THE ARDHANARISHWARA SYNDROME - TRANSGENDER’S RIGHT TO MARRIAGE & ADOPTION

Imagine a world where we could all be who we are in a moment and then imagine all those possibilities locked inside a box. This is the difference between an ideal world and the real world. For a transgender person, this box is labelled genitalia, a phase, a trend, a boy, etc. It is difficult to understand how a transgender person feels, where everyone around tells you that the gender you’ve always associated yourself with is false.  It is not a recent phenomenon and a person’s gender identity need not always fit into two distinct choices. India recognizes transgender people as kinner, hijra, aravani and jogta but their demands to be regarded as a full citizen of modern democracy is yet to be fully recognized. The union of man and woman through marriage is protected under several Acts but is one such matter that fails to consider the transgender people of India. They are regarded as immoral, unnatural, or ungodly. On the contrary in Hindu shastras and mythology, transgender is a recognized gender. This reflects in the Ardhanarishwara form of Lord Shiva, in ancient sculptures and in the Kamasutra. So are they properly acknowledged in modern India? This article will look into the issues faced by the transgender community specifically regarding marriage and adoption of India due to lack of suitable policies. Co Author - Swathy Menon

THE ARDHANARISHWARA SYNDROME - TRANSGENDER’S RIGHT TO MARRIAGE & ADOPTION

Co Author - Swathy Menon

INTRODUCTION 

The sex of a person is identified by a doctor as a male or female at the time of birth considering the genital of our body, but what if our body and genes tell one story and our internal sense tells another. Therefore using the term “sex allotted at birth” is best.
For transgender people, their gender identity and sex assigned at birth do not match. There's no one way to be transgender, and no one way for transgender people to look or feel about themselves. The term transgender means different things to different people but is most commonly considered as the Third Gender. Therefore, ‘transgender’ is an umbrella term regardless of persons sexual orientation and reproductive anatomy. 
For instance, one can be labelled as a male at birth and grow up to identify themself with their innate gen as a woman. Here they are no longer considered a woman or man but a transgender woman. Like any other person their sexual orientation maybe towards men, women or any other like bisexual, pansexual or demisexual. This realization has no age limit, some take considerable time while others often identify early on in life.
It is crucial to understand that a transgender is not same as, intersex, gender non-conforming, or non-binary. The time period when they embark on to express themselves in accordance with their gender identity or gender transition period helps them lead a fulfilling and healthy life, reflecting the purpose of Article 21 of the Indian Constitution.  However, the steps taken to realize gender transition vary for every person.
Some go under medical procedure or hormone therapy to change physical characteristics, while others make changes in name, identification documents, or pronouns used to identify them. The steps taken will not be complete for transition if statutes are constructed out of ignorance or to overlook 4.9 lakh transgender people in India . Thus an effective system to ensure their rights is significant.
THE TRANSGENDER PERSONS (PROTECTION OF RIGHT) ACT OF 2019


In 2014, a remarkable judgement that acted as a beacon of hope for the transgender society of India was delivered in the National Legal Service Authority (NALSA) vs. Union of India case by the Supreme Court of India. The judgement declared transgender people as the “third gender” in India. They had the right to be treated equally under the Constitution. They had the right to self-identify themselves as male, female, or the third gender. Most importantly, it recognized them as socially and economically backward classes who deserved reservation in educational institutions and jobs. The judgement also led the State to introduce the Transgender Persons (Protection of Right) Act 2019 but the hastily made Act is considered regressive, discriminatory and received severe backlashes.
The provision did not honour the motive of the judgement. The Act was meant to rule out discrimination and make safe their life, but it did quite the opposite. It makes sex reassignment surgery compulsory to identify their gender after which a district-level committee assigns a gender certificate. This disregards the right to self-identification and coerces them into high-cost surgery. This makes choosing their gender identity difficult. Another question that arises out of the Act is,  if transgender people are considered less human. The punishment for crimes committed against them is less rigorous than for the same committed against the common gender. A transgender person is perceived to be hypersexual; they are frequently sexually attacked and considered a sex-object. This gets accentuated with less severe provision for punishment. Further the Act does not confirm any reservation for jobs even though the judgement in the NALSA case specifically states the importance of job reservation for transgender minorities. The Act also fails to recognize the existence of trans-men (female to male). 
Transgender people’s birth families are the first place of physical and psychological abuse. It is seen that in such circumstances the transgender community act as a support system. However, the Act requires them to either live with their parents or move to a rehabilitation centre. The Act initially criminalised begging which is the basic mainstay for the Indian transgender community until Delhi High Court quashed the law later. Overall, the Act is a total letdown because it simply fails to understand the basic structure and needs of then transgender community.
They enjoy rights under the Constitution like right to equality (Article 14), prohibition of discrimination (Article 15), right to privacy and personal dignity (Article 21), prohibition of human trafficking (Article 23) etc, but only on paper. For instance, when transgender people got the right to vote in 1994 issuing voter IDs was withheld over the common question of gender. In reality, technicalities restrain them from enjoying their Fundamental Rights completely and personal rights like the right to Marriage and adoption are only a distant dream.

TRANSGENDER’S RIGHT TO MARRIAGE

In India, a transgender is invited to a wedding ceremony or when a child is born to bestow blessings upon the family as they are believed to have the power to curse and bless. However, they are equally worthy to marry, to parent and pursue their happiness. To many, marriages  promote health, quality of life and the common good. It creates a sense of security and companionship. They are deprived of their right to marry. 

The right to marry is a fundamental right under Article 16 of the Universal Declaration of Human Rights (UDHR) in contrast to India’s Constitution.  Marriages in India are regulated using various statutory enactments like the Hindu Marriage Act of 1955 , Special  Marriage Act of 1954   etc. and through judicial decisions of the Apex Court. 

The Karnataka High Court ruled recently the right to marry a person of choice irrespective of caste or religion as a fundamental right  under the Indian Constitution but it's not irrespective of gender. Therefore it is poignant to note that the right to marry as a fundamental right is not applicable to transgender people. Denial to marry also denies several other finance associated benefits like , family life insurance, owning a house, etc which heterosexual couples enjoy.

The subject of marriage for the most part falls under three separate laws to recognize marriages among Hindus, Muslims and Christians. According to S.5 of the Hindu Marriage Act , there are certain conditions for a valid marriage, such as:
●  Parties to the marriage should be Hindus, 
● Marriage should be monogamous, 
● Parties must be sane and within the prescribed age, 
● They should not fall within the degree of prohibited relationship,
● It must be in accordance with the customary rites and ceremonies. 
Nowhere is it mentioned that parties to the marriage must be a biological man and woman. However S.5(1)(b) states that the parties to the marriage shall be fit for the procreation of children. 

In Arun kumar and Another v. Inspector General of Registration and Ors  The Supreme Court upheld Hindu marriage between Sreeja, a transwoman and Arun kumar. Their registration was refused initially on the reason that a transwoman will not qualify as ‘bride’ under S.5 of the Hindu Marriage Act 1955. The court respected the right of transgender people. But then again the term transgender is not enclosed within a particular sexual orientation alone. In the above case, the right to marry is for those who see themselves within the sexual realm of man and woman , then what about transgender homosexuals. Even if they are transgender, they need to procure identity cards of cismale or cisfemale to marry. A bisexual transgender or any member of LGBTQ thus cannot involve in same-sex marriage. Even though High courts of the State have recently enforced same-sex couples' right to live together but its not in holy matrimony  .

Under Muslim law as well, marriage is a civil contract that legalizes sexual intercourse and procreation of children. This poses the question ‘is the purpose of marriage only to legalize sexual intercourse and procreate children?’ The answer is premarital sexual intercourse is not an offense and procreation of children cannot constitutionally be a condition. The reason being that heterosexual couples cannot or can choose not to have children. The intention of marriage thus goes deep and beyond. Still, they are forced to surrender this right . Thus Indian citizens should be able to choose a partner of their choice and have the right to marry them irrespective of their sexual orientation and gender identity. 

A broad provision that is Article 21 which deals with right to life and personal liberty also comprises the right to marry someone of one’s choice. In Shakti Vahini v. Union of India,  The court said, “It has to be sublimely borne in mind that when two adults consensually choose each other as life partners, it is a manifestation of their choice which is recognized under Articles 19 and 21 of the Constitution. Such a right has the sanction of the constitutional law and once that is recognized, the said right needs to be protected...” Similarly, Justice DY Chandrachud in Justice KS Puttaswamy (retd) and another v. Union of India   opined, “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21…Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone... Personal choices governing a way of life are intrinsic to privacy”. Article 21 is applicable to all Indian citizens including transgender people. The court has found that discrimination on the grounds of sexual orientation and individuality violates Article 14 in Suresh Kumar Koushal case.  

The constitutional validity of S.377 of Indian Penal Code 1860, a provision that criminalized sexual activity pertaining to homosexual relations, was questioned in Navtej Singh Johar case,  also the court guaranteed Article 14, 15, 19, and 21 to LGBT and non-LGBT equally. Even though this section was later decriminalized and even though High courts of the State have recently enforced same-sex couples' right to live together , the same is not necessarily enforced through holy matrimony. One can say the legislature and law is simply skirting around their perimeters. All the contentions such as it is a violation of existing personal and codified law or that Indian laws and culture do not recognize transgender and same-sex marriage point towards the common ground- conservatism.

 In a dynamic nation like India, change is the only constant. The spirit of law of a land is to accommodate change without fear and police the general welfare. One such example is in Lata Singh v. The State of UP , where the issue of inter-caste marriage was dealt by the court recognizing the petitioner’s right to choose a partner of her choice as a major which gave way to the Special Marriage Act of 1954 that governs civil marriages. Similarly the sanctity of a franchise called marriage will not be dissolved with acceptance of transgender marriage but will only allow them to be a part of that sacred institution which is enjoyed freely by heterosexuals. The transgender community is entitled to their right to marry. The state and the legal system cannot claim or anticipate such marriage bad for the society. Instead must support and defend transgender marriage for the common good and general welfare of India through progressive and structured laws.

TRANSGENDER’S RIGHT TO ADOPTION

When the right to marry is still not accessible to the transgender community, parenthood is out of question. Adoption too, falls under the ambit of personal laws. When the right to marry becomes fundamental to transgender people, the right to adopt and start a family will follow. India seems to turn a blind eye towards their right to adopt so far. Transgender people, whether single, married, or living together under a recognized agreement, should be able to parent like the common gender. The need to parent remains the same irrespective of the gender, genitalia, or sexual orientation; it's the individual's actions, conduct and behaviour that matter.

A person who is physically unable to procreate but wishes to enter parenthood has the option of adoption, surrogacy, and in-vitro fertilization (IVF). In the Surrogacy Bill  commercial surrogacy is completely barred, and altruistic surrogacy is allowed only for Indian married couples and single women who are widowed or divorced, not unmarried. It excludes live-in couples, single parents, and the Transgender community. The process of IVF is accessible only to heterosexual married couples and singles, those in live-in, homosexual relationships, transgender and intersex individuals cannot express reproductive autonomy which makes adoption the only option, which is a permanent transfer of parental rights of a child from one person or couple to another and is legal. The rights and responsibilities of adoptive and biological children or parents are the same. In India even the adoption forms unfortunately but not surprisingly, have only two options, that of male and female.

Adoption in India is regulated by the following Acts: 
● Adoption for Hindus, Sikhs, Buddhists, and Jains are regulated under the Hindu Adoption & Maintenance Act of 1956 . 
● The Guardianship and Wards Acts of 1890  is a non-religious law regarding guardianship, which the Muslim, Parsi, Jews, and Christian follow since their personal laws do not permit adoption. 
● The Central Adoption Resource Authority (CARA), Adoption Regulations of 2017 which is in accordance with the Juvenile Justice (Care and Protection of Children) Act 2015 . 
But none of these laws are in favor of transgender and gay parenting. Single transgender people are adopting but not under the title of third gender, and no existing Act expressly declares it unlawful. However, same-sex couples or transgender couples are forbidden from adopting a child under the Hindu Adoption & Maintenance Act of 1956 or the Guardianship and Wards Acts of 1890 since both require the parent to either be a male or female.

The conditions under CARA are that the adoptive parents should be physically, mentally, emotionally and financially stable irrespective of marital status. A single female can adopt a child of any gender but a single male shall not be eligible to adopt a girl child. Here too they have failed to consider the third gender. Apart from resident and non-resident Indians, even overseas citizens of India and foreign parents can adopt children from the country except same-sex parents. This is beyond a shadow of a doubt, discrimination. 

Indian transgender community is deprived of equal adoptive rights on the ground that adoption agencies are religious and faith-based . This is discrimination in the name of religion and a violation of Human rights since both the child and parent have the right to have a family life . The motive of finding the child a caring family is what needs to be upheld. Some believe that a child needs both a male and female figure, rather than both of one or the other, or non binary. They assume that one gender can teach certain things that the other can't  and thus both are required for a child's upbringing which is, in reality, contradicting the existing adopting laws where single parents are considered eligible to adopt. Evidence confirms that, despite the claims opposing transgender parenting, same-sex couples provide good conditions to raise a child . The transgender community is known to hold shelter for those children whose parents are in no position to take their care and leave them with the community even though there is no legal validity to this. Children who are raised in same-sex parenting or by a transgender will more likely experience gender and a sexual disorder is another misconception. 

To begin with, falling under the third gender or LGBT community is not a disorder that needs any therapy or healing , and secondly, till date there exists no evidence proposing that the transgender community is unfit to raise a child, rather a child is more likely to grow up with good values and under good conditions. Parents have the ability to care and influence growth, but parenting has got nothing to do with sexual orientation . The conservative notion will only be addressed once the law starts to recognize transgender partnership and adoption. 

Laws in India are based on societal values, cultural history, beliefs, and more, but the jurisprudence of a nation is constantly meant to evolve. Adoption will always be a better alternative for a child rather than growing in an orphanage, especially since no contentions are well-founded. Anybody who is able to provide a safe and loving home should be able to adopt. The only questions that need answers are not with regard to gender but whether the parent is emotionally, mentally, and physically prepared. One can support this as same-sex adoption is legal in around 40 countries . In the UK, the Adoption & Children Act 2002 allowed unmarried same-sex couples to adopt a child. Even a developing country like South Africa allowed joint adoption by same-sex couples. What is stopping India now ? 

CONCLUSION 

The people of India are free and empowered by an assorted range of rights under its Constitution except for transgender people who battle constantly to be recognized as a citizen. They deserve to be free and empowered as any other Indian citizen because first comes the gender of Humanity. Justice K S Radhakrishnan said in the NALSA case, “Our society often ridicules and abuses the transgender community and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are sidelined and treated as untouchables, forgetting the fact that the moral failure lies in the society’s unwillingness to contain or embrace different gender identities and expressions, a mindset which we have to change.” From this opinion we understand that transgenders are not a problem; the problem exists with the conception associated to transgender community in mind of the public which will be encouraged without giving them an opportunity to live a dignified life. The State in its capacity and ability should make them feel safe and secure. An effective strategy would be that of gender sensitization together with a legal policy or reform. They are minorities who need a genuine policy that views gender as a spectrum, not binary. A coherent and consistent gender policy that eradicates discrimination against the community is thus highly necessary. 

On 29th April 2021, the Madras High Court Judge  undertook a session with a psychologist to understand same-sex relationships. The judicial system is moving in the right direction but it cannot interpret laws and provisions that are absent, hindering further progress. There exist patchy laws but as of now, there is no structured law in the face of this country that discusses adoption and parenting rights of the transgender and LGBTQ community. It is high time the legislature takes an active pragmatic move towards recognizing their rights and natural instincts to start a family by making relevant adoption and marriage laws for the transgender community.Being a developing country India should not turn back on its transgender community . India can and should do better.