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Challenges to the LGBTQ, can they really get Married?


In the Indian ancient scriptures, there has been no mention of any sort of discrimination against the LGBTQ community which primarily signals towards their acceptance as an individual in the society. In Hinduism, various references have been made indicating the same. For example, Ardhanarishvara, a synthesis of Lord Shiva and Goddess Parvati. “Transgender” is an umbrella term that includes people who are intersex are often called Shiv Shakti or Hijras. Transgenders are those people, whose gender identity is not in consonance with their biological sexual construct. The term “sex” as per Article 15 and Article 16 includes not just males and females but also those, who consider themself neither male nor female.[1] People who have undergone Sex Reassignment Surgery (SRS) to sequence their biological sex with their gender construct. Such character may develop in adolescence or might as well be present since birth.

Under Section 2(d) of THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019 "inclusive education" means a system of education wherein transgender students learn together with other students without fear of discrimination, neglect, harassment or intimidation and the system of teaching and learning is suitably adapted to meet the learning needs of such students. Teaching children in such a way would increase the chances of discrimination but also pave way for the acceptance of such children as individuals in due course of time. As per Section 4(1) of the same Act, “A transgender person shall have a right to be recognized as such, in accordance with the provisions of this Act.”

National Legal Services Authority v. Union of India[2] (“The NALSA judgment”) held that every transgender has a constitutional right to self-identify. Every individual must be guaranteed a right to gender identity as male, female, or transgender. Under Article 21, each person has the right to express their chosen gender identity. The right to life, dignity, and autonomy would include the right to one’s gender identity and sexual orientation. The right to privacy is an attribute of the right to life and equality.

It was only in the year 1860 that Transgenders were put under judicial scrutiny. There is no proof of any sort of discrimination against transgenders before the said Act was passed. Also, consensual sex was never a crime, provided it was done as a private affair.

AIDS Bhedbhav Virodhi Andolan initiated a fight for the rights of LGBTQ in the year 1994. They were actively working on spreading awareness about HIV/AIDS (by distributing condoms). The petition was not pursued with enthusiasm. The LGBTQ rights were first in vogue in 2001 when a petition was filed on behalf of the Naz Foundation with an aim to challenge the constitutionality of Section 377 (IPC) in the Delhi High Court which was followed by the NALSA judgment.

Sadly, the Supreme Court had to overturn the ruling of the NALSA judgment in Suresh Kumar Koushal v. Naz Foundation[3] The Supreme Court found that striking down Section 377 (IPC) was not under the jurisdiction of the Delhi High Court but was for the Indian Parliament to decide whether the decriminalization of homosexuality was necessary or not.

In the meanwhile, the people of the LGBTQ strata were arrested and harassed on a regular basis. They were sexually abused, to the extent that they had to encounter various traumatic experiences. In fact, most of them were forced into the streets for begging and sex work.[4] It was only in the year 2018 that the LGBTQ community went on a furor of demonstrations which led to the Supreme Court of India granting individual freedom to freely express their gender construct in Justice K. S. Puttaswamy v. Union of India[5].

In fact, a marriage solemnized between a male and a transwoman, both professing Hindu religion, is a valid marriage in terms of Section 5 of the Hindu Marriage Act, 1955, and the Registrar of Marriages is bound to register the same.[6] In Shafin Jahan vs. Asokan K.M. and Ors[7], the right to marry a person of one's choice is an integral part of Article 21. Every person is entitled to the full protection of the state without any discrimination.

Article 16 of the Universal Declaration of Human Rights guarantees men and women of full age, without any limitation due to race, nationality, or religion, to have the right to marry and have a family of their own. They are also entitled to equal rights to get access to all marital redressal procedures available.[8]

Conclusion

THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019 does not offer self-determination of transgender status.[9] Furthermore, at the present moment, India does not have a comprehensive anti-discriminative code that could safeguard the interests of the LGBTQ community other than the redressal available under Article 14, 15, and 21 of the Indian Constitution. The community does not even have sufficient electoral representation to make the desired changes. Two years have brought slight changes especially that of getting the new generation prepared for a more liberal outlook. The recent judgments have put emphasis on individuals and the autonomy they must exercise on themselves. The Indian government has also issued various guidelines to safeguard basic human rights amid the COVID-19 crisis. There's more sensitization. We can fight gender roles and discrimination based on sexual orientation. To get societal recognition in terms of getting married legally, the scope of bride and bridegroom (under The Hindu Marriage Act, 1955) should be broadened. Whereas, the Special Marriage Act makes no explicit distinction to legalize heterogeneous marriages. All we need at the present moment to socially accept people from the LGBTQ community and give them enough space to have a livelihood and not to take them to the streets into begging and prostitution.


References:


[1] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1. [2] (2014) 5 SCC 438. [3] (2014) 1 SCC 1. [4] Ondede, “A Report on the Human Rights Violations Against Transgenders in Karnataka 2014”, Available at:http://orinam.net/content/wp-content/uploads/2015/08/FINAL-REPORTON-HUMAN-RIGHTS-VIOLATIONS-OF-TRANSGENDER-PERSONS.pdf (Accessed on 22 October 2020). [5] (2017) 10 SCC 1. [6] WP(MD)No.4125 of 2019 [7] (2018) 16 SCC 368 [8] WP(MD)No.4125 of 2019, p12 [9] Section 6, THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019

~Ridha Dhawan

2nd Year, LL.B.

Punjab University Regional Centre,

Ludhiana

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