Develop policy for people who undergo sex change outside India to get new passports: MHA advises MEA

A single-judge bench of Justice Subramonium Prasad, in its November 7 order, took note of two letters submitted by the Centre’s counsel received from the Deputy Secretary (Immigration) and MEA.

The MHA, in its letter, said it agrees with the MEA’s comments; it states that the matter has been examined in consultation with the field agency and since the biometrics are not liable to change after one undergoes such medical procedures, a mechanism or policy may be developed by the MEA (as the biometric records of Indian Citizens are available with MEA), to verify their identity before issuance of new passports.
A letter from the embassy concerned addressed to BOI, to facilitate immigration clearance in such cases, is also required to avoid any confusion at the Immigration Check Posts, it further said.

The MEA, in its letter, said that Bureau of Immigration (MHA) is in agreement with the MEA that if a person undergoes a sex change operation abroad and due to the operation there is a change in name, sex, as well as appearance of that person, and the details in the old passport do not match with the changes, then such person may apply for re-issuance of passport at Indian Mission/Post abroad concerned. A fresh passport may be issued to such a person upon furnishing prescribed documents and receipt of a clear police report, it further said.

The MEA has said since the suggestion is for developing a new policy/mechanism, it needs time to “thoroughly examine the same with different stakeholders”. The plea is next listed on December 19 to see the further progress in the matter.

The HC had observed that although the matter had become infructuous as the petitioner had been issued the passport, it had however directed the Centre’s counsel to evolve a policy by which persons who undergo operations for change of sex outside India are able to get a fresh passport in their new identity without facing difficulties.

The plea submits that the petitioner was assigned the male gender at birth and her passport issued in 2013 reflected the same. The plea states that the petitioner was transitioning between 2016-2022 and in 2018, she moved to the US and underwent a sex reassignment surgery in 2022. She was also subsequently able to legally secure a change of name and gender by way of a court order in the US.
The plea states that the petitioner submitted an application to the authorities on January 18, 2023, for re-issue of passport with revised particulars changing her name and gender but it had been pending.