The Gender Security Project
Madras High Court Judgment on Gender Identity being Self-Determination
By Nanditha Ravindar
In April 2019, the Madurai Bench of the Madras High Court ruled that gender identity is self-determined by an individual. The bench was adjudicating upon a case in which the marriage between a man, Arun and a transwoman, Sreeja had not been registered.
The Government advocate in this case had argued that according to law, a marriage could be solemnized only if it were between a bridegroom and a bride, where “bride” refers to “woman on her wedding day”. The advocate went on to add that this did not hold true in the case of Arun and Sreeja as the “bride” in question was a trans woman. The Court, in its response to the same, stated that “Seen in the light of the march of law, the expression “bride’ occurring in Section 5 of the Hindu Marriage Act, 1955 will have toinclude within its meaning not only a woman but also a transwoman.It would also include an intersex person/transgender person whoidentifies herself as a woman. The only consideration is how theperson perceives herself.”
The court’s order for the case, stated verbatim is as follows:
“A marriage solemnized between a man and a transwoman, both professing Hindu religion, is a valid marriage in terms of Section 5 of the Hindu Marriage Act, 1055 and the Registrar of Marriages is bound to register the same. By holding so, this Court is not breaking any new ground. It is merely stating the obvious. Sometimes to see the obvious, one needs not only physical vision in the eye but also love in the heart.”
Let us briefly unpack what the Court’s verdict means. The Court has effectively indicated that a person is free to assign any gender to themselves that they identify with and that such gender determination cannot be questioned, refuted, or dismissed by anybody else. What matters is only how a person perceives themselves.
This is a progressive verdict of a timely nature.Discussions around gender, gender identity, and sexual identity are slowly becoming normalized in workplaces and at homes.
Dissecting the judgment
There is a significant distinction between gender and sex that goes beyond mere semantics. Sex is assigned at birth to a person based on the reproductive parts that they are born with.While some may argue that sex is binary, in reality, it is not. One can be born with male, female, or intersex body parts. The society anomalizes intersex bodies and forces children to undergo surgeries so that their bodies can conform to the binary, although the children’s agency in the matter itself is excluded. After a certain age, if an individual chooses to self-determine their sex, and in caseit is medically feasible and accessible, surgical reassignment of sex can be undertaken. On the other hand, gender is a social construct – a product of societal and cultural norms. Society and culture largely determine what amounts to “masculine” and “feminine.” Gender also goes beyond the binary, and ranges across a spectrum. Particular constructs are assigned to each gender identity, and are often used to straitjacket people into performing their gender within socially approved binaries. For example, being caring and nurturing are deemed “feminine traits” whereas being strong and stoic are “masculine traits.” These views are widely held across most countries.
Given that gender is a spectrum, a person should thus be free to determine their own gender, depending on the one they identify with. Aside from male and female, there are people who identify as agender people, transmen (female-to-male), transwomen (male-to-female), and those with non-binary identities such as genderfluid as well. If a person who identifies with a particular gender is prevented from exercising this self-determination and is thus denied acknowledgement of the same by their society, it is a violation of a basic human right (the right to life) and could impact their physical, psychological, and emotional well-being.
In the light of all this, the Madras High Court’s judgment on gender identity being something that is self-determined will bring a lot of relief to people who belong to gender minorities.
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