Rights of the Transgender Community

Rights of the Transgender Community

The first paragraph of the transformative NALSA judgement accurately represented the pain, suffering and ostracization felt by the members of transgender community when they had no legal recognition in the eyes of the law and they could not use public places such as highways, malls, workplaces and even toilets like a regular system and instead were ridiculed and sidelined in the society.

This judgement recognized that by recognizing a third gender the transgender community would be able to enjoy and take benefit of constitutional rights enshrined under Article 14,15 and 21 and live with dignity. At the same time the judgement recognizes the right of an individual to assume his/her own gender since while sex could be assigned during an individual the right to choice is an inseparable part of human and fundamental rights.

In accordance with the tenets of the NALSA judgement the transgender act also gives key definitions under sections 3 and 4 which prohibit sexual discrimination in terms of employment, workplace, receiving healthcare services, any provision of law applicable to the general public and allows for self-perceived gender identity.

The courts have recognized the rights of the transgender community to have a self-perceived gender identity and have supported the principles laid down in the NALSA judgement.

The Kerala High Court recently, allowed a transwoman, Hina Haneefa to seek admission in the National Cadet Corps. Hina had specifically challenged Section 6 of the National Cadet Corps Act which only allows male and female students from universities to enroll as a cadet in the senior division if they are above the prescribed age. The bench of Justice Anu Sivaraman noted that the Transgender Act, 2019 gives transgender persons equal rights and specifically prohibits discrimination as per section and thus NCC Act cannot ignore its provisions and following jurisprudence. The court also allowed the petitioner to enroll in the woman category while enrolling for NCC as that was her self-perceived gender identity and has undergone two SRS for aligning with her self-perceived identity.

Earlier in January, the Bombay High Court also allowed a transgender person to contest polls as a woman candidate. In the said case the petitioner had challenged the order passed by the return officer who was not allowing her to contest the village panchayat elections as a woman candidate in the woman reservation category. The court allowed the petitioner to contest the poll elections as a woman noting that since she has opted as the female gender as her self-perceived identity as well as recorded a statement in the court for the she would not switch her gender unless there is a reservation provided for the transgender category.

A major development within the idea of Hindu marriage has been observed in the judgement of the courts. In 2019 Madras High Court recognized the marriage between a man and a transgender. In the said case the first petitioner Arunkumar got married to the second petitioner as per Hindu Customs and Traditions on 31.10.2018 at the Arulmighu Sankara Rameshwara Temple however, when the parties went ahead for the registration of said marriage as per rule 5 (1)(a) of the Tamil Nadu Registration of Marriages Rules the third respondent refused to register the marriage. While the counsel from the side of the Government stated that respondents no. 1 to 3 that under Section 7 of the Tamil Nadu Registration for Marriages Act the Registrar has powers to refuse the registration of a marriage if the documents presented in front of the registrar do not meet the prerequisites of a valid Hindu Marriage. The counsel further raised the question that as per Section 5 of the Hindu Marriage Act the valid requisites of a hindu marriage can only occur between a bride and a bridegroom. Furthermore, the definition adopted by the counsel was from the Oxford Dictionary which assumed that a bride can only be a woman on the day of marriage.

The High court, disagreeing with the view of the respondents agreed with the submissions of the petitioners that the concept of the gender being binary has been made obsolete with the Nalsa judgement which also recognized that transgender is a third gender, and they have the right to decide their own sexual identity. Further mentioning that transgenders who fall within the definition of person under Article 14 and 15 of the constitution would be discriminated on, if they, while being Indian citizens are denied the protection of laws. Moreover, the court expressly mentioned that the right of self-determination of gender is deeply rooted in the autonomy of a person which finds itself under the right to life and personal liberty in Article 21 of the Indian Constitution. As such the court declared that the term bride under the Hindu Marriage Act, 1955 cannot include a gender binary interpretation and must be understood as per current standards therefore including self-perceived gender identity.

The court also mentioned that petitioner no. 2 has a right to practice the Hindu Religion as per Article 25 and since the right to marry for transgenders  has already been upheld by the Supreme Court of India therefore, petitioner no. 2’s fundamental right to profess religion has also been violated as the said marriage took place at a temple.

Finally, the court noting that Articles 14,19(1)(a), 21 and 25 of the constitution enshrining certain fundamental rights to the petitioner have been violated and thus instructed the respondents to register the marriage of the petitioners.

Although the said judgement has been passed before the institution of the Transgender Act, the principles it refers to and certain sections within the act itself could have huge implications in the field of marriage and adoption. As per the Transgender Act, 2019 which is as per NALSA principles and as per section 3, transgenders are allowed to enjoy the same privileges and opportunities of the general public as well as receive equal and fair treatment of all laws.

Taking this into account and adding the notion that definitions of bride and other gendered pronouns cannot be bound in the gender binary. With this judgement coupled with section 4 of the Transgender Act seemingly transgenders can also adopt if provisions of Hindu Adoption and Maintenance Act are examined. For describing persons who can adopt the act uses terms such as single hindu male or single hindu female and spouse. Considering that self-perceived gender identity allows a transgender person to assume his favored identity and the courts in Nalsa vs Union of India as well as Arunkumar vs Inspector General have heavily suggested that not only, not recognizing transgenders is violative of article 25 of their fundamental rights but Hindu religion does make mention of a third gender outside the system of two genders.

Another channel that transgenders can adopt is via section 2(2) of the  Juvenile Justice (Care and Protection) Act 2015 read together along with Adoption Regulation, 2017 the under which CARA has made regulations for the prospective parents to adopt. The eligibility criteria as mentioned on their website include:

● The prospective adoptive parents shall be physically, mentally and emotionally stable, financially capable and shall not have any life threatening medical condition.

● Any prospective adoptive parents, irrespective of his marital status and whether or not he has biological son or daughter, can adopt a child subject to following, namely:-

● the consent of both the spouses for the adoption shall be required, in case of a married couple;

● a single female can adopt a child of any gender;

● a single male shall not be eligible to adopt a girl child;

● No child shall be given in adoption to a couple unless they have at least two years of stable marital relationship.

● The age of prospective adoptive parents, as on the date of registration, shall be counted for deciding the eligibility and the eligibility of prospective adoptive parents to apply for children of different age groups shall be as under:- 

Age of the childMaximum composite age of prospective adoptive parents (couple)Maximum age of single prospective adoptive parent
 Upto 4 years 90 years 45 years
Above 4 and upto 8  years100 years50 years
Above 8 and upto 18 years110 years55 years

● In case of couple, the composite age of the prospective adoptive parents shall be counted.

● The minimum age difference between the child and either of the prospective adoptive parents shall not be less than twenty-five years.

● The age criteria for prospective adoptive parents shall not be applicable in case of relative adoptions and adoption by stepparent.

● Couples with three or more children shall not be considered for adoption except in case of special need children as defined in sub-regulation (21) of regulation 2, hard to place children as mentioned in regulation 50 and in case of relative adoption and adoption by step-parent.

Using the abovementioned act transgenders can seemingly adopt if they are married or prefer to adopt as a single parent. While marriage may still be challenging for many transgenders to achieve the option to adopt as single parent seems to be plausible solution if they pass the eligibility critetia set out by CARA. The term single parent is not defined under the act however, considering that the same section necessitates the consent of both spouses for married parties, a single parent can therefore be assumed to be a parent who is not in a marital relationship. This means that even people living in live in relationship can now adopt. Since there are no legal limiters on live in relationships and the courts on multiple occasions have recognized that two consenting adults can agree to live with each other, such an arrangement might seem feasible.

However, the Print in Feb reports that while the Adoption Regulations ,2017 allow single women to adopt to children there is no specific mention for same sex and transgender couples for adopting children. When senior lawyer and Activist Anand Grover sought to use the CARA helpline for clarity it mentioned that there is no such provision that allows same sex and transgender couples to adopt children. This news although recent goes against the 2015 mandate of CARA when it filed its affidavit in the Bombay High Court refuting the agenda that gays, lesbians and transgender cannot adopt children and replying that anyone can adopt children provided they fulfilled the adoption criteria set up by CARA.

While there is a rising number of judgements recognizing self-perceived gender identity in various fields, there are still many obstacles in the way of the transgender community. The first hurdle in their path was identity, the next hurdle was recognition and decriminalization of their sexual relationships and now the last hurdle seems to be the right to parenthood. While existing judgements carve out possible loopholes for this sexual minority proper guidance from courts is still needed to arrive at a better clarity for establishing their rights.