The case was filed by Ms. P Tamil Nadu’s first transgender Sub-Inspector of Police, before the Madras High Court, challenging an order passed by the Central Adoption Resource Authority (CARA) rejecting her application to adopt a child. The petitioner submitted that she was living alone and had experienced a sense of emptiness in her personal life. Consequently, she decided to adopt a child to bring meaning and joy to her life. However, when she submitted her application through the CARA portal, it was rejected on the ground that she was a transgender person and that such an adoption was not permissible under the current Adoption Regulations, 2017.
Aggrieved by this rejection, she approached the High Court seeking directions to CARA to consider her application for adoption. The case came up before Justice M. Dhandapani, who heard both sides in detail.
Counsel for the petitioner argued that under Section 56 of the Juvenile Justice (Care and Protection of Children) Act, 2015, any single or divorced person, irrespective of gender, is entitled to make an application for adoption before the competent authority. It was submitted that the Act does not place any bar or restriction on a transgender person’s eligibility to adopt. The petitioner further contended that she was a single individual, and therefore, qualified under the provision permitting single persons to adopt.
It was asserted that the rejection of her application solely on the ground of her gender identity as a transgender woman amounted to unfair discrimination and violated the constitutional guarantees of equality and dignity under Articles 14 and 21 of the Constitution of India. The petitioner emphasized that the CARA Adoption Regulations, 2017 could not override the parent statute, the Juvenile Justice Act, and therefore, the rejection of her application was arbitrary, illegal, and unconstitutional.
On behalf of the respondents, it was contended that Regulation 5 of the Adoption Regulations, 2017, which governs eligibility criteria for prospective adoptive parents, does not currently include transgender persons within its ambit. The Regulation only allows adoption by (a) a couple, (b) a single female, or (c) a single male, subject to certain conditions regarding the gender of the child to be adopted. The counsel submitted that the rejection of the petitioner’s application was not due to discrimination but because the current statutory regulations do not recognize transgender persons as eligible categories for adoption.
The respondents further maintained that unless there is a specific amendment to Regulation 5 by the Union Ministry of Women and Child Development, CARA has no power or discretion to consider applications beyond what is prescribed in law. The rejection, therefore, was a procedural and regulatory compliance issue, not a discriminatory act against the petitioner.
Justice M. Dhandapani, after hearing both sides, observed that the issue before the court was not one of discrimination, but rather a statutory limitation arising out of the wording of the Adoption Regulations, 2017. The court noted that Regulation 5 explicitly lists who can apply for adoption, and since transgender persons are not mentioned, CARA could not be compelled to act beyond its mandate.
The court remarked, “Unless you come with a mandamus asking amendment to the law, how can we ask CARA to consider your application? You should approach the Central Government.” The judge clarified that the court cannot direct CARA to process the petitioner’s application in the absence of enabling provisions.
Addressing the argument on discrimination, Justice Dhandapani observed that the regulation’s restrictions also apply in other contexts, such as the rule that a single male cannot adopt a girl child, and therefore, the issue cannot be viewed solely through the lens of discrimination. The court stated, “Can you say it’s discrimination when a single male is not allowed to adopt a girl child? If your argument is accepted, then that is also discrimination. It’s not about discrimination; it’s about adoption of the child.”
The court held that the proper course for the petitioner would be to seek a policy amendment that would explicitly include transgender persons as eligible adoptive parents under the CARA framework.
Concluding the matter, the Madras High Court disposed of the petition and directed the petitioner to make an appropriate representation to the Union Ministry of Women and Child Development seeking an amendment to Regulation 5 of the Adoption Regulations, 2017 to enable transgender persons to adopt. The court recorded:
“The petitioner is directed to make an application with the first respondent seeking to make an amendment in Regulation 5, enabling a transgender person to adopt from the CARA agency. When such an application is made, the first respondent is directed to consider the same and pass orders within 12 weeks.”
With this direction, the plea was formally closed, leaving it to the Union Government to consider appropriate amendments to ensure inclusivity in adoption laws and procedures.
Written by Adv. Deeksha Rai
