On 24^th April, 2019 the Madras High Court (Madurai Bench), in the case of Arun Kumar and Sreeja vs. The Inspector General of Registration & Ors. W.P. (MD) NO. 4125, was faced with a question whether a transwoman would qualify as a “Bride” under Section 5 of Hindu Marriage Act, 1955 (“HMA”). Answering in affirmative, the Court held that, the person in question “has chosen to express her gender identity as that of a woman” and that “this falls within the domain of her personal autonomy and involves her right to privacy and dignity. It is not for the State authorities to question this self determination” and therefore, “the expression “bride” occurring in Section 5 of the Hindu Marriage Act, 1955 cannot have a static or immutable meaning.”  This judgment has been a positive one and recognized the right of a transwoman under Section 5 of HMA. However, the larger question is, had she not identified herself as a woman, would the benefit under Secton 5 of HMA have been extended to her?

Similarly, on 31^st May 2019, the High Court of Uttarakhand at Nainital in X vs. State of Uttarakhand and Ors., AIR 2019 Utr 138, noted that an FIR was filed alleging rape and offense under Section 377 of Indian Penal Code. The Court held that “petitioner’s right to determine her sex and gender has to be respected and honored. The petitioner has identified herself as a female’, therefore, ‘she’ has to be treated as a female for all the purposes, whatsoever without any further confirmation from any authority.” Again, the larger question is, had she not identified herself as a woman, would the benefit under IPC be applicable to her?

The Supreme Court of India, in the case of National Legal Services Authority vs. Union of India and others, Writ Petition (Civil) No. 400 of 2012 on 15^th April, 2014 (“NALSA Judgment”) held that “Self-determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed under Article 21 of the Constitution of India” and therefore, “Self-identified gender can be either male or female or a third gender.”

After the NALSA judgment, “third gender” was introduced as a separate category for classification as gender in several forms etc. Thereafter, the Transgender Persons (Protection of Rights) Act, 2019 (“TP Act”) has been passed which also aims at ensuring that there is no discrimination against transgender persons (“TP”), they are recognized and are able to enjoy their rights like all other human beings irrespective of their gender.

However, on a close analysis of many of the laws in our country, it appears that many of them have gender-binary language. In fact, this was also observed by the Supreme Court in the NALSA Judgment. It said that, “Binary notion of gender reflects in the Indian Penal Code, for example, Section 8, 10, etc. and also in the laws related to marriage, adoption, divorce, inheritance, succession and other welfare legislations like NAREGA, 2005, etc. Non-recognition of the identity of Hijras/Transgenders in the various legislations denies them equal protection of law and they face wide-spread discrimination.” Therefore, what may come in the way of enjoyment of rights by TP is the different laws of our country and the language in these laws which may not be inclusive enough to ensure that TPs are also able to seek benefits and protection under these laws like all others. Here are some of the laws that may need an amendment to make them more inclusive so that TP Act is able to serve its purpose effectively:

1. Indian Penal Code, 1860 states that the word “man” denotes a male human being of any age; the word “woman” denotes a female human being of any age. Therefore all crimes that may be based on gender (such as Section 354 (Assault or criminal force to woman with intent to outrage her modesty), 354A – D (sexual harassment, voyeurism, stalking etc.), 375 (Rape) etc. are all focused as crimes committed by men towards women. In Anamika vs. Union of India, decided by Delhi High Court on 17^th December, 2018, Section 354A related FIR filed by a transgender person who identified herself as a woman was considered valid. In this, TPs who do not identify with either male or female gender, are not covered either as the victim or the prepatrator and are absolutely outside the perview of criminal law as far as offenses such as the above are concerned.
2. Free Education is a right governed by Right of Children to Free and Compulsory Education Act, 2009 but while referring to Section 2 (c) in which the word “child” is defined, it is stated that ““Child” means a Male or Female child of the age of six to fourteen years.” This clealy makes the provisions of this law inapplicable to those TPs who do not identify with either male or female gender.
3. In India, the inheritance of property is governed by personal laws of the respective religions and communities. For example, the Hindu Succession Act, 1956, which governs Hindus for the inheritance of both joint and separate property only recognizes male and female as a subject matter to the property rights. The terms used in the Act, such as male, female, daughter, son, etc. are restricted to binary gender. This Act currently does not include those TPs who do not identify with either male or female gender.
4. As per Sections 7 and 8 of Hindu Adoption and Maintainance Act, 1956 only a ‘male’ or a ‘female’ Hindu can proceed with an adoption with certain conditions. This Act currently does not recoginise adoption by a TP.
5. Similarly, Maternity Benefit Act, 1961 (Along with 2017 amendments) is applicable to women only and the benefit under Section 5 extending to adoptive mothers is not applicable currently to those TPs that do not identify themselves as a woman.
6. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redresal) Act, 2013, also as the name suggests is for protection of rights of women only and would need an amendment.

These rights, which are basic to binary genders, are privileges to TP that do not identify with either gender. It would be important to eventually amend these laws and few othrs to ensure that the TP Act and the NALSA Judgment are implemented in letter and spirit.

– Adv. Shivangi Prasad – Corporate Lawyer, External Member & Trainer, Head – Legal & Compliance, Partner Inclusion at Work and Sukrit Parashar, Student, Rizvi Law College, Mumbai