Validity of Trans Heterosexual Marriage: Why Activists Are Divided on SC Verdict

The SC recently reaffirmed that trans persons in heterosexual relationships have the right to marry.

Zainab Patel (Left) and Uma P (Right) among the 21 petitioners for the marriage-equality case. 

(Photo: The Quint)

A key takeaway from the Supreme Court's verdict pronounced on Tuesday, 17 October, was that a trans person in a heterosexual relationship has the right to marry under the existing laws.

This essentially means that a person who identifies as a transgender man can register his marriage to a transgender woman or a cisgender woman and vice versa, the apex court verdict indicated.

"Transgender persons in heterosexual relationships can marry under existing law. We are in agreement with the submission of the Union of India that the issue of whether transgender persons can marry ought to be decided separately from the issues arising under the SMA in relation to homosexual persons or those of a queer sexual orientation,"

Chief Justice of India DY Chandrachud

But is this really new? Why are sections of the transgender community pointing out that it is exclusionary in its own way?

'Welcome Move' For Some, 'Disappointing' For Others

Karnataka-based Uma P, a trans woman, who is one of the petitioners in the marriage equality case saw the SC verdict as a step ahead.

"We welcome the verdict, it is definitely a step ahead. This is our right because it's been a long, hard struggle for us... members of the community have wanted to get married and adopt children. Now we can do that," Uma, who is the designated director at Jeeva, a non-governmental organisation working towards the welfare of the LGBTQIA+ community said.

For Shaman Gupta, a trans rights activist the SC verdict is simply a reinforcement of what already existed.

"Personally, I don't see it as a win... This is not a new judgment. Those who have read the Transgender Persons (Protection of Rights) (TRANS) Act properly know that this was a right which was already established. So the SC's verdict is a clarification and reinforcement of what already existed," Gupta said.

Gupta is the founding member and former CEO of TWEET Foundation, a trans-led organisation working to provide shelter, education and employment for people from the community.

'Judgment Reemphasises What Already Existed' 

Rights for the transgender community in India flow mainly from the apex court's landmark 2014 landmark judgement in the National Legal Services Authority (NALSA) vs Union of India judgment, which defined and affirmed the rights of trans persons, and the 2019 TRANS Act.

Advocate Aravind Narain, who worked closely on the case with Uma, and another petitioner and Karnataka-based trans rights activist Akkai Padmashali, said that while the verdict was "absolutely welcome, it is not something new."

"It is not that people did not get married before the SC judgement. Take Akkai (Padmashali) for example. She got married. How you ask? Because the law had already allowed it," Narain told The Quint.

The difference now is the reinforcement by the SC, which ensures "no one can stop you even if they wanted to," he said.

However, Patel believed, "Even if it did exist, it did not exist equally. If has to go to court to get an order, it doesn’t mean that it existed. There was just one recorded case that had happened at the Madras HC on a trans woman and her partner, where the court had to intervene for the marriage to take place…. I have not seen many cases like these which have gotten attention till now."

"Now, there is a very clear directive from the court that a heterosexual trans couple can get married under any personal laws. This is a great thing for transgender persons who wish to get married. Of course, the challenge is how this will be implemented. But I am taking it on face value," Patel said.

'Exclusion Of Trans Non-Binary People a Limitation'

With the inclusion of only those who identify as trans men or women who are in heterosexual relationships, it means that trans non-binary persons cannot legally marry or have a legally recognised civil union. It also means that trans men or women cannot enter a marriage with a person of the same sex. This, for members of the community, was a cause of worry and disappointment.

Advocate Narain believed that this aspect was one of the "limitations" of the SC verdict.  

"While the SC verdict is welcome, they are doing a great disservice by saying that it's applicable to all members of the community," Narain told The Quint.

The basis of both Akkai Padmashali's and Uma's petition was that "all persons should be entitled to marry," argued Narain.

"The NALSA judgment covered all spectrums of the umbrella and the definition of a trans person is broader. This particular judgment gives you right to marry, but only for a particular segment of the trans community," he added.

"Now the Supreme Court has taken a step back from equality by saying that non-binary people, or those who don't have their binary ID, and only have their trans card, cannot get married. There are so many trans people who identify as queer too. So, they don't have the right to get married. That isn't seem fair," Shaman told The Quint.  

Meanwhile, Zainab Patel called the exclusion an "impediment". "But, we have to long-term gains and work around this," she said.

A Long-Road Ahead With Challenges 

"While we saw some positive gains in terms of recognition of trans persons in heterosexual unions to get married under the Special Marriage Act or existing personal laws, it will be a huge challenge to see that implemented on the ground," trans woman Patel told The Quint.

Others pointed out to practical difficulties that transpersons face while engaging with authorities.

"Till date, we face trouble with documentation. It's a long, tedious process. We face questions from officials who often demand medical certificates from doctors regarding our gender-affirmation surgery. Apart from that, there is always the threat of violence from families. There is still discrimination too. These problems remain unaddressed."

Shaman Gupta told The Quint

For Uma, the implementation of policies for transgender persons was concerning. "In Karnataka, we are entitled to one percent reservation in all government services. But, in reality, it still has not been implemented, due to lack of awareness," she said.

"I think the SC verdict is a positive step. The challenge remains on the implementation. But a win is a win. I don't read it as any other way," Patel said.

"The biggest issue is the gender-identity mismatch and people's understanding of this. It creates all kinds of issues. A lot of people don't think that trans people should have personal, sexual reproductive lives at all. As long as it is in the framework of benefits, it is to some extent acceptable and highly tolerant by the larger community. But when it comes to marital and reproductive rights, they don't think we deserve to get that."

Zainab Patel told The Quint