This article is written by Trisha Agarwala and Surbhit Shrivastava, from UPES, Dehradun. It deals with the status quo of the transgender community in India and laws governing their marriage as compared to those in other countries. 

Introduction

A transgender person is identified as “a person whose sense of personal identity and gender does not correspond with their birth sex.”^[1] Basically, transgender persons are those who do not identify with the gender they were assumed to be at birth. A transgender is not limited to the idea of only sexual preferences, but it includes the whole spectrum of gender. In most countries, they are recognized as the ‘third gender’.

Historically, the transgender community has been neglected. However, in India, the recognition of transgender people takes us as far as 3000 years ago. They also find their mention in the holy Vedas.^[2] Today, due to the rise in individuality and the express freedom given on expression, the rights of transgender people have been recognized and respected more than ever before in history. Some steps have been taken in the positive direction to ensure the basic rights of these people, who are often stereotyped by the society. Recently, 13 transgender people were recruited as police officers in the state of Chhatisgarh.^[3] Back in October 2017, the district administration of Bhopal inaugurated a public toilet exclusively for transgender people.

Gradually, transgender people are being recognized as members of the society at an equal footing. The Supreme Court has, through its various landmark judgements established that recognition of transgender rights is important. The most significant judgement is the NALSA v. Union of India^[4] judgement, in which the Supreme Court affirmed the position of transgender people as legally being “the third gender” and therefore, they are entitled to all fundamental rights guaranteed by the Constitution.

Another notable case is Navtej Singh Johar v. Union of India^[5] which abolished S. 377 of the Indian Penal Code and paved way for legalizing sexual relationships between people of all genders. After this judgement, the next step for the community was to ask for a law that would allow them to register their marriage under the law, thereby legalizing the concept of third-gender marriages. However, that has not been the case yet.

Problems Faced by the Trans Community

Transgenders have been forced to face a horrendous journey in their life for decades and decades. The stigma attached to sexual orientation and gender identity that fall outside the expected heterosexual, nontransgender norm relegates many Transgender people to the margins of society^[6]. This marginalization has led to them being grossly discriminated against, marginalised to the extent of having little control over their lives, have not been able to have equal access to resources and opportunities such as in employment, education, healthcare, housing and so on. They have been socially excluded and continuously stigmatized by society time and again to the point of predominantly having a low self-esteem and other mental health problems because of having to face racism, sexism, poverty alongside homophobia or transphobia.

They lack even the most basic facilities such as separate toilets, making them prone to sexual assault and harassment and are regular victims of hate crimes and violence. Transgenders are also rejected by their own families, who feel abashed by the birth of an intersex child, and parents eventually force them these children to undergo sex reassignment surgery (SRS) or intersex genital mutilation (IGM) without providing an opportunity to such children to understand and identify their gender and sexuality. The trans community has been oppressed beyond thought and an attempt must be made to bring them back from the margins to mainstream society.

Transgender Rights

The Indian Constitution enshrines notions of justice- socially, economically and politically. Article 14 of the constitution provides for right to equality, Article 15 prohibits discrimination on the ground of religion, race, nationality, gender or place of birth, Article 21 guarantees the right to privacy and personal dignity to all citizens and Article 23 prohibits human trafficking and other forms of forced labour. Moreover, the Universal Declaration of Human Rights provides that all people, irrespective of sex, sexual orientation or gender identity, are entitled to enjoy the protections provided for by international human rights law, including in respect of rights to life, security of person and privacy, the right to be free from torture, arbitrary arrest and detention, the right to be free from discrimination and the right to freedom of expression, association and peaceful assembly.^[7] However, the sad truth remains that despite the existence of ample rights to safeguard the human rights of transgenders both internationally and in the Constitution of India, they remain unenforced.

An Overview of Transgender Marriage in India

In a landmark judgement^[8] in 2019, the Madras High Court interpreted the word “bride” under S. 5 of the Hindu Marriage Act and held that it includes transgender persons as well. Hitherto, a “bride” was a woman that too only on the day of her wedding. But with this judgement, a new ground has been established. The Madras HC relied on the three most important judgements for LGBTQ+ rights: the NALSA judgement^[9], the K.S. Puttuswamy Case^[10] (privacy under A. 21) and the Navtej Singh Johar judgement.^[11],^[12] The Court opined that they were only stating the obvious, and that they did not interpret anything additionally, since the right to marriage for transgender persons has always been present in this statute. This interpretation has paved way for the transgender community to lobby for their marriage rights.

Despite this judgement, the government has included no provisions related to the marriage of transgenders in the 2019 Transgender Persons (Protection of Rights) Bill that has been introduced by it as a protection mechanism of the trans community and aiming to pave the way for a more progressive legal system.

The Union Government has clarified its stance regarding LGBTQ+ marriages. In a 2021 case before the Delhi High Court, the government has said that the judgements of the Supreme Court in Navtej Singh Johar and K.S. Puttuswamy case does not mean that homosexuality has been legalized, contrary to popular belief.^[13] The Government has said that these judgements have only de-criminalized a particular human behavior. It also pleaded that it is in the legitimate interests of the state to limit marriages of same-sex individuals, as the conduct of marriage should be in the most “natural way”, implying that marriages should result in the procreation of a child. The Union also added that Courts cannot give legal recognition to LGBTQ+ marriages when the statute does not provide for it.

This takes us to the existing provisions and whether there is any scope of amendment in these existing provisions to account for transgender marriages. S.5 of the Hindu Marriage Act mentions several conditions for a valid marriage under the law. One of these conditions is that the parties should not be “within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two”. The “degree of prohibited relationship” can be prima facie interpreted as a relationship that is not approved or allowed by the caste, sect, community or society. If this was the case, then it would’ve been easier to legalize same-sex and transgender marriages since the Courts would interpret it liberally, and hold that LGBTQ+ relationships are not “prohibited”. However that is not the case. “Degree of prohibited relationship” is defined under S. 3 (g) of the Act and mostly refers to close relatives and lineal descendants. Since “prohibited relationship” is clearly defined, it cannot be interpreted liberally to include marriages in the LGBTQ+ community.

S.4 of the Special Marriage Act discusses the conditions for a valid marriage. This Act was mainly enacted to give legal protection to inter-faith marriages if they are not recognized under the respective marriage laws of that religion. S. 4 (b) (ii) mentions that “neither party, though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children”. This provision also does not leave any scope for LGBTQ+ marriages, since it places a condition that the parties should be fit for procreation, which is not always possible in such marriages.

Therefore, the biggest challenge before the transgender community and the LGBTQ+ community, in general, is to secure marriage rights against the general notion of marriages for the procreation of a child. This can only be addressed by society accepting that marriages are not solely for raising children and families. The problem is mainly the society’s stigma regarding transgender persons, which has hindered them from securing marriage rights. They however have advanced their positions in society due to the liberalization of society, but there is still a long way to go.

Status of Transgender Marriage Laws in Different Countries

United Kingdom

Transgender marriage cases were first discussed in the 1970 British decision on Corbett v. Corbett.^[14] Here, a petition to legally annul a marriage was filed after one of the spouses who were born male had undergone hormonal treatment and sex reassignment surgery. The issues primarily involved determining “true sex” of the spouse and capacity to consummate the marriage. It was held that consummating the marriage using an “artificial cavity” constructed by a doctor could not be described as natural intercourse. This ruling was further codified and sparked a huge debate for transgender marriage jurisprudence.

At present, the Gender Recognition Act of 2004 allows people to gain full recognition of their acquired gender. This legal recognition enables people to obtain a new birth certificate that shows their acquired gender enabling them to adopt almost all of the legal rights which are afforded to that sex, including equal marriage rights.

United States of America

In the USA, anyone can marry in any of the 50 states, regardless of their gender and whether or not the officials in their state of residence recognise their gender. It was in the landmark case of Obergefell v. Hodges^[15], that the US Supreme Court recognised the right of same-sex couples to marry. It was iterated that merely decriminalizing the same-sex acts is not sufficient, legal recognition of same-sex relationships as heterosexual unions is equally necessary.^[16]

New Zealand

Quilter v Attorney-General (1994) is a landmark where New Zealand denied the right of marriage to same-sex couples. However, subsequent legislations did not comply with this stance. The Civil Union Act, 2004^[17], legalised civil unions for both same-sex and opposite-sex couples, where couples had been granted several rights including those of marriage.

Currently, New Zealand is one of the most liberal countries in the world when it comes to the rights of the LGBT community. Trans people have the same rights as the general population and marriage for them has been legal ever since 19 August 2013, after the passing of a legislation allowing the same.

Saudi Arabia

LGBT rights including that of transgender marriages are not recognised in Saudi Arabia and the community faces a lot of social as well as legal challenges in the country. Governed by extremely conversative Muslim ideologies, Saudi Laws recognises homosexuality and being a transgender as an immoral and indecent activity. Therefore, this is criminalised with severe punishments up to that of the death penalty.

South Africa

South Africa is a prime example of how one country that considered LGBTQ relationships a taboo changed its stance and formally enacted legislation to give marriage rights to all people irrespective of their gender. For this, the basic necessary condition of procreation was held discriminatory. In the case of Minister of Home Affairs v. Fourie^[18], the Constitutional Court of South Africa held that the condition of procreation excludes people that are not heterosexuals, and enforces that they are not normal. It also means that such people are not at an equal footing with the heterosexuals, and thus it is discriminatory and against the provisions of the Constitution. The Court held that there is much more to relationships than procreation, and that is love, which cannot be determined by the sex of the parties. Consequently, in 2006 the National Assembly passed a law allowing same-sex couples to legally solemnise their union.

Recommendations

Statutory changes that must be incorporated to concretely decide on the rights of the transgender community in relation to marriage are as follows:

1. The Special Marriage Act, 1954 has currently been drafted in a way to allow the marriage of only heterosexuals under it which seems to be violative of Article 15 of the Constitution. It must be read down by the courts to permit same-sex couples to marry under it.
2. If not so, the Transgender Persons (Protection of Rights) Bill 2019, should deal with the question of marriage, partnership, adoption, divorce, custody of child, succession and inheritance conclusively.
3. Marriage should be defined as the legal union of a man with a woman, a man with another man, a woman with another woman, a transgender with another transgender or a transgender with a man or a woman. Also, their union without marriage should also be legally recognized as partnership under the Act.
4. The Act must be specifically provided that the religious or customary practices are unable to prohibit the occurrence of such marriages. Moreover, adequate police protection must be granted when they are being solemnized if needed.
5. Transgender couples must also explicitly be given the legal right to adopt a child without their sexual orientation being a hindrance in the process.
6. Rights of divorce, custody of child, succession and inheritance must be addressed alongside the provisions for right of marriage.

Conclusion

Transgenders are a part of our society and the issues faced by them are countless. However, despite the progressive judgements by the Hon’ble courts, the transgender community in India is still oppressed and does not find sufficient protection under the statutes. The current laws relating to transgender marriages, both in personal laws and ones specially designed for them such as the 2019 bill seem to be grossly inadequate in providing proper inclusive definitions and addressing the issues faced by them in a humane fashion.

India is a signatory to the Yogyakarta Principles, principle 24(E) of which encourages states to recognise same-sex marriage and accord it equal status to different-sex marriage, which, though non-enforceable, is a progressive path for the country to follow.^[19] It is the duty of the government to empathise with the problems of this oppressed community, grant them the rights they deserve, and articulate a comprehensive legislation that clearly outlines the governmental position on transgender marriage and their rights as partners and spouses. There exists an urgent need for the government to clarity on this issue to allow for the formation of a coherent policy framework.^[20]

The transgender community deserves a heartfelt apology from the society for the way they have been mistreated and the delay they have had to suffer in obtaining a redressal for all that they have suffered. They must not be subject to more of this ostracism owing to the majoritarian norm and should be granted the Fundamental Rights that they have been guaranteed under the constitution of India.