Excerpt from Justice Chandrachud Judgment in Same-Sex Marriage Case
Some petitioners have sought a declaration that the right to marry a person of their choice applies to transgender persons. The Union of India seems to have a mixed response to this claim. On one hand, it asserts that marriage must only be between ‘biological’ men and ‘biological’ women.
On the other hand, the written submissions of the learned Attorney General state that “The issues relating to transgender persons arising out of The Transgender Persons (Protection of Rights) Act, 2019 stand on a different footing and can be addressed without reference to the Special Marriage Act.”
Before addressing the issue, it is necessary to briefly advert to the difference between sex, gender, and sexual orientation, as well as to note the development of the law in relation to transgender persons.
Sex, gender, sexual orientation
The term ‘sex’ refers to the reproductive organs and structures that people are born with. Intersex persons are those whose sex characteristics do not fit the typical notions of ‘male’ and ‘female.’ Sex and gender are not the same.
The Yogyakarta Principles describe one’s gender identity as: “each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms.”
The gender of a person may not correspond to the sex they were assigned at birth. A transgender person is one whose gender identity does not conform with their sex. Transgender people may choose to undergo hormonal therapy or surgery (commonly known as gender affirming surgery or sex reassignment surgery) to alter their bodies to make them conform to their gender. People may be transgendered regardless of whether they choose to or are able to undergo a surgery.
The term ‘transgender’ does not fully capture the rich variation in gender identities in India. Historically and socio-culturally, Indian persons with a genderqueer identity go by different names including hijras, kothis, aravanis, jogappas, thiru nambis, nupi maanbas and nupi maanbis.
Persons who are known by these names may identify as male, female, or the ‘third gender.’ Intersex persons are not the same as transgender persons. They have atypical reproductive characteristics. Intersex people may identify as male, female, or transgender.
Sexual orientation differs from both sex and gender. The Yogyakarta Principles describe sexual orientation as:
“each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.”
The sex of a person is determined by their reproductive organs and structure, their gender identity depends on their internal experience of gender, and their sexual orientation is defined by the gender of the people that they are attracted to.
The judgment of this Court in NALSA and the Transgender Persons Act
The judgment of this Court in NALSA v. Union of India (2014) recognized the right of transgender persons to be identified by the gender identity of their choice, as well as their right to full protection under the Constitution, on equal terms with any other citizen of the country. The government was enjoined to recognize what the Court termed the ‘third gender.’
The Court also noticed the absence of a suitable legislation dealing with the rights of the transgender community. It issued directions to the Union and State Governments to take steps to ensure that the transgender community was able to realize its rights to the fullest extent. The judgment in NALSA (supra) was affirmed by this Court in Justice KS Puttaswamy v. Union of India (2017) and again, in Navtej Johar v. Union of India (2018).
The judgement in NALSA (supra) was critiqued for generalizing the gender identities of hijras as belonging to the third gender alone. The directions at paragraphs 135.1 and 135.2 of NALSA (supra) must be read as recognizing the right of all transgender persons (including hijras and those who are socio-culturally known by other names) to be recognized by a gender of their choice.
In 2019, Parliament enacted the Transgender Persons Act to provide for the rights of transgender persons and their welfare. This statute proscribes discrimination against transgender persons, provides for a system by which their identity may be recognized, prescribes that the appropriate government shall take welfare measures, recognizes the right of residence and provides for the obligations of various parties with respect to their right to education, social security, and health.
It also creates a National Council for Transgender Persons. A challenge to the constitutional validity of the Transgender Persons Act is pending before a different Bench of this Court. We leave the challenge to the validity of the statute to be decided in that or any other appropriate proceeding.
During the course of the hearings, the Solicitor General advanced the argument that the Transgender Persons Act prohibits discrimination against any member of the queer community and that consequently, the queer community in India no longer faces any stigma due to their gender identity or sexual orientation. He argued that the Transgender Persons Act is a broad-based legislation which includes all persons of the queer community within its ambit.
This argument does not hold any water. The legislation applies only to persons with a genderqueer or transgender identity and not to persons whose sexual orientation is not heterosexual. This is evident from the definition of a transgender person as:
“…a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta.”
From the definition, it is clear that the enactment applies to persons whose gender does not match with that assigned to them at birth, which includes:
a. Transgender men and women;
b. Intersex persons;
c. Other genderqueer persons; and
d. Persons with socio-cultural identities such as hijras.
The word ‘genderqueer’ in Section 2(k) does not refer to sexual orientation but to gender identity. As discussed in the preceding paragraphs, gender identity is not the same as sexual orientation. The term ‘transgender’ is not commonly understood as referring to persons with a sexual orientation other than heterosexual, nor does the Transgender Persons Act use the word ‘transgender’ to include persons of a different sexuality.
The Union of India’s argument that the Transgender Persons Act applies to all queer persons including persons who are homosexual, bisexual etc. cannot be accepted. This legislation is clearly applicable only to those people with a gender identity that does not match the one assigned at birth.
It is incorrect to state that transgender persons do not face any stigma or discrimination post-2020, when the Transgender Persons Act came into force. Enacting a statute does not have the same effect as waving a magic wand. For instance, the prohibition against discrimination has not resulted in society abstaining from discrimination overnight. The ground reality is that society continues to discriminate against transgender persons in various ways.
Consistent respect for the rights of transgender persons may someday ensure that they are treated as equals (as is their right) but that day is yet to arrive. Hence, the contention of the Union of India that transgender people are no longer stigmatized in view of the enactment of the Transgender Persons Act cannot be accepted. Since the legislation does not apply to homosexual persons or persons of other sexual orientations, there is no question of such persons being free from discrimination or violence as a result of its enactment.
Pursuant to the decision in NALSA (supra), Parliament enacted the Transgender Persons Act which aims to give substance to the rights recognized by this Court in its judgment. However, no such statute was forthcoming pursuant to the decision in Navtej (supra). Although the primary issue in Navtej (supra) was whether Section 377 of the IPC was constitutional, the ruling of this Court made it amply clear that sexual orientation cannot be a valid ground for discrimination or hostile treatment.
The decision in Navtej (supra) was a clear indication of the fact that the LBGTQ community is entitled to equal treatment before law. Parliament is yet to enact a law to this effect. This Court is of the opinion that there is an urgent need for a law which inter alia prohibits discrimination on the basis of sexual orientation and gives full effect to the other civil and social rights of LGBTQ persons.
In the absence of such a law, members of the LGBTQ community will be unable to exercise their rights and freedoms to the fullest extent and will have to approach the courts for their enforcement on a case-by-case basis. This is not a desirable outcome. As in this case, courts are not always equipped to deal with all issues which are brought before them.
Even if the courts are institutionally equipped to address the grievances in the case before them, no citizen should have to institute legal proceedings for the enforcement of their rights every time they seek to exercise that right. This would be contrary to the very concept of the guarantee of rights.
Transgender persons in heterosexual relationships can marry under existing law
We are in agreement with the submission of the Union of India that the issue of whether transgender persons can marry ought to be decided separately from the issues arising under the Special Marriage Act, in relation to homosexual persons or those of a queer sexual orientation.
Parliament has recognized the rights of the transgender community by enacting the Transgender Persons Act. This Court is therefore bound to apply this statute while adjudicating the issue of whether transgender persons can marry under existing law.
The right against discrimination under the Transgender Persons Act
The right of transgender persons to equality under the Constitution and the right against discrimination was recognized by this Court in NALSA (supra). To be equal means to be able to live without discrimination. Section 3 of the Transgender Persons Act codifies the prohibition against discrimination in the following terms:
“3. Prohibition against discrimination. —
No person or establishment shall discriminate against a transgender person on any of the following grounds, namely: —
(a) the denial, or discontinuation of, or unfair treatment in, educational establishments and services thereof;
(b) the unfair treatment in, or in relation to, employment or occupation;
(c) the denial of, or termination from, employment or occupation;
(d) the denial or discontinuation of, or unfair treatment in, healthcare services;
(e) the denial or discontinuation of, or unfair treatment with regard to, access to, or provision or enjoyment or use of any goods, accommodation, service, facility, benefit, privilege or opportunity dedicated to the use of the general public or customarily available to the public;
(f) the denial or discontinuation of, or unfair treatment with regard to the right of movement;
(g) the denial or discontinuation of, or unfair treatment with regard to the right to reside, purchase, rent, or otherwise occupy any property;
(h) the denial or discontinuation of, or unfair treatment in, the opportunity to stand for or hold public or private office; and
(i) the denial of access to, removal from, or unfair treatment in, Government or private establishment in whose care or custody a transgender person may be.”
As evident from Clauses (a) to (i), this provision is a catch-all provision which seeks to eliminate discrimination against the transgender community both in public as well as private spaces. It is worded in exceptionally broad terms:
The prefatory portion of Section 3 states that “no person or establishment” shall discriminate against a transgender person. ‘Establishment’ is defined as anybody or authority established by or under a Central Act or a State Act or an authority or body owned or controlled or aided by the Government or a local authority or a Government company and includes a Department of the Government.
An establishment also means any company or body corporate or association or body of individuals, firm, cooperative or other society, association, trust, agency, or institution. ‘Establishment’ therefore includes any public or private entity, authority, or body, including any ‘body of individuals.’ Individuals are, of course, covered by the word ‘person.’
Clauses (a) to (i) of Section 3 list the spheres in which transgender persons cannot be discriminated against. They include the spheres of education, employment, healthcare, movement, property, public or private office, care and custody.
It also bars any discrimination with respect to goods, accommodation, service, facility, benefit, privilege, or opportunity which is dedicated to the use of the public or customarily available to the public.
The prefatory portion of Section 3 read with Section 2(b) delineates who the prohibition against discrimination operates against. In other words, it defines the actors who are prohibited from discriminating against transgender persons. The term ‘establishment’ has been defined in the broadest possible terms to include all manner of undertakings or groups of people.
Clauses (a) to (i) of Section 3 set forth the content of the anti-discrimination principle. They describe the actions which amount to discrimination as well as the sphere in which the discrimination operates. The actions which amount to discrimination vary depending upon the sphere they refer to and they include denial, discontinuation, unfair treatment, termination, and removal. The spheres, too, are broadly defined and extend to practically every aspect of life.
In order to establish a violation of Section 3, an aggrieved person would have to demonstrate:
a. That the person against whom they seek a remedy is either an establishment as defined in Section 2(b) or a person;
b. That they have been discriminated against in one of the spheres listed by Section 3; and
c. That the discriminatory action corresponds to that sphere (for example, a person alleging a violation of the right to movement must prove that there has been a denial, discontinuation of, or unfair treatment of that right).
Remedies for the infringement of Section 3
While Section 18 of the Transgender Persons Act stipulates that certain actions amount to offences which may attract a penalty between six months and two years as well as a fine, violations of Section 3 attract no such penalty. In fact, the Transgender Persons Act does not expressly provide for a remedy for the infringement of Section 3.
Section 8 enjoins the appropriate Government to take steps to secure “full and effective participation of transgender persons and their inclusion in society.” Since clauses (a) to (i) of Section 3 are with a view to ensure the full and effective participation of transgender persons in all arenas of life, Section 8, properly understood, tasks the appropriate Government with ensuring that Section 3 is complied with by all whom it governs.
Rule 10(4) of the Transgender Persons (Protection of Rights) Rules 2020 provides that the appropriate Government shall take adequate steps to prohibit discrimination in any Government or private organisation, or private and public educational institution under their purview, and ensure equitable access to social and public spaces, including burial grounds.
Rule 11 of these rules requires the appropriate Government to take adequate steps to prohibit discrimination in any Government or private organisation or establishment including in the areas of education, employment, healthcare, public transportation, participation in public life, sports, leisure and recreation, and opportunity to hold public or private office.
Under Section 8 read with Rule 10(4) and Rule 11, the appropriate Government has a duty not only to prevent discrimination against transgender persons (by persons and public as well as private establishments) but also to address it where it is found to take place.
Sections 10 the Transgender Persons Act inter alia requires establishments to comply with the statute. This provision places a duty on establishments to comply with Section 3 and ensure that they do not discriminate against transgender persons.
Section 11 requires establishments to set up a grievance redressal mechanism by designating a person as the complaint officer to deal with complaints relating to the violation of the provisions of the statute. Section 11 is one of the ways in which a person who alleges the violation of the Transgender Persons Act can seek a remedy. However, Section 11 only goes as far as to provide for a mechanism by which the establishment in question can be approached for a remedy.
As noticed previously, the prohibition against discrimination operates against public as well as private bodies. If a public body or actor which falls within the definition of ‘establishment’ in Section 2(b) of the Transgender Persons Act infringes Section 3, it is open to the aggrieved person to invoke the extraordinary jurisdiction of the High Courts under Article 226 of the Constitution. The High Courts are empowered to issue directions, order, or writs to any person or authority for the enforcement of the rights codified by Part III and for any other purpose.
The body which satisfies the definition in Section 2(b) must be a “person or authority” under Article 226. The High Courts may exercise their jurisdiction against a body which is performing a public duty as well.[1] While the jurisdiction of this Court under Article 32 is not as expansive as that of the High Courts under Article 226, this Court may rely on Section 3 to guide its interpretation of the law, to enforce the rights recognized by Part III of the Constitution.
Aggrieved persons may also approach the High Court under Article 226 for the issuance of a direction, order, or writ against the appropriate Government directing it to fulfil the mandate of Section 8 of the Transgender Persons Act. As discussed in the preceding paragraphs, Section 8 obligates the appropriate Government to prevent and address discrimination inter alia by private bodies.
The High Court may direct the appropriate Government to perform its duties vis-à-vis private bodies. This is no doubt an imperfect remedy and there is a need for the Transgender Persons Act to provide for a remedy for its enforcement, especially Section 3.
Harmonious interpretation of the laws governing marriage and the Transgender Persons Act
Section 3 of the Transgender Persons Act prohibits the state from discriminating against transgender persons. Section 20 of the Transgender Persons Act indicates that the statute is in addition to, and not in derogation from any other law for the time being in force. Parliament was no doubt cognizant of the statutes governing marriage when it enacted the Transgender Persons Act and Section 3(e) in particular.
The laws which govern marriage in the country specify conditions which the bride and the bridegroom must satisfy for their marriage to be recognized. This is true of personal laws as well as the SMA. The structure of these enactments also regulates marriage between a husband and a wife. They use the words “bride” and “bridegroom,” “wife” and “husband,” “male” and “female,” or “man” and “woman.” These legislations regulate heterosexual marriages in India.
Laws which are incidental to marriage such as the DV Act, the Dowry Prohibition Act 1961 or Section 498A of the IPC seek to address the hetero-patriarchal nature of the relationship between a man and a woman.
The gender of a person is not the same as their sexuality. A person is a transgender person by virtue of their gender identity. A transgender person may be heterosexual or homosexual or of any other sexuality. If a transgender person is in a heterosexual relationship and wishes to marry their partner (and if each of them meets the other requirements set out in the applicable law), such a marriage would be recognized by the laws governing marriage.
This is because one party would be the bride or the wife in the marriage and the other party would be the bridegroom or the husband. The laws governing marriage are framed in the context of a heterosexual relationship. Since a transgender person can be in a heterosexual relationship like a cis-male or cis-female, a union between a transwoman and a transman, or a transwoman and a cisman, or a transman and a ciswoman can be registered under Marriage laws.
The transgender community consists of inter alia transgender men and transgender women. A transgender man has the right to marry a cisgender woman under the laws governing marriage in the country, including personal laws. Similarly, a transgender woman has the right to marry a cisgender man. A transgender man and a transgender woman can also marry.
Intersex persons who identify as a man or a woman and seek to enter into a heterosexual marriage would also have a right to marry. Any other interpretation of the laws governing marriage would be contrary to Section 3 of the Transgender Persons Act and Article 15 of the Constitution.
In Kanailal Sur v. Paramnidhi Sadhu Khan,[2] this Court held that the first and primary rule of construction was that the intention of the legislature must be found in the words used by the legislature itself.
The terms “bride” and “bridegroom,” “wife” and “husband,” “male” and “female,” and “man” and “woman” in the statutes which regulate marriage cannot be read as governing marriages between cisgender men and cisgender women alone. Nothing in these statutes indicates that their intended application is solely to cisgender men and cisgender women.
The plain meaning of the gendered terms used in these statutes indicates transgender persons in heterosexual relationships fall within their fold. The contention of the Union of India that “biological” men and women alone fall within the ambit of these statutes cannot be accepted. No law or tool of interpretation supports the interpretation proposed by the Union of India.
The provisions on the prohibited degrees of relationship in the laws governing marriage continue to apply. The judgment in NALSA (supra) also recognized the importance of the right of transgender persons to marry. Moreover, State Governments have formulated and implemented schemes which encourage and support transgender persons vis-àvis marriage.
In Arunkumar v. Inspector General of Registration,[3] the first petitioner was a man and the second petitioner was a woman who happened to be transgender. They married each other at a temple in Tuticorin and sought to have their marriage registered by the state, which refused. They then approached the Madras High Court under its writ jurisdiction. The Court held that:
a. The expression “bride” in the HMA cannot have a static and immutable meaning and that statutes must be interpreted in light of the legal system in its present form; and
b. The fundamental right of the petitioners under Article 25 was infringed.
The Court directed the concerned respondent to register the marriage solemnized between the petitioners.
Reference
Supriya @Supriyo Chakraborty v. Union of India (2023)
[1] Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani,
(1989) 2 SCC 691; Praga Tools Corpn. v. C.A. Imanual, (1969) 1 SCC 585
[2] AIR 1957 SC 907
[3] 2019 SCC OnLine Mad 8779