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"She Chose Female Gender As Her Self-Perceived Gender Identity": Bombay HC Allows Transgender To Contest Polls As Woman Candidate

Sparsh Upadhyay
5 Jan 2021 3:35 PM GMT
She Chose Female Gender As Her Self-Perceived Gender Identity: Bombay HC Allows Transgender To Contest Polls As Woman Candidate
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Noting that Transgender Persons (Protection of Rights) Act, 2019 permits a transgender person to have a right to be recognized and such transgender is permitted to have a right to self-perceived gender identity, the Bombay High Court (Aurangabad Bench) on Saturday (02nd January) allowed a transgender to contest village panchayat polls as a Woman candidate. The Bench of Justice...

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Noting that Transgender Persons (Protection of Rights) Act, 2019 permits a transgender person to have a right to be recognized and such transgender is permitted to have a right to self-perceived gender identity, the Bombay High Court (Aurangabad Bench) on Saturday (02nd January) allowed a transgender to contest village panchayat polls as a Woman candidate.

The Bench of Justice Ravindra Ghuge allowed the plea filed by Anjali Guru Sanjana Jaan, who challenged an order passed by the returning officer who rejected her nomination for the village panchayat polls.

Importantly, while allowing her to contest Gram Panchayat election in Jalgaon district under women's category, the Bench remarked,

"In the present case, the petitioner has opted for the female gender as her self-perceived gender identity and makes a solemn statement, which is recorded as the statement made to the Court, that henceforth in her lifetime she would not switch over to the male gender driven by opportunism and would continue to opt for the female gender, in future, save and except if there is a reservation provided for transgender in public life."

The matter before the Court

Aggrieved by the rejection of her nomination form by the Returning Officer, the petitioner moved Bombay HC.

Significantly, the petitioner decided to choose the female gender and hence, had tendered her nomination form for contesting the election from the ward reserved for women-general category.

The reason for rejecting the nomination form was that the petitioner is a transgender, and that the ward was reserved exclusively for women-general category.

It was stated that there was no reservation for the transgender category in the Village Panchayat elections.

The petitioner before the Court relied upon Section 4(2) of the Transgender Persons (Protection of Rights) Act, 2019 and also placed reliance upon the judgment delivered by the Supreme Court in the matter of National Legal Services Authority vs. Union of India and others, AIR 2014 SC 1863 : (2014) 5 SCC 438.

Arguments put forth

The petitioner's Counsel made a categoric statement, on instructions, that this was the first occasion wherein, the petitioner had opted for a right to a self-perceived gender identity and had selected a female gender for all purposes during her lifetime.

He further submitted that the petitioner, henceforth, shall not switch over to the male gender under any circumstances anytime in future during her lifetime.

The Order of the Court

The Bench noted that it was quite apparent that the Returning Officer was handicapped, insofar as the knowledge of law was concerned, while deciding the fate of the nomination form of the petitioner.

The Court observed that no other contesting candidate had taken any objection against the petitioner and it was the Returning Officer, who was circumspect about the nomination form of the petitioner and hence, opted to reject the form believing that the petitioner could neither be a male nor a female and the ward had been reserved for women general category.

Lastly, the Writ Petition was allowed and the impugned order was quashed and set aside. Accepting the nomination form of the petitioner, the Court permitted her to contest the election from the ward under her chosen category (female category).

Case title - Anjali Guru Sanjana Jaan v. The State of Maharashtra. Through its Principal Secretary, Rural Development Department [Writ Petition (Stamp) No.104 of 2021]

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