In a setback to queer rights, a division bench of the Supreme Court of India on Tuesday, October 17, refused to grant marriage equality to LGBTQIA+ individuals. The bench, headed by Chief Justice of India (CJI) DY Chandrachud, gave a split verdict where the majority opinions were delivered by Justices Ravindra Bhatt, Hima Kohli, and PS Narasimha who said that queer persons have the right to cohabitation, but conferring legal status to a civil union can only be enacted through a law passed by Parliament. However, in a win for transgender rights, Justice Chandrachud said that in a heterosexual relationship, a transgender person can register their marriage with their partner under the Special Marriage Act (SMA).
While delivering the judgement, the CJI said that since a transgender person can be in a heterosexual relationship, a union between a transman and a transwoman or vice versa can be registered under the SMA. “If a transgender person wishes to marry a heterosexual person, such marriage will be recognised by default as one would be a man and the other would be a woman. A transgender man has the right to marry a woman, a transgender woman has the right to marry a man, and a transgender woman and transgender man can also marry, and if not allowed, it will violate the Transgender Persons Act,” the Justice said.
Advocate Aravind Narrain, who worked closely on the case with Akkai Padmashali and Uma, the petitioners from Karnataka, told TNM that this is a big moment for transgender persons. Up until now, the only legal precedent supporting transgender marriages is a 2019 Madras High Court verdict where the court had directed the authorities to register a marriage solemnised between a man and a transwoman. “The Supreme Court’s recognition is the law of the land, so it is very important. It recognises transgender people's voices and gives their concerns visibility,” he said.
Aravind said that it remains to be seen how the judgement would impact the documentation process to register a marriage. “Transgender is an umbrella term and though the CJI clearly said this applies only in heterosexual contexts, it is still a very big step forward for trans rights,” he told TNM.
Read: No recognition for LGBTQIA+ marriages, SC passes the buck to Parliament
The apex court’s recognition of a transgender person’s right to marry may also relieve the transgender community of many procedural hassles. As of now, in India, for a trans woman to be able to legally marry a man, she must have her gender changed to female on all records. This process is governed by the Transgender Persons (Protection of Rights) Act of 2019. Advocate Jayna Kothari, who appeared for two of the petitioners in the marriage equality case before the SC, had told TNM that this is a tedious endeavour.
“When a person decides to transition, first, they have to obtain a certificate of Identity which says transgender, and once the process of transition is 'complete', they must produce medical documents and effect the change in gender. This is the biggest hurdle for trans women who want to marry. The process is never-ending and mostly digital. It is not accessible to everyone,” Jayna explained when TNM spoke to her in March this year.
Aravind also underlined that even in dissent, the language of the court was completely respectful, adding that this points towards a sense of respect and openness towards LGBTQIA+ individuals and their concerns.
The judgement comes following a marathon hearing spread over 10 days in April this year by the bench. All five judges were of the opinion that only Parliament or the legislature can decide on legal recognition for marriage equality, passing the buck to the government.
Read: Trans women have always married in India — it’s the law that needs to catch up