Taking cognizance of third gender & their basic rights

The UN had provided certain benefits for same-sex partners of UN staff and a resolution for opposing the benefits was promulgated which was supported by India. And it brings us back to LGBT rights and the infamous section 377 of IPC.

On April 15, 2014, the hon’able Supreme Court of India passed a landmark judgement promoting the rights of the Transgender (TG) community in National Legal Services Authority v. Union of India and others (Writ Petition (Civil) no. 400 of 2012). As per para 113 of the judgement:

Therefore, gender identification becomes very essential component which is required for enjoying civil rights by this community. It is only with this recognition that many rights attached to the sexual recognition as ‘third gender’ would be available to this community more meaningfully viz. the right to vote, the right to own property, the right to marry, the right to claim a formal identity through a passport and a ration card, a driver’s license, the right to education, employment, health so on.

Further, the para 114 states:

Further, there seems to be no reason why a transgender must be denied of basic human rights which includes Right to life and liberty with dignity, Right to Privacy and freedom of expression, Right to Education and Empowerment, Right against violence, Right against Exploitation and Right against Discrimination. Constitution has fulfilled its duty of providing rights to transgenders. Now it’s time for us to recognize this and to extend and interpret the Constitution in such a manner to ensure a dignified life of transgender people. All this can be achieved if the beginning is made with the recognition that TG as third gender.

Further, the para 115 states:

In order to translate the aforesaid rights of TGs into reality, it becomes imperative to first assign them their proper ‘sex’. As is stated earlier, at the time of birth of a child itself, sex is assigned. However, it is either male or female. In the process, the society as well as law, has completely ignored the basic human right of TGs to give them their appropriate sex categorization. Up to now, they have either been treated as male or female. This is not only improper as it is far from truth, but indignified to these TGs and violates their human rights.

Having this backdrop in mind, the hon’able Supreme Court ordered that TGs be recognized as a third gender for the purpose of safeguarding their rights under Part III of our Constitution.

Let us now come to the question of marriage of TGs. Let’s analyse the marriage acts, for instance, the Special Marriage Act 1954 provides condition of a valid marriage in section 4 (c):

the male has completed the age of twenty-one years and the female the age of eighteen years.

The words used are specifically ‘male’ and ‘female’. There is no mention of TGs. Therefore only a male can marry a female as of date, though we do have a third gender – TGs. For the TGs to get the right to marry or enter into same-sex ‘partnerships’, the marriage acts needs to be amended or a new statute may need to be enacted giving these partnerships legal recognition. This would atleast ensure that the TGs can enjoy most of their essential civil rights.