The Madras High Court in eastern India on Monday (22 April) made a landmark ruling guaranteeing the rights of transgender and intersex people.
It was asked to rule on whether the term ‘bride’ as per the Hindu Marriage Act also referred to a transgender woman.
Local government refused to register the marriage of Arun Kumar and Sreeja, a transwoman, from Thoothukudi in October.
It argued the couple did not meet Section 5 of the Hindu Marriage Act, as the term ‘bride’ can only refer to a woman.
But, Justice G. R. Swaminathan ruled it was valid.
‘By holding so, this court is not breaking any new ground’ Swaminathan said according to the Hindu.
‘To see the obvious, one needs not only physical vision in the eye but also love in the heart’.
The court said State authorities cannot question someone’s gender identity.
What’s more, the court issued a governmental order banning sex reassignment surgeries on intersex infants and children.
Currently, intersex children must undergo surgery to be legally recognized.
‘Parents must be encouraged to feel that the birth of an inter-sex child is not a matter of embarrassment or shame’ the court ruled.
Equal before the law
Swaminathan went further to enshrine transgender and intersex rights:
‘For too long, the transgender persons have been languishing in the margins. The Constitution of India is an enabling document. It is inviting them to join the mainstream.’
‘[Non-binary people] 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’ he ruled.
‘Discrimination on the ground of sexual orientation or gender equality, therefore, impairs equality before law and equal protection.’
Trans rights in India
Trans Indians celebrated in 2014 when the Supreme Court recognized the right to identify as a third gender in a landmark ruling.
In fact, it came four years before India finally ended its gay sex ban.
A 2018 Transgender Rights Bill passed the Lower House of Parliament last month. Lawmakers said it would enshrine more rights to the community.
But, the trans community argues it does the opposite. Activists called on politicians to halt it in the Upper House.
Activists describe it as ‘extremely problematic’.
Importantly, the bill denies the right to self identify. Officials or doctors would ‘inspect’ trans people before they could officially change gender, according to the bill.
The new bill also has no provisions to encourage integration, they argue.
It also offers no extra protection for trans Indians. Currently, charges of stalking, sexual assault, and rape, apply only to cisgender women.
But, in the run-up to general elections this year, more and more transgender Indians are assuming positions of power.
Transgender Indians will also be able to vote as a third gender for the first time.