The Madurai bench of the Madras High Court on Tuesday ordered authorities to register a marriage solemnised between a man and a transwoman. The couple had approached the Madras High Court after registration authorities refused to recognise the marriage, claiming that a transwoman cannot be considered a bride as per the Hindu Marriage Act, 1956, Live Law reported.
However, the bench referred to a 2014 Supreme Court judgement that recognised transgender persons as being of the third sex, and said there can be no discrimination against them in education and employment opportunities. It also relied on the 2018 Supreme Court verdict decriminalising homosexuality.
The High Court said the Supreme Court has affirmed that Article 14 of the Indian Constitution, which grants equal rights to all citizens, applies to transgender persons also. “Gender identity falls within the domain of her personal autonomy and involves her right to privacy and dignity,” Justice GR Swaminathan observed. “It is not for the state authorities to question this self-determination of the second petitioner herein.”
Ban on sex reassignment surgeries on infants, children
The court also issued directions to the Tamil Nadu government asking it to issue an order against sex-reassignment surgeries on intersex infants and children. The court said children must be given time and space to discover their true gender identity.
The High Court’s ruling was based on a complaint forwarded by intersex activist Gopi Shankar to the National Human Rights Commission, which highlighted the practice of sex reassignment surgeries. The NHRC forwarded the complaint to the Union Ministry of Health and Family Welfare. The ministry, in its response, said that the surgeries had been done with the consent of parents or guardians.
However, the High Court called this response “strange”. “Consent of the parents cannot be regarded as the consent of the child,” the judge said. “Neither the father nor the mother can claim suzerainty over the child and in the ultimate analysis, the children are not the children of their parents.” The judgement added that the parents must be encouraged to feel that the birth of an intersex child is not a matter of shame.