Transgender person has every right to choose gender: Odisha HC orders family pension for transwoman

Sonal Bhargava | Edited by Prabhat Bandhulya

Case Title: Kantaro Kondagari @ Kajol v State of Odisha & Ors

The Odisha HC recently held that transgender persons have the right to choose their own gender and are entitled to avail family pension benefits that ensue accordingly.

The Court was hearing a petition filed by a trans woman who wanted the authorities to grant her a family pension.

Her mother was sanctioned family pension after her father, a government employee, died. After her mother died in 2020, the petitioner filed a family pension application under Rule 56 of the Odisha Civil Services (Pension) Rules, 1992.

According to the Rules, a family pension is awarded to an unmarried daughter upto the age of 25 until she marries or dies, whichever comes first, provided that the daughter's monthly income does not exceed Rs 4,440 per month.

The petitioner and her sister claimed that they are both qualified for the pension since they are unmarried daughters, widows, or divorced daughters.

Their application was first supported by the appropriate authority, who knew the petitioner's gender identification. The pension, however, was not approved or paid out.

Advocate Omkar Devdas, appearing on behalf of the petitioner, argued that the petitioner had been discriminated against solely because she is a transgender person, and that the authorities' actions were in flagrant violation of the Pension Rules, the Transgender Persons (Protection of Rights) Rules, 2020, and the Transgender Persons (Protection of Rights) Act, 2019.

Devdas further cited the Supreme Court's historic NALSA decision, claiming that the petitioner's treatment was in violation of her rights under Articles 14 and 21 of the Indian Constitution.

The Court relied on several portions of the judgment of NALSA which are quoted below,

"State is bound to take some affirmative action for their advancement so that the injustice done to them for centuries could be remedied. Transgender persons are also entitled to enjoy economic, social, culture and political rights without discrimination, because forms of discrimination on the ground of gender are violative of fundamental freedoms and human rights. "

"Transgender persons' right to decide their self identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender."

The Court ordered the Principal Accountant General to process the petitioner's application for a family pension within six weeks, citing NALSA, the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights.