There are times when one feels proud to be a part of the legal profession. One such moment has come due to a recent judgment passed by a bench of the Madras High Court. The judgement was authored by J. G.R Swaminathan.
The High Court has recognized the marriage between a male and a trans woman. It has held that when both the partners are professing Hindu religion, then the marriage is to be recognized under Section 5 of the Hindu Marriage Act 1955, like any other Hindu marriage
Though a path-breaking judgment, the Hon’ble Judges were humble enough to state that;
“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 version in the eye but also love in the heart”
It so happened that Shri Arun Kumar got married to Miss Sarija in a temple as per Hindu rites and customs. The temples authorities though permitted the performance of marriage, but they declined to vouch for it or issue a certificate in this regard. When the parties approached the Government authorities for registration of marriage, the Authority also refused.
When the couple approached the High Court it was argued by the State Govt. that a ‘bride’ can only refer to ‘a woman on her wedding day. Further, they argued that the temple had rightly rejected the certificate as the bride wasn’t a ‘woman’.
The Court would have none of it. The court referred to the judgment on transgender rights in NALSA case and stated that the transgender person’s right to decide their self-identified gender has been upheld by the Apex Court already. The Court in the NALSA case noted that the existence of a third category outside the male/female binary has been recognized in the indigenous Hindu tradition from time immemorial.
Hon’ble High Court further stated that;
“Sex and gender are not one and the same. A persons’ sex is biologically determined at the time of birth. Not so in the case of gender. “
Transgender persons who are neither male/female fall within the expression person and hence are entitled to legal protection of laws.
The court also observed that often the state and its authorities either due to ignorance or otherwise, fail to recognize the identity of such persons or stop discrimination which they are made to face in society. For too long, transgenders have been made to languish in the margins.
It said
“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.”
The Court further 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 Court also noted that the state should undertake awareness programmes to de-stigmatize 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.“
The stand of the court is applaudable and takes our commitment to the constitution further. The dignity of human life, one’s privacy, and one’s right of a life partner are basic parts of an individual’s personal autonomy. This autonomy is guaranteed by the constitution, this autonomy is what we fought for in our freedom struggle. This autonomy cannot be made a plaything of the narrow-minded society, government, and political parties that come and go. The judiciary is the only institution which can be a custodian of this autonomy and a protector of the dignity of people in face of such societal, cultural and even governmental imposed discrimination.
A trans woman is a person and she enjoys equal rights. Her self-determination to find a partner and her expression to identify her gender as that of a woman is protected and is guaranteed the same recognition which is enjoyed by a male or a female (person) of the society.
A Step Forward for Human Rights
This judgment is commendable, not only for its legal reasoning but for its affirmation of the Constitution’s commitment to human dignity and autonomy. The right to marry, the right to privacy, and the right to personal autonomy are fundamental to an individual’s existence. These rights were central to India’s freedom struggle and are enshrined in the Constitution.
The judgment serves as a reminder that personal autonomy cannot be compromised by narrow-minded societal norms, government policies, or political agendas. It is the judiciary’s duty to protect these rights and safeguard the dignity of marginalized groups, including transgender persons, from the discrimination they routinely face.
Conclusion: Inviting Reflection and Action
The recognition of transgender marriages is a significant leap forward in the fight for equality and human dignity. However, much work remains to be done to fully integrate transgender individuals into the fabric of Indian society. This case highlights the importance of judicial intervention in ensuring that marginalized communities receive the rights and recognition they deserve.
What are your thoughts on this judgment? Should the government take further steps to protect transgender rights? Feel free to share your opinions or discuss how we can collectively work towards a more inclusive society.
Call to Action: Advocating for Transgender Rights
Let this judgment inspire action. Advocate for transgender rights by raising awareness, supporting inclusive policies, and challenging discrimination wherever it exists. Together, we can help build a society where every individual, regardless of gender identity, enjoys equal rights and respect.
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Deven Khanna,
Advocate,
Direct (M): + 91 – 7018469792
Office: +91 – 0177 – 2674760
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