Author: Yashashvi Malik, Chandigarh University
Abstract
Gender identity refers to an individual’s personal understanding of their gender, which may or may not align with the sex assigned at the time of birth. It may correspond to being male, female, both, or neither. The term “gender identity” was first coined by Robert J. Stoller in 1964 and later popularized by John Money.
Gender expression, on the other hand, is how a person presents their gender to society—through appearance, behavior, and roles. It is an outward reflection of their internal identity.
Traditionally, parenthood has been defined in binary terms—mother and father—based on biological connections. A child’s biological parents are those whose DNA the child carries. However, legal parenthood does not necessarily require a biological connection; it is governed by law and can arise from relationships such as adoption.
This rigid binary understanding of parenthood is increasingly being challenged in today’s evolving social and legal context. India, in particular, has made significant progress in recognizing transgender rights, especially after the landmark NALSA v. Union of India (2014) judgment.
However, the legal recognition of transgender individuals as parents remains an underexplored and overlooked domain.
This article discusses the evolution and present status of transgender parenthood in India, highlights the significance of the recent Kerala High Court judgment, and examines the legal complexities involved.
Legal Background
Before the NALSA v. Union of India (2014) decision, transgender individuals in India were largely invisible in the legal system, with little acknowledgment of their rights. In this landmark case, the National Legal Services Authority petitioned for the legal recognition of transgender persons as a distinct “third gender.”
The Supreme Court recognized the fundamental right of transgender persons to self-identify their gender, emphasizing that gender identity is a matter of personal perception, not limited to biological or physical attributes.
The Court invoked Article 21 (Right to Life and Personal Liberty) of the Constitution to uphold the dignity of transgender persons and declared gender identity as an integral part of personal dignity and autonomy. It also clarified that Articles 14 (Right to Equality) and 19(1)(a) (Freedom of Expression) are gender-neutral and protect the rights of transgender individuals.
Furthermore, Articles 15 and 16, which prohibit discrimination on the grounds of “sex,” were interpreted broadly to include gender identity, not just biological sex. This interpretation laid a constitutional foundation for the legal recognition and protection of transgender individuals in various spheres of life.
Transgender Persons (Protection of Rights) Act, 2019
To address the challenges faced by transgender individuals and promote inclusivity, Parliament enacted the Transgender Persons (Protection of Rights) Act, 2019, which came into effect in January 2020. The Act aims to ensure equality, dignity, and access to opportunities for transgender persons.
While the Act is a positive step forward, it remains silent on the issue of transgender parenting. It does not provide guidelines on how transgender parents should be represented in legal documents, nor does it introduce a gender-neutral term such as “parent.” This gap leaves transgender parents in a legal grey area when it comes to documentation and recognition.
The Kerala High Court Judgment: A Landmark for Transgender Parenthood
A transgender couple, in may 2024 approached the Kerala High Court to seek an update in respect of their gender identity on their child’s birth certificate. The child was born naturally, and the couple wanted to ensure that their gender identities, as reflected in official documents, would not lead to discrimination or issues in the child’s future.
Court’s Observations
• The Court upheld that Article 21 of the Indian Constitution also includes the ‘right to live with dignity’, which extends to the recognition of gender identity in official documents.
• It emphasized that parental roles are not gender-specific, and parenthood is defined by love, care, and responsibility, not by gender.
• Recognizing gender identity in documentation was found to be in the best interest of the child, ensuring emotional security and legal clarity.
• The Court directed the appropriate authorities to update the gender markers of both parents in the birth certificate and instructed the government to frame gender-sensitive policies.
Relevant Case Laws
1. Arunkumar & Sreeja v. Inspector General of Registration (2019)
In this case, Arunkumar ( male) married to Sreeja who was a transwoman, and the marriage was performed according to Hindu rites. When they attempted to register the marriage, the Registrar refused, citing that a “bride” under Section 5 of the Hindu Marriage Act (HMA) referred only to a biological woman.
The Madras High Court held that marriage as a valid marriage, between a man and a transwoman as performed according to Hindu customs and law. It reaffirmed that transgender individuals have the right to self-identify their gender and that such identity must be respected under personal laws.
2. Justice K.S. Puttaswamy v. Union of India (2017)
A nine-judge bench of the Supreme Court declared that the right to privacy is a fundamental right under Articles 14, 19, and 21. The judgment emphasized that personal decisions related to marriage, family, procreation, and sexual orientation fall within the domain of privacy and dignity.
The Court cited the NALSA judgment, stating that gender identity is a core component of personal autonomy and privacy.
3. Navtej Singh Johar v. Union of India (2018)
In this landmark case, the Supreme Court decriminalized consensual same-sex relationships by reading down Section 377 of the IPC. The Court ruled that the provision violated the rights to equality, dignity, personal liberty, and privacy of LGBTQ+ individuals.
The judgment affirmed that individuals have the right to choose their sexual orientation and relationships without fear of discrimination or criminalization, laying the groundwork for broader recognition of queer relationships, including parenting rights.
International Practices
1. Germany: Since 2024, Germany has been regulated by the Self-determination Law which provides protection against discrimination on the basis of gender identity and sexual orientation. Moreover, Germany had banned the discrimination in the sector of goods and services and employment from a long period of time.
2. Argentina: It is the most progressive country in respect of recognition of gender identity. In 2012, Argentina passed a comprehensive Transgender right Laws, which promotes and protects gender identity without any discrimination.
3. Canada: In Canada, the Transgender’s right including protection from discrimination or any legal gender changing procedure vary among different states and territories. Many territories offer Parent 1 and Parent 2 options irrespective of gender.
Challenges and Implementation Gaps
Despite judicial progress, transgender parents continue to face several systemic and societal challenges:
1. Lack of Uniform Policy:
There is no centralized law or policy guiding the update of parental identity after a gender transition.
2. Bureaucratic Delays and Discrimination:
Officials often delay or deny applications due to personal biases or reliance on outdated administrative forms.
3. Social Stigma:
Transgender parents and their children may face social exclusion, bullying, and denial of services such as school admissions.
4. Rigid Documentation Systems:
Government databases like Aadhaar, PAN, and birth certificates are not always updated or synchronized to reflect gender changes.
Recommendations
1. Legislative Reforms: – Parliament must amend the Registration of Births and Deaths Act, 1969 and must include a gender-neutral category such as “parent.” Furthermore, some explicit provisions shall also be enacted in the act which may recognize transgender parenthood..
2. Judicial Advocacy: -Encourage rights-based, child-centric interpretations in future cases concerning transgender parents.
3. Administrative Changes: -Develop an integrated online system to update gender identity across all public documents.
Issue guidelines to hospitals, schools, and administrative offices for inclusive data collection and treatment of transgender individuals.
3. Social Reforms: Promote gender diversity education in school curriculum from early age.
Launch various campaigns and social awareness programs to reduce stigma related to transgender.
Conclusion
The Kerala High Court’s judgment is a significant milestone in India’s journey toward full legal recognition of transgender individuals in family life. By affirming that parenthood is not confined to traditional gender norms, the Court has paved the way for a more inclusive legal system rooted in dignity, equality, and love.
However, one progressive judgment is not enough. Legal reforms, policy changes, and social acceptance must follow. True parenthood—regardless of gender—must be acknowledged, celebrated, and protected both in the eyes of the law and in the hearts of society.
Legal and social recognition of gender identity is not only a matter of dignity, but it also has direct consequences on child well-being. Recognition of one’s gender identity reduces discrimination for transgender parents and their children.
FAQS
Q1. What is Gender Identity?
Ans: Gender identity is a personal understanding of an individual’s feelings regarding their gender, which may or may not align with the sex which was assigned at the time of the individual’s birth. It can be male, female or what the person perceives or feels.
Q2. What is gender expression?
Ans: Gender expression is how a person feels, perceives or expresses themselves in the society by their dress, appearance, words, gestures etc.
Q3. How can recognition of gender identity affect child well-being?
Ans: Recognition of gender identity particularly for transgenders can significantly impact child well-being by reducing social bullying and stigma, making stronger family bonds, legal clarity and access to rights, protection from State intervention.
