Johann Wolfgang von Goethe said, "I am who I am, so I accept who I am." In the
same way, philosophers held, "No one will escape their individuality.
Self-expression is one of the most significant and necessary aspects of a
The term gender would generally denote to something of mere sexual identity of a
person. Physically, ever since, people identified themselves with either of the
two genders that are assigned to them at birth i.e., male and female. But later
on, people started identifying themselves to be someone outside the ambit of
traditional classification, based on their inner sexual feelings rather physical
It was not that long that an individual began to perceive oneself to
be a someone different who isn't the part of classical gender classification. We
term it as cisgender. We are prejudiced by the messages we receive from our
social surroundings about what is acceptable and permissible for everyone to
either do or not to do, be and perform based on the gender with which we
The term cisgender refers to being what we think of as
normatively gendered. Man or woman, masculine or feminine, and aligned with the
assignment of sex that we were given at birth, taking into consideration the
The abbreviation 'LGBTQ' has so many interpretations. One of the prominent ones
is - Lesbian, Gay, Bisexual, Transgender and Q may be assigned to Queer
sometimes and is read for Questioning.
The word lesbian is an expressive term which is used to refer women who endures
oneself with other women in physical, sexual, romantic, and affectional
Gay is an adjective that is being used to describe people who endures for above
mentioned attributes with people of same sex and gender.
People who looks on to both men and women for fulfillment of their various
feelings of attraction are generally called as bisexual.
Transgender is a person who identifies himself or herself with the opposite
gender than what is usually assigned to them at birth according to their
physical appearance i.e., not identifying with culturally conventional gender
roles and categories of male or female.
The term 'transgender' is derived from Latin words 'trans' which means
'across/beyond'. Whereas, gender is a compound word which denotes and divides
people into several categories taking into consideration their physical
attributes., according to the World Health Organisation, Gender refers to "the
socially constructed features of women and men - such as norms, and roles and
relationships of and between groups of women and men." Therefore, a transgender
is an individual who is beyond the socially and culturally defined difference
between men and women.
In India, there is a wide range of individualities related to transgender
people, including Hijras, Aravanis, Kothis, Jogtis / Jogappas, Shiv Sakthis. In
the past, they have received great esteem.
is a Persian word deciphered
as eunuch and is used as the common language of the transgender community in
India. Kothi is used to play female roles in same-sex relationships, but not
people who live in communities like Aravanis. Jogtis / Jogappas found in
Maharashtra and Karnataka is male to female transgender persons who are
dedicated to serving definite gods. Shiv Shakti's who are found Andhra Pradesh
is a man who contemplates he is married to a god, especially Shiva. They usually
toil as psychotherapists or astrologers.
Rights of Transgenders in India
The Indian Constitution cherishes notions of justice-socially, economically and
- Article 14 of the Indian constitution offers for right to equality.
- Prohibition of discrimination on the grounds of religion, caste, sex,
place of birth and nationality is guaranteed by Article 15.
- Article 21 promises the right to privacy and personal dignity to all its
- Article 23 forbids human trafficking and other modes of forced labour.
Moreover, the Universal Declaration of Human Rights offers that all people,
irrespective of sex, sexual orientation or gender distinctiveness, are entitled
to enjoy the protections given for by international human rights law, as well as
in respect of rights to life, security of person and secrecy, the right to be
free from torment, uninformed arrest and detention, the right to be free from
discrimination and the right to freedom of expression.
However, the sad truth is
same that despite the presence of ample rights to protect and safeguard the
human rights of transgenders both globally and in the Constitution of India,
they remain unenforced.
Problems faced by Transgenders:
They are often subjected to lot of discrimination and are jeopardized in almost
every place. People though recognized themselves to be a part of transgender
community, revolve round and round in the same fear of openly expressing one's
sexual identity i.e., the sex that they identified themselves into apart from
the conventional ones. In countries like India, religion and culture make it
difficult for one to accept such people. Transgenders, commonly termed as
Hijra's in India are prune to disrespect and abuse.
Prejudices of people make them to think that transgender people are different
and odd. The very primary quandary that they face is from the circle of family,
relatives, friends and colleagues. Starting with the family, having such member
is considered as degrading their family status out in the society. They are
ill-treated and get thrown out of their family. From there on, trans people
begin to encounter several hurdles.
The educational institutions do not give
them an admission into, no company offers them a job, and they find it very
difficult to even find a residence for themselves. Families view homosexuality
as shameful. People in the epicene community are beheld down upon all the time.
Mere involuntary sexual orientation should not decide their fate and force them
to travel a long road of discrimination and hatred throughout their life. Being
a transgender is not a 'problem', nor is it a 'choice' as such.
So, when normal men and woman are given or conferred right to live harmoniously
with human dignity in the society, then why people of transgender community are
Article 15 of the Indian Constitution ascertains that no person shall be
discriminated based on their region, religion, caste, gender and so on. Hence
the legislature and executive wings of the country must ensure the drafting and
passing of a bill that would exclusively work for the protection of people of
There are even several steps that had already been taken
to ensure dignified living for LGBTQ. Various state governments are providing
them with reservations in educational institutions, at workplaces, and were also
been given pensions. This is a major breakthrough. The honourable supreme court
of India also have legalised the marriage of homo-sexual thus repealing the
long-standing section 377 of the Indian Penal Code.
But this isn't sufficient. There are also several other issues that still remain
unresolved. One such area that requires the attention is regarding the formation
of personal laws that govern the matters of marriage, adoption, divorce, etc.,
Transgenders and Personal Laws:
The honorable Supreme Court of India have addressed several issues pertaining to
the transgender community in National Legal Services Authority v Union of
India case. The learned judges ruled out that the people of transgender
community must be recognized as a third gender in the traditional gender
classification. The court also stated that they (trans) should enjoy all
fundamental rights as every other citizen of this land would do and must be
protected from several types of discrimination.
Justice K. S. Radhakrishnan, on behalf of the bench have ordered the state to
recognize the right of transgenders to decide their personal identity. The bench
asked the government to make certain specific benefits for them in areas of
education and employment. The supreme court have also made it clear that anyone
insisting any person to undergo the Sex Reassignment Surgery (SRS) for declaring
one's gender identity is illegal and unethical.
The above case was a major break-through for people belonging to transgender
community. Though it opened a gateway for recognition of their rights, the rigid
Indian society is hastening this process. People do not accept them to be a part
of the very society like they are. In this case, the apex court has divided the
transgender community into two primary categories.
The first grouping as listed out by the Supreme Court is normally referred to as
transsexuals. It is essentially composed of those individuals who wish to go for
a permanent transition of the gender that they identify themselves with. The
term transsexual denoted to people who had undergone medical procedures, such as
gender-affirming surgery, to match their gender individuality and physical
They create a subset of the transgender community whose sense of
variance between their gender identity and assigned sex is very strong.
Moreover, they are firm that they belong to the gender opposite (on the gender
spectrum) to their assigned sex. In NALSA judgement, the honourable Supreme
Court recognised the constitutional right of the transsexual people to
categorize with their transitioned identity, i.e., their gender identity in the
Third GenderThe transgenders who discard both male and female as the normative gender
categorizations constitute the subsequent sub-set of the transgender community.
In the Indian subcontinent, these third genders have presumed a distinct
identity due to their behaviour, characteristics, and appearance. Thus, this
category is composed of a wide range of transgender-related personalities,
cultures, and experiences.
In India, traditionally and popularly, queer
identities such as Hijras etc., are being recognised as third genders.
Another notable case is Navtej Singh Johar v. Union of India which abolished
S. 377 of the Indian Penal Code and paved way for legalizing sexual
relationships between people of all genders. After this judgement, the resulting
step for the community was to ask for a law that would allow them to enrol their
marriage under the law, thereby authorizing the concept of third-gender
marriages. However, that has not been the case yet.
Position Of Transgenders In Family Law:
The Madras High Court has delivered a landmark judgement in Arun Kumar and
Another v. Inspector General of Registration and Ors
The petitioner Arun Kumar has married a transwoman, namely Sreeja at a place of
worship following the ceremonies and customs of Hindus on 31st October 2018.
Later, both of them in pursuit of registration of their marriage have submitted
several documents to the Tuticorin Joint registrar. But he refused to do so.
Therefore, the petitioners challenged the refusal of joint registrar before the
District Registrar on 16th November 2018. The District Registrar has thus
affirmed the decision of his subordinate on 28th December 2018. It is then that
this case was brought to the Madras High Court.
Contentions of the petitioner:
- Given that Sreeja being a transwomen, does the term 'bride' as in Section
5 of the Hindu Marriage Act (HMA) include transgender people or only women?
- Did the act of refusal of both Joint and District Registrars to enlist
their marriage infringe his/her fundamental rights guaranteed under Article
14, 19(1) (a), 21 and 25 of the Constitution.
The petitioner has contended that the term bride in HMA has a broader scope and
thus also include the transwomen in it. And, that both the Registrars have
encroached on their basic fundamental rights by refusing to register their
Contentions of the Respondent:
The Government advocate for the State of Tamil Nadu has defended the decision of
both Registrars on the below two ground:
- The first being that the Registrar according to the Tamil Nadu Registration of
Marriage Act, 2009, can refuse/decline to enlist a marriage if he reasonably
believes that the marriage was not performed under their personal law or custom.
In the present case, he said, that the temple authorities did not affirm the
happening of the marriage.
- The second ground is regarding the validity of such marriage under HMA. The
council for state contended that the term 'bride' and 'bridegroom' were used in
HMA just to express the minimum age that the parties must have. The council said
that the meaning of 'bride' is a "woman on her wedding day". As Sreeja is a
transsexual and not a lady, she could not be a bride under the HMA. Therefore,
this marriage was not solemnized according the provision of the HMA.
The Hon'ble Judges opined that both sex and gender are two different things and
one cannot be substituted for the other. The court expressed that the marriage
which is solemnized between a male and a transwomen, both following Hindu
religion, is a valid marriage. The court on referring to the cases of NALSA v
Union of India
, Justice K. Puttaswamy v Union of India
 and Navtej Sing
Johar v Union of India
 expressed that people who recognize themselves as transgenders have their own right to choose their self-recognized sex as
adjudicated by the Supreme Court. Further, the court said that the term 'bride'
in HMA must deciphered according to the needs of present society and it cannot
Therefore, it also includes transwomen apart from the conventional
gender. The Court at that point referred to Article 16 of the Universal
Declaration of Human Rights, which incorporates the option to wed as common
liberty just as Shafin Jahan v Asokan K.M. and Ors.
 where one's preferred
option to wed an individual was held to be fundamental to Article 21 of the
Constitution of India.
The court thus said that the act of refusal to enlist their marriage by the
Registrars amounts to the encroachment of the fundamental rights guaranteed to
every individual by the constitution of India.
Applicability of personal laws to Trans people:
In light of the NALSA case, the applicability of existing personal laws to
people of different religions needs to be discussed for both of the above
classified divisions of transgenders.
But this is not the same for everyone. Not all transgenders would let themselves
get recognized as third gender people legally. Hence, for those who have
maintained their legal status the same as their assigned sex can marry someone
from the opposite sex (opposite to their assigned sex) and get the marriage
validated under any of the personal laws.
Transsexuals:Every marriage act, be it the Hindu's, Muslim's, or the special marriage act,
the pre-requisite for consideration of a marriage as legal, the primary
pre-requisite is that the parties to the marriage must be of opposite sexes and
should identify themselves as the bridegroom and bride i.e., male and female.
With special reference to Mahomedan marriage, being a marriage of contractual
nature, the primary aim of such marriage is for procreation and the legalizing
Therefore, a transsexual who have been operated via SRS can enter into a valid
marriage in any of the personal laws. The general marital laws that would apply
for any others would equally apply for them too.
Third genderPeople belonging to third gender might have changed their mental perception of
themselves as to into what gender they were born into biologically but their
physical attributes remain the same. This lies as an impediment in case of third
gender people. This is because, for a valid marriage to happen, there has to be
two parties of opposite sex. The parties should be in a position to fulfill all
their marital obligations and are expected to carry on the family lineage
forward. Whereas, in case of people who recognized themselves as third gender
are not capable of the same.
Whereas, individuals who recognises them as Hijras and etc., do not intend to
Applicability of Hindu law:As per Section 5 of this Act, only a marriage of a bride and a bridegroom is
valid and recognised. The terms "bride" and "bridegroom" are gendered terms. It
necessarily translates to "woman" and "man" on their wedding day. Thus, it
provides no recognition to marriages for the third gender.
Muslim Marriage ActThe essential that must be fulfilled under Muslim Law for a contract of marriage
is that the parties to such contract should be of opposite sexes. Hence, if a
third gender marries a person from opposite sex, the marriage is said to be
valid. Therefore, two parties who belong to third gender, but have different
assigned sexes could marry under Mohammedan Law.
Special Marriage ActAs in the case of the Hindu Marriage Act, the Special Marriage Act also requires
a male and a female along with other conditions that are to be fulfilled in
order to get the marriage registered. Therefore, in Special Marriage Act, there
is no scope for the registration of the transgender's marriage.
Adoption lawsPersonal laws pertaining to adoption only recognises Hindus as legal parents for
the adopted child no other personal law recognises adoption. Later on, the
Juvenile Justice (Care & Protection of Child) Act, 2000, was framed and this,
acting as a secular legislation allows people of other religions too to adopt.
Transsexuals Under HAMA:
The Hindu Transsexual after getting their sex reassigned are eligible for
adopting a child. For doing so, every individual who wish to adopt must fulfil
the conditions of a valid adoption as mentioned in Section 7 and 8 of
Section 41(6)  allows any person to adopt a child. Being a secular
legislation , its open for people of every religion, and gender.
- Third Gender
The Section 7 & 8 of HAMA only recognises male and female as valid parties for
adoption. Third genders are out of its purview.
Section 41(6) of this Act is a path breaking reform that provides the right to
any 'person' to adopt a child, and not a 'male' or 'female.' Additionally, it
also confers the right on the third gender couple to raise a child (if they are
recognised as a couple) since they can be classified as a childless couple under
Transgenders are a part of our society as we are. They needs to be respected and
treated equally. The awareness and support for transgender community is
increasing day by day and many countries by now have adopted several laws and
policies that help in the empowerment of transgenders. It is the part of our
culture to respect everyone.
Transgenders have been a part of our history too.
But it is very recently that the governments at both state ad centre are
recognising the repressions that this community has faced since ages and are
bringing out measures to empower them. Supreme Court in various judgements have
also stressed upon the point that the fundamental rights enshrined in the
Constitution do also extend to them. Hence, it is not too late for the state to
enact or amend the personal laws that would also recognise transgenders.
|Lesbian Gay Bisexual Transgender Queer
|Indian Penal Code
|Hindu Marriage Act
|Hindu Adoption and Maintenance Act
|Juvenile Justice (Care & Protection of Child) Act
|National Legal Services Authority
|Sex Reassignment Surgery
|Supreme Court Cases
- Navtej Singh Johar v Union of India, (2018) 10 SCC 1
- Alizaa Zaidi, 'Transgender Community in India: Rights, Changes, and
Challenges' (21 August, 2021) accessed 11 December 2021
- Mohd Aqib Aslam, The Position of India's Transgender - Third Gender, <
accessed 15 December 2021
- National Legal Service Authorities v. Union of India, (2014) 5 SCC 438
- Supra note 1
- Unnatural offences.-Whoever voluntarily has carnal inter�course against
the order of nature with any man, woman or animal, shall be punished with
1[imprisonment for life], or with impris�onment of either description for a
term which may extend to ten years, and shall also be liable to fine.
Explanation.-Penetration is sufficient to constitute the carnal intercourse
necessary to the offence described in this section.
- Arun Kumar and Another v. Inspector General of Registration and Ors.
WP(MD)No.4125 of 2019
- Conditions for a Hindu marriage.-A marriage may be solemnized between
any two Hindus, if the following conditions are fulfilled, namely:
- neither party has a spouse living at the time of the marriage;
- at the time of the marriage, neither party:
- is incapable of giving a valid consent to it in consequence of unsoundness
of mind; or
- though capable of giving a valid consent, has been suffering from mental
disorder of such a kind or to such an extent as to be unfit for marriage and
the procreation of children; or
- has been subject to recurrent attacks of insanity;
- the bridegroom has completed the age of 2 [twenty-one years] and the
bride, the age of 3 [eighteen years] at the time of the marriage;
- the parties are not within the degrees of prohibited relationship unless
the custom or usage governing each of them permits of a marriage between the
- the parties are not sapindas of each other, unless the custom or
usage governing each of them permits of a marriage between the two;
- Oxford Advances Learner's Dictionary of Current English
- Supra note 3
- K.S. Puttaswamy, J. v. Union of India, (2017) 10 SCC 1
- Supra note 1
- Shafin Jahan vs. Asokan K.M. and Ors ( (2018) 16 SCC 368)
- Supra note 7
- Capacity of a male Hindu to take in adoption.―Any male Hindu who is of
sound mind and is not a minor has the capacity to takes on or a daughter in
adoption: Provided that, if he has a wife living, he shall not adopt except
with the consent of his wife unless the wife has completely and finally
renounced the word or has ceased to be a Hindu or has been declared by a
court of competent jurisdiction to be of unsound mind.
- Capacity of a female Hindu to take in adoption.―Any female Hindu who is
of sound mind and is not a minor has the capacity to take a son or daughter
in adoption: Provided that, if she has a husband living, she shall not adopt
a son or daughter except with the consent of her husband unless the husband
has completely and finally renounced the world or has ceased to be a Hindu
or has been declared by a court of competent jurisdiction to be of unsound
- Registration of child care institutions:
The period of registration of an institution shall be five years, and it
shall be subject to renewal in every five years.
- Sai Ram Vinay Godithi
- Joshikumar P
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