It was a petition by Mumbai-based transgender activist Gauri Sawant – better known for being featured in a 2017 Vicks ad – and others that led to the historic NALSA judgment of 2014, in which the Supreme Court recognised trans people as a 'third gender'.
The same Gauri Sawant had moved the Supreme Court in 2014, seeking adoption rights for trans people in India – something that has remained elusive for the community since time immemorial.
Eight years down the line, the trans community's fight for adoption rights lives on. This time, it is taken on by Prithika Yashini – who is the first transwoman sub-inspector in the Tamil Nadu police force.
Yashini, who currently works as an assistant immigration officer, approached the Madras High Court recently, challenging the Central Adoption Resources Authority's (CARA) decision to reject her adoption application, allegedly on the grounds that she is a trans woman.
Where exactly does the law stand when it comes to adoption by trans persons? Will Yashini's case bring about change? Before we dive into these questions, let's take a deeper look at the ongoing case.
Yashini's Struggle To Be Recognised
This is not the first time that Prithika Yashini has knocked on the doors of the Madras High Court over the discrimination she faced on the basis of her identity. In fact, it was after an extensive legal battle that she became the first transgender police officer in the country in 2015 – at the age of 24.
She applied for the position of sub-inspector with the Tamil Nadu Uniformed Services Recruitment Board (TNUSRB) in February 2015, but her application for the written exam was rejected as her education certificates carried her deadname and gender assigned at birth.
She then moved the HC challenging the TNUSRB's decision. The court ruled in her favour, and she later became a sub-inspector.
On 12 November 2021, Yashini applied to the Central Adoption Resources Authority (CARA), expressing her interest in adopting a child, as per her latest petition filed in the high court.
The plea said that she submitted the online application for adoption from an agency called the Holy Apostles Convent in Chennai. However, the agency rejected her application a year later, on 22 September 2022, allegedly on the grounds that she is a trans woman, as per a TNIE report.
"Rejection of my application is totally illegal and against the fundamental rights which are common for all citizens. Therefore, it is unjust to discriminate and infringe my right," Yashini said in the petition, as per TNIE.
The HC, while hearing the case, gave two weeks time to the CARA to respond.
What Does the Law Say?
"The truth is, there is a huge gap in the law when it comes to adoption by transgender people," Ayesha Zaidi, a practising lawyer, told The Quint.
She said that primarily, there are two Acts by which an individual can adopt children in India – and both of them are based on heteronormative gender binaries. They are:
The Hindu Adoption and Maintenance Act (HAMA), 1956
The Juvenile Justice (Care and Protection of Children) Act, 2000
As per HAMA,
Any male Hindu, who is of sound mind and is not a minor, can adopt a son or daughter, provided that his wife consents (unless she has denounced Hinduism or has been declared to be of unsound mind)
Any female Hindu, who is of sound mind and is not a minor, can adopt a son or daughter, provided that her husband consents (unless he has denounced Hinduism or has been declared to be of unsound mind)
The HAMA does not apply to other communities like Muslims, Parsis, and Christians
On the other hand, the Juvenile Justice Act allowed for the secular adoption of children. Under this Act, the CARA is the apex body that decides on all matters of legal adoption.
As per the CARA's guidelines,
The prospective adoptive parents shall be physically, mentally, emotionally, and financially capable, they shall not have any life-threatening medical condition, and they should not have been convicted of a criminal act of any nature or accused in any case of child rights violation
The consent of both spouses shall be required for the adoption, in the case of a married couple
A single female can adopt a child of any gender
A single male shall not be eligible to adopt a girl child
Understanding the Gaps
Chandni Chawla, an advocate practising at the Bombay High Court, explained to The Quint that the HAMA and CARA rules, at present, state that only "males" and "females" are eligible for adopting children.
She added that before adopting a child, each prospective parent will have to undergo a thorough interview by a CARA panel, which would asses the person's financial status, and their situation at home and at work, among other things. The CARA will also entertain an appeal if the prospective parents' applications are rejected.
"In Yashini's case, she cannot even file an appeal with the CARA because the rules themselves don't mention transgender persons, thereby excluding the community in its entirety," Chandni adds.
Radhika Roy, a lawyer, also points out how the Transgender Persons (Protection of Rights) Act 2019, fails to mention various civil rights such as marriage, adoption, maintenance, and inheritance.
As these have been left out by lawmakers, there is no explicit law stating that transgender persons have the right to adoption, she says. The right to adopt, as a result, remains at the discretion of the authorities processing adoption requests.
Legal experts say that the Transgender Persons (Protection of Rights) Act has no reference to the procedure for either adoption or maintenance for a transgender person.
"The HAMA states that no male or female can adopt if their respective spouses of the opposite sex are not in consent with the same. Here, the dilemma is whether a Hindu transgender couple can be permitted to adopt under this law since the [Transgender Persons] Act is silent on this issue and the HAMA, too, makes no provision for transgender persons," an article published in Legal Service India reads.
What Needs To Be Done
Laws – at the end of the day – are necessary to ensure that society's attitude towards the community changes, says advocate Zaidi.
"Lawmakers say that society wouldn't accept a transgender mother or father – and so, there is no point changing the law. But such laws are also necessary to ensure change. Trans people are, therefore, caught in a vicious cycle."
The solution, perhaps, lies in the recommendations of the Supreme Court in the 2014 NALSA verdict. Here are some key recommendations from the judgment:
"Getting legal recognition and avoiding ambiguities in the current procedures that issue identity documents to Hijras/TGs are required as they are connected to basic civil rights such as access to health and public services, right to vote, right to contest elections, right to education, inheritance rights, and marriage and child adoption."
"Articles 14, 15, 16, 19 and 21...do not exclude Hijras/Transgenders from its ambit, but Indian law, on the whole, recognises the paradigm of binary genders of male and female, based on one’s biological sex."
"The binary notion of gender reflects in the Indian Penal Code, for example, Section 8, 10, etc. and also in the laws related to marriage, adoption, divorce, inheritance, succession and other welfare legislations like NAREGA, 2005, etc. Non-recognition of the identity of Hijras/Transgenders in the various legislations denies them equal protection of the law and they face widespread discrimination."
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