The marriage between a cisgender man and a transgender woman on Monday received the blessing of the Madras High Court, in a manner of speaking. Sitting at the Madurai Bench, Justice GR Swaminathan observed,

“A marriage solemnized between a male and a transwoman, both professing Hindu religion, is a valid marriage in terms of Section 5 of the Hindu Marriage Act, 1955 and the Registrar of Marriages is bound to register the same.

By holding so, 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.”

The Court had been moved by Arunkumar and Srija after the state authorities refused to register their October 2018 marriage. In this case, Srija was a transgender woman. While she had been born intersex, she had identified herself as a woman, which was also reflected in her state IDs.

The government authorities took the stance that the marriage between Arunkumar and Srija could not be recognised as Srija is a transgender person. This was interpreted by the authorities to mean the Srija is not a woman.

Justice Swaminathan, however, disagreed emphatically, particularly in view of the Supreme Court’s 2014 NALSA judgment which had recognised the self-identification rights of transgender persons. He states in his judgment,

“I am unable to agree with the stand of the learned Government Advocate … As rightly pointed out by the learned counsel appearing for the writ petitioner, the issue on hand is no longer res integra. In the decision reported in (2014) 5 SCC 438 (National Legal Services Authority vs. Union of India), the Hon’ble Supreme Court upheld the transgender persons’ right to decide their self identified gender. The central and State governments were directed to grant legal recognition of their gender identity such as male, female or third gender…

…When the right of the transgender persons to marry has been upheld by the Hon’ble Supreme Court, in the very nature of things, they cannot be kept out of the purview of the Hindu Marriage Act. One can have a civil marriage. One can also have a sacramental marriage…”

Sex and Gender are not the same

Recalling the principles affirmed in the NALSA judgment, Justice Swaminathan proceeded to observe,

“Sex and gender are not one and the same. A person’s sex is biologically determined at the time of birth. Not so in the case of gender…the Hon’ble Supreme Court held that Article 14 of the Constitution of India which affirms that the State shall not deny to “any person” equality before the law or the equal protection of the laws within the territory of India would apply to transgenders also.

Transgender persons who are neither male/female fall within the expression ‘person’ and hence entitled to legal protection of laws in all spheres of State activity as enjoyed by any other citizen of this country.

Discrimination on the ground of sexual orientation or gender identity, therefore, impairs equality before law and equal protection of law and violates Article 14 of the Constitution of India. Article 19(1)(a) and Article 21 were expansively interpreted so as to encompass one’s gender identity also.”

It was noted that the NALSA judgment was also cited with approval in the Right to Privacy case as well as Navtej Johar’s case concerning the decriminalisation of homosexuality in India.

Coming to the instant case, the Court pointed out that after Srija identified herself as a woman, the state does not have the power to deny her of that identity.

“In the case on hand, the second petitioner herein has chosen to express her gender identity as that of a woman. As held by the Hon’ble Supreme Court this falls within the domain of her personal autonomy and involves her right to privacy and dignity. It is not for the State authorities to question this self determination.”

“Bride” under Hindu Marriage Act includes transwomen

The Court went on to reject the State’s contention that a transgender woman could not be viewed as a “Bride” under the Hindu Marriage Act.

“The expression “bride” occurring in Section 5 of the Hindu Marriage Act, 1955 cannot have a static or immutable meaning. As noted in Justice G.P.Singh’s Principles of Statutory Interpretation, the court is free to apply the current meaning of a statute to present day conditions. A statute must be interpreted in the light of the legal system as it exists today…

… Seen in the light of the march of law, the expression “bride’ occurring in Section 5 of the Hindu Marriage Act, 1955 will have to include within its meaning not only a woman but also a transwoman. It would also include an intersex person/transgender person who identifies herself as a woman. The only consideration is how the person perceives herself.”

Transperson’s right to marry has been recognised by the Supreme Court

The Court further pointed out that the Supreme Court has specifically recognised the right of marriage for transgender persons in paragraph 119 of the NALSA judgment. Moreover, the right of persons to marry a person of choice has also been specifically endorsed in Hadiya’s case, the High Court judgment highlights.

The Court proceeded to remark,

“For too long, the transgender persons/intersex people have been languishing in the margins. The Constitution of India is an enabling document. It is inviting them to join the mainstream. Therefore, it would be absurd to deny the transgenders the benefit of the social institutions already in place in the mainstream.“

In view of these observations, the Court allowed the writ petition and directed the state to register the marriage of the petitioners.

Further, the judge also pointed out that the marriage in the case was an inter-caste marriage. Therefore, the petitioners were also eligible for benefits provided by the state to encourage inter-caste marriages under the Dr.Ambedkar Scheme for Social Integration through Inter- Caste Marriages.

Issue GO against forced Sex Reassignment Surgery (SRS) on Intersex children

While dealing with the case, Justice Swaminathan also took note that the Supreme Court’s mandate against forced surgical procedures on intersex children was being observed more in breach than compliance. As observed in his judgment,

” [intersex children] must be given their time and space to find their true gender identity. But the parents make the infant undergo sex reassignment surgery (SRS)…

…the Hon’ble Supreme Court in NALSA case categorically stated 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. But, what is happening in reality is more in breach of this judgement given by the Hon’ble Supreme Court.“

He went on to observe that a particular gender cannot be forcibly thrust on non-binary persons.

“A person who is in the Third Category is entitled to remain beyond the duality of male/female or opt to identify oneself as male or female. It is entirely the choice of the individual concerned.”

In view of the same, the Court has now directed the Tamil Nadu government to issue a Government Order to uphold the NALSA judgment and to “effectively ban sex reassignment surgeries on intersex infants and children.” The government is expected to submit a compliance report regarding this same within eight weeks.

The Court also noted that the state should undertake awareness programmes to de-stigmatise the birth of intersex children.

“The parents must be encouraged to feel that the birth of an intersex child is not a matter of embarrassment or shame. It lies in the hands of the Government to launch a sustained awareness campaign in this regard.“

In this backdrop, the Court also expressed its appreciation for recent Tamil films that involved transgender characters.

“Recent Tamil Films such as “Peranbu” where Mamooty marries a transgender and “Super Delux” where Vijay Sethupathi plays the role of a transgender and is also a parent to the child he has fathered are encouraging trends”, remarked Justice Swaminathan.

Before parting with the matter, Justice Swaminathan also expressed gratitude to intersex activist Gopi Shankar from Madurai, noting that his work has had been a humbling and enlightening experience for the Court.