Transgender people are those whose personal identity is different from the gender he or she was supposed to be born with. The term "trans" is frequently used as a shorthand for "transgender."
Persons who are transgender are people of any age or gender whose looks, personal qualities, or personality deviate from extreme notions of what men and women are perceived to be.Persons who transcend the line between males and women should be legally acknowledged as "third-sex" people, the court should have decided.
There are hundreds of transgender social and cultural groups in India, including hijras/kinnars and other transgender identities like shiv-Shaktis, jogats, jogappas, Arachis, Sakhi, and others.
Marriages and weddings are regarded as sacred events in India. Marriage is a partnership built on economic and emotional interdependence, in addition to regulating sex life. The religious rites that are held are all regarded to be an important component of the wedding. These fruits of marriage can only be enjoyed by the people who are male or female as per the notions of our society.
Transgenders are deprived of their right to marriage and face society’s opposition. The denial of marriage rights to LGBTQ+ individuals deprive same-sex couples of social and legal recognitions, as well as the state advantages enjoyed by married people.
JUDICIAL PRONOUNCEMENTS
There is a distinction between sex and gender, according to the Supreme Court. At the moment of birth, a person's sex is biologically determined. In the case of gender, however, this is not the case; gender identity is at the heart of one's personal identity, gender expression, and presentation. As a result, a transgender person who is neither male nor female falls under the definition of "person" as defined in Article 14 of the constitution and is thus entitled to the same legal protection as any other citizen of India in all fields of state activity. Articles 14, 19, and 21 prohibit discrimination based on sexual orientation or gender identity.
In the landmark judgment of National Legal Services Authority (NALSA) v. Union of India, the honourable supreme court opined that:
“Discrimination on the ground of sexual orientation or gender identity, therefore, impairs equality before the law and equal protection of the law and violates Article 14 of the Constitution of India,” the judgment adds. The court also took a view of Article 19(1)(a) and Article 21 of the Constitution to be interpreted widely and liberally and expansively to encompass gender identity, where Article 19(1)(a) ensures the freedom of speech and expression, and Article 21 guarantees the “protection of life and personal liberty.” The court questioned the state authorities for their intervention in the self-determination of a person and decided authorities could not question an individual’s “personal autonomy” to “express her gender identity.” “It is not for the State authorities to question this self-determination.”
The Court pointed out that transgender persons have the right to marry, which falls squarely within Article 21.
The Court acknowledges that under the Constitution and international law, people of the same sex are entitled to fundamental rights. It has also told state governments to set up procedures to enforce "third-party" rights and transit individuals.
The constitution of India does not explicitly guarantee the right to marry. However, article 21 of the Indian constitution is interpreted liberally to include various rights connected to the right to life. The Supreme Court in the landmark case of Lata Singh v. State of Uttar Pradesh[1] upheld the right to marry as a part of Article 21 have answered that have a person after attaining the age of majority is free to marry whoever he or she wishes.
In 2015, in the case of Obergefell v. Hodges, the Supreme Court of the United States gave same-sex couples the fundamental right to marry. In Justice K. Puttaswamy v Union of India, the Supreme Court of India held that the right to privacy extended to "the decision to enter the relationship that is the foundation of the family in our society."
MADRAS HIGH COURT HELD TRANSGENDER PERSONS RIGHT TO MARRY
Madras High Court in Arun Kumar and Another v. Inspector General of Registration and Ors[2]recognized transgender marriage under Hindu Marriage Act, 1956.
The judgment was delivered for a case where a Tuticorin couple, Arun Kumar and Srija, wanted their marriage to be registered with the state. The couple married according to Hindu traditions and wished to get their marriage registered but state officials refused to recognize their marriage. The reason cited by them for the refusal was that a transwoman (Srija) is not a “bride” as per the definition of the Hindu Marriage Act and hence the marriage cannot be registered.
“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 held.
“Transgender persons who are neither male/female fall within the expression ‘person’ and hence are entitled to legal protection of laws in all spheres of state activity as enjoyed by any other citizen of this country”- the court further added.
This ruling set the first precedent by recognizing and interpreting a transgender person’s right to marry under Article 21 of the constitution. The liberal interpretation of the term “bride” by including transgender people who identify as women will give a positive new turn to the rights and lives of transgender people.
CONSTITUTIONAL PROTECTIONS
Article 14 guarantees every individual, right to equality and equal protection before the law
Article 15 prohibits discrimination based on religion, sex, race, nationality, gender, or place of birth.
Article 21 safeguards the right to life with the human dignity of all citizens. This article is interpreted liberally and encompasses a bunch of rights like the right to privacy, right to livelihood right to health, etc. The right to marry a person of one's choice is also covered under this article and is considered its integral part.
FOOTNOTES [1]AIR 2006 SC 2522 [2](WP (MD) No. 4125 of 2019 and WMP (MD) No. 3220 of 2019)
REFERENCES
https://blog.ipleaders.in/laws-concerning-transgender-marriage/
https://www.jurist.org/news/2019/04/india-court-upholds-transgender-marriage-rights/