Author : Yashi Srivastava
Semester VI
BA.LLB.
S.S.Khanna Girl’s Degree College
Abstract
The transgenders struggle for the basic human rights which is provided by the constitution of India to each and every individual.. The rights, focusing on the social, legal, and political challenges faced by them globally. The persistent discrimination and marginalization within various sectors such as healthcare, education, employment, and public services, as well as the barriers to legal recognition of gender identity. The significant legal milestones and human rights victories that have contributed to the progress in transgender rights have paved a way forward . By analyzing case studies from different cultural and legal contexts, this paper advocates for comprehensive legal protections and policies that ensure equal rights, dignity, and social inclusion for transgender individuals. It underscores the need for continued activism, legal reforms, and societal shifts towards greater acceptance and understanding of gender diversity.
Introduction
Transgender is “a person whose sense of personal identity and gender does not correspond with their birth sex.”
They are people who do not associate with the sex assigned to them at birth and they have different gender identity , gender expression or behaviour.
A trans male is a man who was assigned female at birth but who identifies himself as a man. A trans female is a female who was assigned the male gender at birth who identifies on as a female.
The Transfer Of Property Act wide definition for transgender and covers all types of transgender persons.
They are people whose gender identity does not align to the gender assigned to them at birth.
Trans-man
Trans- woman
Inter-sex persons
Gender – queer persons
Cultural identities like kinner, hijra , aravani , jogta .
Historically, the transgender community has been neglected. But in India, they were recognized 3000 years ago They also find their mention in the holy Vedas.
Problems Faced by the Trans Community
There is social stigma attached to the sexual orientation of the transgenders. They are treated different from the heterosexual people.
This division has made them grossly discriminated against, to the extent of having little control over their lives, have not been able to have equal access to resources and opportunities such as in, education, healthcare, housing ,employment and so on.
Cisgender is a person whose gender identity aligns with the sex they were assigned at birth.
Historical analysis
Sanskrit is one of the oldest languages in the world .It is known to use three genders: Masculine, feminine, and gender-neutral. The concept of “tritiyaprakriti” or “ napumsaka” is an integral part of Hindu mythology , culture and folklore. The mention of Vishnu’s Mohini avatar in Vishnu Puran ,while churning of the ocean to get nectar, is a transgender .
When Rama went to exile he ordered all men and women to return to the kingdom but the transgenders( hijras) stayed back seeing their affection Rama blessed them the power to give blessing on auspicious occasions like child birth etc.
In Mahabharata there are several references to transgenders when Arjun was cursed by Urvashi he lived like a transgender dance teacher for 1 year. Shikandi the transgender man became the cause of death of Bhishma.
The Ardhanarishvara form of Shiva and Parvati is a perfect combination of purush and prakriti mentioned in Hindu Scriptures .
Marriage Rights of Transgender couples in India
The transgender persons have the right to marry in India just like any other person.
However , according to law they can only marry a person of the opposite gender. Therefore they will be permitted to marry someone of an opposite gender from their gender identity.
A transgender women can marry someone who identifies as a man ( transgender man or otherwise).
A transgender man can marry someone who identifies as a woman ( transgender woman or otherwise.)
Two transgender persons can also marry, as one of them identifies as a transgender man and the other as a transgender woman.
A transgender woman can marry a cis- man and a transgender man can marry a cis- woman.
If both the partners are of the same gender they will have to stay in a live- in -relationship as same sex marriage is not recognized in India .
The transgender couple can either marry under the personal laws like the Hindu Marriage Act or the Special Marriage Act 1954.
In India laws marriage is a legal contract between a man and a women so the transgenders cannot get their marriage registered and thus do not get any legal right.
Case – Navtej Singh Johar v. Union of India
In this case section 377 of the Indian Penal Code was abolished and paved way for legalizing sexual relationships between people of all genders.
The court decriminalized same-sex relations between consenting adults. But doing this has not legalized the marriage between LGBTQIA ++ community .
Case-NALSA v. union of India
In this case the court declared that the transgender community has the right to gender identification ,outside the gender binary terms and came up with legal protections for the third gender. It recognized the ongoing violation of rights of transgender persons under Articles 14, 15, 16, 19, and 21 of the Constitution.
The Supreme court of India in this case recognized the transgender persons as the third gender or other gender in India .
Case -Arun Kumar v. The inspector general of registration
In a landmark judgment in 2019, the Madras High Court interpreted the word bride under Section 5 of the Hindu Marriage Act and held that it includes transgender persons as well. Therefore the word ‘bride’ was not only a woman, but with this judgement, the transgenders ,intersex or a person who identifies himself / herself as a woman will also be included. Justice G.R. Swaminathan said that the word bride is not only limited to women. This interpretation has paved way for the transgender community for their marriage rights.
Even after this judgement, the government has taken no initiative to add provision related to marriage of transgenders in the 2019 Transgender Persons (Protection of Rights) Bill. The bill was introduced to give protection to the transgender community and give way to a progressive future .
Supriya Chakraborty & Anr. V Union of India
On November 14th, 2022, two same-sex couples filed writ petitions in the Supreme Court seeking legal recognition of LGBTQIA ++ marriages in India.
The petitioners argue that the Act recognized marriage only between a ‘male’ and a ‘female’. This discriminates against transgender couples by denying them matrimonial benefits such as adoption, surrogacy, employment and retirement benefits.
The petitioners argue that the non-recognition of same-sex marriage violates the rights to equality, freedom of expression and dignity.
The Supreme Court of India held that there is no unqualified right to marry under the Constitution and also upheld the constitutional validity of Sec 4 the Special marriage Act and said that only heterosexual couple have right to marry
Transgender couples in India
In Bengal a 38 years old Tista Das married a 40-year-old Dipan Chakraborty making them the first transgender couple to marry. .They were referred as the state’s first “rainbow wedding”,Tista, originally born as Susanto, underwent a sex change around 15 years ago.
A transgender couple from Kerala became the first in India to have a biological child. Ziya Paval was born a man, and her partner, Zahad, who was born a female, conceived when they were going through hormonal therapy to change their sex They approached high court so that instead of ‘mother’ and ‘ father’ the birth certificate should have ‘ parent’ written. But it was denied because there is contradiction in a male giving birth to a child, the petitioners requested modification in the child’s birth certificate.
Under the Mohammad law the transgenders do not get any right to marry as bearing a child is an important part of marriage which is not possible in this case.
Adoption by Transgender couple in India
Though the Adoption laws promote equality and provide a supportive environment for children’s regardless their parent’s sexual orientation, the adoption by transgenders is viewed as unstable for the society
The Hindu Adoption and Maintenance Act of 1956 and the Juvenile Justice (Care and Protection of Children) Act of 2015 both regulate the adoption process in India. According to them only straight couples (a man and a woman) and single people are currently allowed to adopt children in India. However, after landmark judgements like Navtej Singh v. Union of India the transgender people are acknowledged as the third gender. After this tremendous progress has been made in recent years towards equality for the LGBTQIA+ community. Despite these developments, there is still no consensus about the acceptance of same-sex marriage and adoption rights for LGBTQIA+ people.
In India the laws does not explicitly allow or prohibit the transgenders from adopting ,so they can adopt under the Juvenile justice Act or Hindu Adoption and Maintenance Act .
The Transgender Persons (Protection of Rights) Act gives transgender people the right to adopt, but there is no explicit law that permits same-sex couples people to adopt a child.
Article 21 guarantees the fundamental right to begin a family and have children cannot be curtailed by making a inadequate provision.. Previously adoption by same-sex couples was forbidden under discriminatory provisions in the Juvenile Justice (Care and Protection of Children Act). But it was amended to make the child’s interests the top priority during the adoption procedure. Though the amendment is a step for a better future by there needs to laws that guarantee the equal right to Adoption to the transgender under Article 14.
To allow adoption by a transgender couple remove heteronormative words from adoption laws and use gender neutral terms which could incorporate transgenders couples as well. It would stop discrimination against transgender people who want to adopt children .
Maintenance Rights of transgenders in India
According to Indian law a transgender person is entitled to maintenance . The minor transgenders have right to maintenance from their father and mother as any other person.
Bombay high court in its verdict held that a transgender who has become a woman by undergoing gender reassignment surgery can seek relief under the Protection of Women from Domestic Violence Act, 2005 and awarded a maintenance of Rs. 12000 every months to the women .
Justice Borkar also opined that the word ‘woman’ in section 2(a) should not be limited to women only but should include a person who changed his sex to become a woman.
The Transgender Persons (Protection of Rights) Bill was introduced in Lok Sabha in the year 2016. This bill talks about the right of residence for the community but does not talk about their inheritance rights. They are not recognized as coparceners in their parents property.. The maintenance can be determined by marital status, financial dependence, and family responsibilities, irrespective of gender.
Under the Uttar Pradesh revenue code the transgenders have right to have succession of the land as a tenure holder. This is a progressive enactment.
FREQUENTLY ASKED QUESTIONS
Are the transgenders recognized as third gender ?
Yes the transgenders are recognized as third gender after the landmark judgement of NALSA v Union of India.
What are the problem faced by transgender community?
The transgenders face social stigma , they are considered outcast. They face discrimination , violence and widespread prejudice.
Does a transgender have a right to marry?
A transgender person can marry in India but there is no specific Act or law that governs such marriage and thus it is not legally recognized.
CONCLUSION
In the fast changing world, it is high time that we recognize that each and every person has a right to life and personal liberty as a natural and as a fundamental right Article 21 of the Indian constitution .
It’s crucial for transgender individuals to be aware of their rights and seek legal counsel or support from advocacy organizations if needed, especially when navigating maintenance issues in foreign countries. Additionally, laws and social attitudes can change over time, so staying informed about the latest developments is essential.
The recognition and protection of transgender rights in the context of marriage, adoption, and maintenance is a critical step towards fostering a more inclusive and equitable society. Every individual, regardless of their gender identity, deserves the right to love, marry, and build a family without discrimination. Furthermore, ensuring access to necessary legal mechanisms for maintenance is vital in providing transgender individuals with the economic security they need to thrive.
