INTRODUCTION
“She, who never knew which box to tick, which queue to stand in, which public toilet to enter She, who knew she was all wrong, always wrong. She, augmented by her ambiguity.” – Arundhati Roy
Marriage is believed to be among the most important aspect of one’s life and personality, both legal and economic. The institution of marriage has a great social significance since it enjoys certain rights and obligations like property, inheritance apart from the obvious – love. For these reasons, enforcement of marriage as a human right is important and no one should be devoid of that.
Transgenders have, since years together, faced discrimination, inequality, insults and boycotts. But times are changing, since in 2014, India broke out of its gender prison when the Supreme Court of India adopted an embracing approach to all gender and sex categories and recognized “transgender” as the third gender, extending the right of self-perceived gender upon the non-binary individuals.[1] Since then, India has seen a string of remarking judgements which tried it’s best to weave the rights of transgenders into its legal fabric. We now look at a path breaking judgement by the Madras High Court where the court adopted a liberal instead of a literal approach and normalised marriage between a transgender woman and a cis-gender man. The verdict also set up a precedent to legalise same sex marriages, restoring the transgenders’ and the LGBTQ community’s faith in the judiciary.
This comment seeks to examine the issues which arose in this case[2] and analyse whether or not the judgement was indeed a beacon of light and hope. For this purpose, the commentary first begins with the facts in brief, and goes on to mention the legal issues of the case. Subsequently, the decision and holding of the Madras High Court is critically analysed in detail.
FACTS
On October 31st, 2018, Arun Kumar got married to Srija, a transwoman at Arulmighu Sankara Rameswara Temple, Tuticorin as per Hindu customs. The temple permitted the marriage but declined to vouch for it. The petitioners submitted a memorandum to get their marriage registered, before the Joint Registrar under Rule 5(1) of the Tamil Nadu Registration of Marriage Rules in Form 1, which was refused. This decision was challenged by the petitioners before the District Registrar who in turn confirmed the decision of the Joint Registrar. This decision was then challenged before the Madras High Court.
LEGAL ISSUES
The case was decided by Hon’ble Judge G.R. Swaminathan of the Madras High Court. The judgement was delivered based on the following two issues.
- Whether the marriage was valid under Section 5 of the HMA, and in order to ascertain this, it would be vital to recognize if the word “bride” under this section encompasses within its meaning, a transgender person.
- Whether the refusal of registration of marriage on the grounds of sexual orientation or gender identity of the person has resulted in the infringement of their fundamental rights guaranteed in the Indian Constitution?
HOLDING AND ANALYSIS
The court began by stating that gender and sex are not the same. A person’s sex is determined biologically at the time of birth, but gender is not. In this regard, the Supreme Court held that Article 14 of the Indian Constitution[3] guarantees that the state shall not deny the equality of any person and everyone is equal before the law.
The law’s fundamental myth that everyone is equal before the law does nothing but reinstate inequality. Not all litigants are equal at any given time. There are some who have faced institutionalized discrimination whereas some others who have faced institutionalized racism and are seeking relief for a particular incident of a systematic problem. The court definitely examines the specific incident but nothing of the past, hence excluding the unchanging system of discrimination which the litigant has lived in, all this while.
The court held that the marriage solemnized between a male and a transwoman, both professing Hindu religion, was a valid and a legal marriage. It also expressed referring to the NALSA judgment[4] that transexuals had the right to choose their self-recognized sex. Likewise, it held that under Section 5 of the HMA[5], the term “bride” would incorporate transwomen as well.
Although the court has eventually held that the term “bride” is not inflexible and includes transwomen as well, it actually reinstates the notion that sex is permanent. This judgement is a live example of how the judiciary is capable of both – functioning to protect transgender rights while simultaneously operating within a rigid binary structure. Such type of a law and statements control the access of attaining an authentic sexual self for transgender individuals, since they uncritically accept and reinforce the notion that one can be “born in the wrong body.” This way, even though the legal system acknowledges the transgressions of it, it still preserves the gender binary system – the male and female categories, expecting individuals or transgenders to switch and choose only between these two kinds.
Indian jurisprudence relies upon fixed categories of gender and sex to decide claims which gender diverse litigants bring to the court. For example, the widely hailed judgement of NALSA began as such:
Seldom, our society realizes or cares to realize the trauma, agony and pain which the members of Transgender community undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex.[6]
This judgement wavers between biological essentialism and the right to self-determination of gender.[7] The court’s imagination is binary and as a result the litigants ought to align themselves to this rigid imagination in order to be seen and heard.
Even in progressive judgements like this and NALSA, the efforts to recognize people outside of the gender binary has only resulted in the exclusion of numerous other identities and the unfortunate reproduction of heteropatriarchy. Cases such as this which mark a significant and a bold step forward and toward the recognition of marital rights for transgender persons, somehow still remain grounded in past conservative norms.
The court further held that the fundamental rights of Ms. Sreeja, of equality before the law, of freedom of speech and expression, of protection of personal liberty and of freedom to practice any religion under Articles 14, 19(1)(a), 21 and 25 of the Indian Constitution had been infringed by the act of refusal to register her marriage by the third respondent. The court thus issued an order to quash the impugned orders and directed for the third respondent to register the marriage between the petitioners.
Since the marriage was denied registration on the basis of Ms. Sreeja’s sexuality, her right to equality under Article 14 was infringed upon. Article 19(1)(a) encompasses one’s gender identity as well which will have to be protected by the Constitution. Self determination of gender is a fundamental part of personal autonomy as well, falling within the realm of personal liberty granted under Article 21 of the Constitution. Both the petitioners profess Hindu religion and were married according to its rites and customs only to get denied for registration of their marriage infringing the fundamental right guaranteed under Article 25 as well.
Finally, the court also directed the Tamil Nadu government to issue a Government Order which would effectively ban sex reassignment surgeries of intersex children and infants. It also stated that intersex children must be given their own time and space to find and conform to their true gender identity.
One way of seeing this can be – if the ban of sex reassignment surgeries on intersex children deprives the parents of these children to have any say over how they would want their child to grow up, and questioning whether the protection of intersex children from these medically intrusive and unnecessary surgeries is such a compelling interest that it warrants and justifies the State to assume the role of parens patriae and take over the rights of the parents to make decisions on the behalf of their child.
But looking at the bigger picture, we see that doctors in developed countries like the United States are also progressively opposing the SRS on intersex infants and are advocating and supporting its postponement till the time the child becomes ready and capable of taking the decision for themselves. This approach would not only safeguard the privacy, but also the right to bodily autonomy and right to self-determination of gender.
The court’s order to issue the ban is thus a step in the right direction and should be followed by other state governments as well as at the national level. This government order is an affirmation of the notion that sexuality and gender are very personal to an individual and should be self-determined and not assigned by doctors or their parents. Adding onto it, it is also an affirmation of the idea that the traditional domination asserted over children by their parents may very well be curtailed by the State if the decision of the parents does not bode well for the welfare of their child.
CONCLUSION
The court’s intention to provide equal and fair justice to the petitioners was absolutely well and in good faith. But this does not change the fact that somewhere, courts still tend to run on past, conservative norms.
The decision of the court to include transsexuals who identify themselves as women under the term “bride” is surely inclusive for that category, but excludes numerous other gender identities. The court’s stance on the infringement of the fundamental rights of Ms. Sreeja and the decision to ban SRS was absolutely right.
However, despite positive progress, transgenders still have a long way to go before any of these rights are actualized. Public apathy and societal stigma take a long time to change since it requires a shift in the mindset of the people. For this to happen, it is necessary for our justice givers to take the initiative to move out of the conservative norms and structures of the society and only then, will justice and love prevail as Justice Swaminathan rightly said “Sometimes to see the obvious, one needs not only physical vision in the eye but also love in the heart.”
[1] National Legal Services Authority (NALSA) vs. Union of India, (2014) AIR 2014 SC 1863.
[2] Arunkumar and Ors. Vs. The Inspector General of Registration and Ors. MANU/TN/1403/2019.
[3] INDIA CONST. art 15.
[4] Supra note 1.
[5] Section 5 of the Hindu Marriage Act states that a marriage may be solemnized between any two Hindus if the bridegroom has completed the age of twenty-one years and the “bride”, the age of eighteen years at the time of marriage.
[6] Supra note at 1.
[7] Dipika Jain and Kimberly M. Rhoten, Epistemic Injustice and Judicial Discourse on Transgender Rights in India: Uncovering Temporal Pluralism 26(1) J. of Human Values 30, 39 (2020).
AURTHOR :
Jea Saran
OP Jindal Global University
2nd year Law Student (BA LLB)