From Gender Binary to Gender Spectrum: Recognition to Cis-Trans Marriage in India

Introduction

Innumerable controversies. Uncountable opinions. Infinite wars of words.

One name conjured.[1] Transgender.

The expression “transgender” is an umbrella term for persons whose gender identity, expression and orientation are incongruent with their biological sex. Despite persistent efforts by various activists round the globe, the lives of the people of the transgender community still continue to be deplorable when tested on the bedrock of human dignity. Fortunately, the judgment authored by Swaminathan, J. in Arunkumar v. Inspector General of Registration,[2] among others, somewhat transformed the lives of transgender people by conferring upon them a tangible civil right to enter into the social institution of marriage thereby making an endeavour to curb the centuries old insurmountable torture and injustices faced by this rather “insignificant” community. This is one of the many baby steps being taken by the Indian judiciary to blend and integrate the transgender community into India’s social institutions.

Brief Facts and Procedural History

Mr Arun Kumar (Petitioner 1) got married to Ms Sreeja (Petitioner 2), a transwoman, on 31-10-2018 at Arulmigu Sankara Rameshwarar Temple, Tuticorin according to Hindu rites and customs. The temple authorities though permitted the performance of the marriage declined to vouch for it. When they submitted a memorandum for registration of marriage before  Joint Registrar  II, Tuticorin, he refused to register the same on the ground that Petitioner 2 was a transwoman and cis-transgender marriage does not come under the purview of the Hindu Marriage Act, 1955[3] (hereinafter, “HMA”). The petitioners challenged this decision by preferring an appeal before the District Registrar, Tuticorin who in turn confirmed the Joint Registrar’s decision. This decision was challenged before the Madras High Court.

Issues

  1. Whether the term “bride”, as mentioned in Section 5, HMA meant only cis-women, or included transwomen also, given Sreeja is a transgender woman.
  2. Whether the State’s refusal to register the marriage of the petitioners violate Articles 14, 19(1)(a), 21 and 25 of the Constitution of India.
  3. Whether forced sex reassignment surgery (SRS) or intersex genital mutilation (IGM) of intersex children be banned.

Observations

I. Mythology and Traditional Lore

The Court highlighted the existence of transgender people by narrating the stories of Aravan,[4] Shikhandi,[5] Lord Ayyappa.[6] It went on to note that the existence of people outside gender binary is “acknowledged, explained and validated”[7] through these indigenous Hindu mythologies and traditional lores.

II. Modern Neuroscience

Just a decade or two back, being existing outside the gender binary was considered to be a symptom of pathology, disorder, or disability. However, the situation has somewhat changed now. Even neuroscience has accepted that there exist genders other than man and woman. The Court quoted an excerpt from Professor V.S. Ramchandran’s laudable book “The Tell-Tale Brain” explaining that sex, gender, and sexuality are not a binary rather a spectrum which is a continuum of identities/orientations/expressions ranging from woman/feminine to man/masculine and falling in the middle range of such continuum is not “undesirable or perverse”.[8]

III. Constitutional and Judicial Stance on Gender-Sex Dichotomy and Trans Community

A court of law is an abode of semantics-pragmatics interface. It interprets and sometimes interpolates words in the statutes. Swaminathan, J. reiterated that sex and gender are not interchangeable terms. He referenced to the judgment in NALSA[9], the Court’s purposive interpretation of Article 14 vis-à-vis third gender wherein the words “any person” include not only the anachronistic genders (man and woman) but also transgender, and therefore a transgender person is equally “entitled to legal protection of laws in all spheres of State activities”.[10] The Court went on to grandiloquently expound that any discrimination on the ground of sexual orientation or gender identity or attack on personal autonomy and right to self-perceived identity of a transgender person would be ultra vires Articles 14,[11] 19(1)(a),[12] and 21[13] of the Constitution of India which were extensively interpreted by the Court in NALSA[14] to encompass one’s gender identity also[15] and further recalled the principles affirmed in K.S. Puttaswamy v. Union of India[16] and Navtej Singh Johar v. Union of India[17] which dealt with the right to privacy and decriminalisation of consensual intercourse between same sex adults (Section 377 of Penal Code, 1860[18]) respectively. The Court, therefore, opined that the question whether a transgender person has a right to decide zir[19] self-identified gender is no longer res integra.[20]

IV. Jurisprudence Regarding Intersex People

The Court noted that the intersex[21] people have been covering a fatal and horrendous journey of life and languishing in the margins for decades and that there is an urgent need to bring them back from the margins to the “mainstream”. G.R. Swaminathan, J. in the judgment[22] directed the Government to launch a sustained awareness campaign to encourage parents to not be enveloped by embarrassment or shame on the birth of an intersex child.[23]  The judgment narrated the melancholic tale of hundreds of thousands of intersex infants who are denied the time and space to find their true identity and are forced by the parents 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 Court referred to S. Amutha v. C. Manivanna Bhupathy[24] wherein K. Chandru, J. observed that “[u]ltimately, neither the father nor the mother can claim suzerainty over the child and in the ultimate analysis, the children are not the children of their parents”,[25] and held that the consent of the parent cannot be considered as the consent of the child. It also pointed out the grave breach of the directives issued in NALSA[26] wherein the Supreme Court directed that “no one shall be forced to undergo medical procedures, including SRS, sterilisation or hormonal therapy, as a requirement for legal recognition of their gender identity”.[27] Further, it discussed Article 39(f) of the Directive Principles of State Policy (DPSP)[28] to press upon the State’s duty to protect intersex children from exploitation caused by SRS or IGM and directed the Government of Tamil Nadu to issue a government order enshrining the Court’s directive in NALSA[29] directive to effectively ban sex reassignment surgeries on intersex infants and children.

V. “Bride” under Section 5 of Hindu Marriage Act, 1955

The writ petitioners in the instant case profess Hindu religion, therefore, their marriage would be governed by HMA. Section 5, HMA lays down the conditions of a valid Hindu marriage under which clause (iii) requires the bridegroom and the bride to have completed the age of twenty-one and eighteen respectively. The Court rejected the State’s contention that the petitioners’ marriage is not valid in law as Petitioner 2 could not be recognised as a bride under Section 5(iii), HMA. It eloquently interpreted the word “bride” so as to embrace not only cis-woman but also transwoman or intersex person who perceives zirself to be a woman within its ambit in accordance with the directives laid down in NALSA.[30] It opined that the word “bride” under Section 5 cannot have a “static or immutable meaning”[31] and must be “interpreted in the light of legal system as it exists today”.[32] Therefore, Petitioner 2 who was born intersex but identifies herself as a woman should be treated as “bride” under the provisions of Section 5, HMA. A reference was made to Shafin Jahan v. Asokan K.M.[33] wherein the Supreme Court held that the right to marry a person of one’s choice is integral to Article 21 of the Constitution.[34] The Court further recalled the mention of James Obergefell v.Richard Hodges[35], a landmark ruling by the Supreme Court of United States of America (SCOTUS) in Puttaswamy case[36] wherein the SCOTUS noted that “it would be contradictory to recognise a right to privacy concerning other matters of family life and not concerning the decision to enter the relationship that is the foundation of the family in society”.[37] In the light of this explication, the Court discussed Article 16 of the Universal Declaration of Human Rights which entitles men and women of full age to equal rights of marriage and its dissolution sans any restriction or limitation.[38]

            The Court took a pleasantly inclusive view in tune with the Court’s constitutional interpretation in NALSA[39] and declared that a “transgender person’s right to marry cannot be kept out of the purview of HMA”.[40] It further delineated that since the petitioners profess Hindu religion and their marriage was solemnised in a temple, the petitioners’ fundamental right under Article 25[41] of the Constitution has also been infringed.

VI. Intercaste Marriage: The Only Way to Annihilate Casteism in India

The Court reflected in its judgment[42] the peril of casteism – the most thorny ism which has been permeating the social fabric of Indian society since centuries and mutilating its people and institutions from within. In para 23, the Court noted that Petitioner 1 was a Hindu Kuravan – a notified Scheduled Caste community whereas Petitioner 2 belonged to Saiva Vellalar community. Whilst extolling the words of the Chief Architect of the Constitution of India, Dr B.R. Ambedkar, that “castes are antinational”[43], the Court illuminated that inter-caste marriages alone can lead to social integration and fulfilment of preambular promise of fraternity, the Court opined that the petitioners were entitled to get financial incentive as set out in Government of India’s Dr Ambedkar Scheme for Social Integration through Inter-caste Marriages, a scheme to encourage inter-caste marriages so as to wipe out the termite of casteism from India.[44]

Decision

The Court, therefore, held that the State’s intransigent refusal to register the cis-trans marriage demonstrated amateur meddling of NALSA[45] ruling and amounted to a violation of Ms Sreeja’s fundamental rights under Articles 14, 19(1)(a), 21 and 25 of the Constitution of India. Consequently, it quashed the orders of  Joint Registrar II and the District Registrar of Tuticorin and directed  Joint Registrar II to register the marriage of the petitioners. Thereby, recognising the term “bride under Section 5 HMA to be inclusive of transwoman and intersex person who identifies as woman along with cis-woman. Further, the Court directed the Government of Tamil Nadu to issue a government order to ban SRS or IGM on intersex infants and children. The Court also noted that since petitioners belonged to different castes, they were entitled to obtain financial incentives under “Dr Ambedkar Scheme for Social Integration through Inter-Caste Marriages.”[46]

Comments

The courts, being the sentinel of the Constitution on the qui vive, have the constitutional duty to earnestly advert to the enforcement and entitlement of human rights  under the garb of fundamental rights as enshrined under Part III of the Indian Constitution. Swaminathan, J. in this tremendously progressive and path-breaking pronouncement spurned all dogmas which impede human rights and dignity of a transgender person and exquisitely remarked that “this Court is not breaking any new ground. It is merely stating the obvious. Sometimes to see the obvious, one needs not only physical vision in the eye but also love in the heart”.[47]

            Further, the Court, despite unfortunately conflating sex and gender by simultaneously using male, female and third gender words together in various parts of the judgment, ventured to adopt an all-embracing approach and broke the shackles of dyadic categories of sex and gender and declared that there are people who remain outside the duality and opt to identify as neither male nor female.[48] However, it could have invoked judicial activism and creativity to lift the downtrodden transgender community from the cavernous depths of ostracisation and mockery by unequivocally issuing directions on other civil rights of transgender people viz. divorce, adoption, guardianship, succession, inheritance, inter alia, and proposing to follow gender-blind interpretation so as to apply the language of the Constitution to the lives of transgender persons. Nonetheless, it has proved to have a persuasive effect on subsequent judgments rendered by other High Courts while dealing with the rights of transgender persons. For instance, in X v. State of Uttarakhand, the High Court of Uttarakhand noted that an FIR alleging rape under Section 375 IPC and an offence under Section 377 IPC was filed by a transwoman. The Court held that “the petitioner’s right to determine her sex and gender has to be respected and honoured. The petitioner has identified herself as female, therefore, ‘she’ has to be treated as a female for all the purposes, whatsoever without any further confirmation from any authority”.[49]

            At various places, the Court has talked of bringing back the transgender and intersex people languishing in the margins back to the mainstream society. What did the Court exactly refer to as the “mainstream”? Is it where the straightforward network of masculine man and feminine women exists? Are not transgender community already in the mainstream and what is required is the transformation of mainstream society into a more progressive one? Something to ponder over.

It is pertinent to mention that the benefits of this judgment is restricted to the marriage between people only when one of them identifies as man and the other as woman since HMA validates marriage only between a bride and a bridegroom. This ruling has no implication on the issue of same sex marriage in India.

            However, the legislature has created a rather baffling incongruence between these landmark judgments and recently enacted legislation – The Transgender Persons (Protection of Rights) Act, 2019.[50] Firstly, whilst these judgments have endeavoured to confer the civil rights upon the transgender persons, the legislations completely silent on these sine qua non rights, and secondly, the Madras High Court ruled that a transwoman (or transman, as the case maybe) irrespective of whether zir has undergone SRS or not will be recognised as a woman (or man as the case maybe), however, the Act necessitates that a transgender shall be recognised as a man or a woman, as the case maybe, only pursuant to SRS and resultant certificate by the Chief Medical Officer.[51] Consequently, a transgender person accordingly to zir self-perceived gender can exercise zir right to marry only within the territorial jurisdiction of Madras High Court i.e. in the State of Tamil Nadu.

            Indian judiciary and legislature have made a remarkable progress in bestowing rights and protection to transgender community but there is still a lot to learn from recent dicta of SCOTUS,[52] Malaysian Courts[53] and African Courts[54] among others, and transgender legislations of countries like Malta, Finland, Norway, etc. In fact, Pakistan, a third-world nation, has recently enacted the Transgender Persons (Protection of Rights) Act, 2018[55] which does not require any medical or diagnostic requirement for legally recognising the self-perceived gender of a person and also grants the right of inheritance, among other rights as opposed to Indian transgender legislation. This makes Pakistan’s transgender legislation more progressive not only in Asia but globally.

            Despite the foregoing pitfalls, the Court in this significant judgment has translated the abstract right of self-perceived gender into a tangible civil right to marry and has stood as a rare case of correct application of NALSA judgment[56]. It has categorically refused to categorise people into monolithic quagmire of dual gender identity and orientation and once again set into motion the wheels of societal, judicial, and legislative discourse on other crucial civil rights for transgender people so as to completely unclip the wings of an almost utopian society for all genders and orientations.


* LLB student, Law Centre I, Faculty of Law, University of Delhi. Author can be reached at aasthakhanna0204@gmail.com.

[1] Saptorshi Das, “Vyasa’s Draupadi: A Feminist Representation”, 2(2) International  Journal of Gender and Women’s Studies 223, 223 (2014).

[2] 2019 SCC OnLine Mad 8779

[3] Act 25 of 1955.

[4] Supra Note 2. The Court has narrated the story of Aravan in para 5 in the following words:

According to the renowned writer Devdutt Pattanaik in his book “Jaya”, in the great Mahabharata war, Aravan came forward to sacrifice himself to ensure the victory of Dharma. But, he insisted that he must have a wife who will weep for him when he died. In keeping with the rules of the ritual, it was mandatory to fulfil the last wish of the sacrificial victim. The Pandavas were obliged to get Aravan married but no woman was willing to be his wife. Who would want to marry a man doomed to die at sunrise? When all attempts to get Aravan a wife failed, Krishna rose to the occasion and transitioned himself into a female form known as Mohini and married Aravan. The next day when Aravan was beheaded at dawn, Krishna wept for him as a widow. This tale of Aravan’s human sacrifice comes from north Tamil Nadu’s oral traditions where Aravan is worshipped as Kuthandavar, a form of Shiva. Aravan’s sacrifice is re-enacted each year ritually where he becomes the divine husband of all men who have womanly feelings.

[5] Shikhandi was one of the important characters in the epic of Mahabharta. She was born a female but grew up to be a male.

[6] Lord Ayyappa  is a syncretic deity born of the union between Lord Shiva and Lord Vishnu who took the form of Mohini.

[7] Supra Note 2 at  para 5.

[8] Supra Note 2 at  para 7. See also, The Spectrum Model of Sex, Gender and Sexuality, University of South Dakota, available at https://www.usd.edu/diversity-and-inclusiveness/office-for-diversity/safe-zone-training/spectrum-model (last accessed on 28-11-2020).

[9] National Legal Services Authority v. Union of India, (2014) 5 SCC 438.

[10] Supra Note 2, para 8.

[11] Article 14.—Equality before law.

[12] Article 19(1)(a).— Protection of certain rights regarding freedom of speech and expression.

[13] Article 21.— Protection of life and personal liberty.

[14] Supra Note 9.

[15] Supra Note 2, para 8.

[16]  (2017) 10 SCC 1 .

[17]  (2018) 10 SCC 1.

[18] Act 45 of 1860.

[19] Gender neutral pronoun.

[20] Res integra is a Latin word which means a question of law which has not yet been examined by the courts.

[21] Intersex people are those people who are born with neither a male genitalia nor a female genitalia.

[22] Supra Note 2.

[23] Supra Note 2, para 21.

[24] 2007 SCC OnLine Mad 141.

[25] Id., para 35.

[26] Supra Note 9.

[27] Supra Note 2 at para 19.

[28]Article 39 of the Constitution of India provides certain principles of policy which a State must follow. Clause (f) provides that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.

[29] Supra Note 9.

[30] Supra Note 2, para 15.

[31] Supra Note, para 10.

[32] Ibid.

[33] (2018) 16 SCC 368.

[34] Ibid at para 86.

[35] 2015 SCC OnLine US 6.

[36] Supra Note 15.

[37] Supra Note 2 at para 12.

[38] Supra Note 22, para 10.

[39] Supra Note 9.

[40] Supra Note 2, para 14.

[41] Art. 25.— Freedom of free conscience and free profession, practice and propagation of religion.

[42]  Supra Note 2.

[43] Supra Note 2, para 23.

[44] Ibid.

[45] Supra Note 9.

[46] Supra Note 2, paras 23 and 25.

[47] Supra Note 2, para 1, p. 2.

[48] Supra Note 2, para 24.

[49] 2019 SCC OnLine Utt 1097.  See also M. Srinivasan v. State,  2020 SCC OnLine Mad 6311

[50] Act 40 of 2019.

[51] Id., Section 7(1).

[52] Bostock v. Clayton County, 2020  SCC OnLine US SC 2.

[53] Muhamad Juzaili bin Mohd. Khamis v. State Govt. of Negeri Sembilan, 2014 SCC OnLine MYCA 543

[54] Motshidiemang v. Attorney General, 2019 SCC OnLine BWHC 1; see also EG v. Attorney General, Petitions Nos. 150 and 234 of 2016, decided on 24-5-2019 (High Court of Kenya).

[55] Act 13 of 2018.

[56] Supra Note 9.

Join the discussion

Your email address will not be published.

This site uses Akismet to reduce spam. Learn how your comment data is processed.