can an investigation officer, by conducting DNA tests, determine the sex or gender of a transgender person who underwent gender reassignment surgery and refuse to accept the changed gender? the Uttarakhand High Court has asked the State to give its reply.
The petitioner, in this case, had filed a complaint alleging that she was raped. She identified herself as a female and that she had undergone surgical process of changing her sex. She approached the High Court contending that, for no fault of her, she is being harassed by the investigating agencies. It was also brought to the notice of the court that when she approached police with a complaint, they refused to file an FIR under section 376 of the IPC (rape) and instead filed the complaint under section 377 (unnatural offences).
In his report, the Investigating Officer biologically declared (by conducting DNA test) that the petitioner is not "she" but is "he". The issue considered by the High Court was whether discretion can be given to the Investigating Officer to identify the gender of the petitioner.
Justice Ravindra Maithani noted that, in National Legal Services Authority judgment, the Supreme Court had not accepted the Corbett principle of "biological test" rather preferred to follow the psych of the person in determining sex and gender. In the case of Corbett Vs. Corbett, it was held that any operative intervention should be ignored and the biological sexual constitution of an individual is fixed at birth, at the latest, and cannot be changed either by the natural development of organs of the opposite sex or by medical or surgical means.
The court then asked the state to file an affidavit answering these queries
• How the Investigating Officer may be given the right of determination of sex or gender of the petitioner? • How the Investigating Officer can determine the sex and gender of the petitioner based on some DNA analysis and "biological test"? • How Investigating Officer could apply the Corbett principle which was not accepted by the Hon'ble Supreme Court?