Going Beyond Binary - Understanding Family Dynamics Of Transgenders In India
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Category: General Law
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GOING BEYOND BINARY: UNDERSTANDING FAMILY
DYNAMICS OF TRANSGENDERS IN INDIA Tejaswini Tripathy, PhD Scholar, National Law University, Odisha Satwik Acharya, Madhusudan Law University, Cuttack
ABSTRACT
The changing dynamics of socio-political facets have set the stage for a global competition, where countries continuously chase sustainability and growth targets with an impeccable desire to meet national and international standards, especially preserving the rights of non-binary sects of their population. The utopian standards premised on the idea that all humans are born free have resulted in the impractical implementation of measures aimed at protecting the intrinsically woven rights that predominantly form a part of natural law. Post the judicial recognition in NALSA and the awakening of freshly marked freedom brought by Navtej Johar, the idea of social inclusivity for non-conforming genders in all spheres of life has gained momentum.
Even after the due identification of non-binary individuals as ‘others’, they still face ostracism in pertinent issues relating to family dynamics, especially marriage, custody, adoption, and inheritance. The existing personal laws are ostensibly non-accommodative thereby withholding the sense of equality and infusing a feeling of seclusion, in contrast to the ethos of Article 14. This further adds to the perpetual customs of discrimination, abuse, ridicule, and bias. This paper attempts to study the marital and its consequential interests of the transgender community through the lenses of legislation and judicial decisions and further test it on the touchstones of the constitutional spirit and international instruments. The authors aim to identify abeyance to these unaddressed issues which are paramount for securing the legitimate interests of the community.
Keywords: Autonomy, Dignity, Discrimination, Recognition, Transgender
Introduction
With the growing world, the tolerance for obliging varied choices of individuals has come a long way with an empathically sculptured foresight and implausible vision of a better future. Recognition and acceptance of an individual’s autonomy plus liberty paves the way for a dignified existence. Such recognition without any form of discrimination is fundamental for achieving equality in any progressive democracy. The whole design of freedom for selfdetermination of identity has moved from archaic binary system to a spectrum specifically premised on gender identity and sexual orientation of an individual. This paradigm shift has not only occurred in international arenas explicitly but also in the Indian jurisdiction as well. The history weaves the presence of gender beyond the binary in society in almost every civilisation.
1 The term transgender is a social construct to segregate persons who identify themselves outside the concept two sexes (male and female) and is a relatively new concept developed in modern civilisations. Every civilization had such gender-diverse persons and were recognized locally as third, fourth even fifth or more genders. 2 With progression such gender-diverse persons were identified as sexual minorities3 and this included Lesbian, Gay, Bisexual, Transgender, Queer, Intersex, and Asexual plus (LGBTQIA+) identities ranging on the spectrum. In simpler literature, Transgender refers to those people whose gender identity does not align with the designated sex at the time of birth. 4 The Hon’ble Supreme Court of India has defined the term Transgender5 as an exhaustive coverage for persons whose biological sex does not conform with their identity, expression or behaviour.
The term is inclusive of but not limited to pre-operative, post-operative and non-operative transsexual people, who identify with the gender opposite to their biological sex. Since the existence of transgender persons can be traced back to early civilizations, mythology, and culture it was not difficult to define and identify who are transgender persons. As archaic the nature of society is, their presence was earmarked along with the conventional identities of man and women. Ancient folklores, medieval anecdotes and Mughal gharanas,6 in each phase
1 Independent Lens, A Map of Gender Diverse Cultures, available at
https://www.pbs.org/independentlens/content/two-spirits_map-html/ (last visited on Jun 30, 2024).
2 Id.
3 Suresh Bada Math and Shekhar P Seshadri, The Invisible Ones
Sexual Minorities, 137(1) Indian J. Med. Res. 4-6 (2013).
4 Ashley Mardell, The ABC’s of LGBT+ (2016).
5 NALSA v. Union of India, (2014) 5 SCC 438.
6 Arundhati Roy, The Ministry of Utmost Happiness 23 (2017).
their presence was found intricately woven within the social fabric. The social down treading of the community began with the onset of imperial rule by the Britishers. They primarily understood the identity segregation based on anatomy, the part of the population that did not fit into the so-called prescribed category found it difficult to have an identity of their own. 7 With the deformed idea of India being a straight state,8 homophobia crept into the system wherein the community stood as a distinguished taboo among the masses. As a result of which, the transgender community, has been subjected to layered atrocities like arbitrary detention, powerlessness, invisibility, shame, denial of dignity and self-worth, to disrespect, disapproval, revulsion, and even social ostracism,9 on the grounds of allotted or presumed sexual orientation and gender identity.
Recognition through International Instruments vis-à-vis Transgenders The evolving nature of human relationships have been provocative in bringing about a change in the attitude of societies vis-à-vis acceptance and tolerance towards emerging communities, having varied gender identity. Sexual orientation and gender identity raises prime concern of international human rights law, which predominantly embodies that all men are born free. Human rights are regarded as an integral part of all human civilizations which are formulated through statehood. These rights are vested in the individual as a virtue of their mere existence. The spectrum of these rights ranges from the protection and preservation of all human beings without any distinction.
10 These basic rights which are embodied in every human being, secure right to life, liberty, identity, freedom from torture, and slavery, freedom to express, practice, and propagate, etc. The states carry the obligation to safeguard these universally recognized rights which cannot be caged, cribbed, or cabined by means of any external forces, whatsoever. 11 When it comes to articulation of these rights, the Universal Declaration of Human Rights, 1948 (hereinafter referred to as ‘UDHR’) stands to be the most prominent one. The principles enshrined under the UDHR are recognized by the international community as a part of the rule of law. The signatories to this document are obliged to implement the said
7 Gayatri Reddy, With the Respect to Sex Negotiating Hijra Identity in South Asia 20 (UCP 2005).
8 Sumit Sourav Srivastava, Disciplining the ‘Desire’
‘Straight’ State and LGBT Activism in India, 63(3) Sociological Bulletin 368–385 (2014). 9 International Commission of Jurists, Sexual orientation, gender identity and international human rights law – Practitioners’ Guide, No. 4 (July, 2009). 10 United Nations, Human Rights, available at https://www.un.org/en/global-issues/human-rights (last visited on June 30, 2024).
11 Transgender Rights (Paisley Currah, et. al. eds., 2006).
principles in letter and spirit. To name a few, equality, equal protection of law, life and liberty, freedom from torture and slavery,12 arbitrary arrest and non-discrimination,13 privacy, asylum, nationality, marriage, freedom of thought, conscience, religion, opinion and expression,14 equal access, employment, standard of living, health and education with social and political inclusion. 15 When it comes to positive obligations by the states, the first ever document to specifically state the human rights standards of LGBTQIA+ is the ‘Yogyakarta Principles (Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity), 2007-2017’.
These principles are a set of universally binding and affirmative legal standards with which the states shall comply to preserve, protect, endure, uplift, and embrace the multifaceted sexual orientations and gender characteristics of emerging communities and groups. 16 These principles recognize the various atrocities faced by these communities and acknowledge the need for safeguards, transcending to national and international settings. 17 In addition to the above, the International Covenant on Civil and Political Rights, 1966 (hereinafter referred to as ‘ICCPR’) also lays down certain inalienable rights necessary for the ideal enforcement and recognition of civil and political freedoms.
18 The Covenant encompasses various fundamental freedoms inter alia the right to life19 and liberty to ‘everyone’,20 prohibits all sorts of discrimination on the grounds of ‘sex’21 along with an unhindered exercise of his/her privacy, sans arbitrary interference and attacks on his dignity and honour. 22 Further, concerning social and cultural rights, the International Covenant on Economic, Social and Cultural Rights, 1966 (hereinafter referred to as ‘ICESCR’) stands as a binding international covenant that recognizes the freedom from fear and utmost enjoyment of economic, social, and cultural rights. The Covenant ensures that aligning to non-binary sexual
12 The Universal Declaration of Human Rights arts. 1-3.
13 Id., arts. 9-10.
14 Id., arts. 12 -19.
15 Id., arts. 21-27.
16 The Yogyakarta Principles
Principles On the Application Of International Human Rights Law In Relation To Sexual Orientation And Gender Identity (S. Corrêa & V. Muntarbhorn eds., 2007).
17 Id.
18 UN General Assembly, International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI)
(Dec.16, 1966).
19 Id., art. 16.
20 Id., art. 9.
21 Id., art. 26.
22 Id., art. 17.
orientations shall not be a barrier in the utilization of the rights as prescribed therein. 23 The covenant also endeavors to the right to sexual and reproductive health24 and facilitates effective redressal mechanisms on the grounds of torture and degrading treatment. 25 Recognition and Identity of Transgenders through Social and Legislative Actions Owing to its unique geographical location, ethnicity, race, religion, and multi-linguistic culture, India stands as the most diverse state, accommodating the richness and distinctive characteristics of every community or group. The Constitution envisions a welfare state with social, political, and economic justice being served to all strata of people, irrespective of gender and sexual orientation.
With fundamental freedoms inter alia right to life,26 equality, and affirmative action27 vis-à-vis positive discrimination of the vulnerable sections, the state, through legislative and judicial activism has attempted to secure the identity and recognition of the LGBTQIA+ community, transgender in particular. In a historic breakthrough, the Supreme Court observed that gender identity is distinguished from sexual orientation with the meaning of the term ‘person’ is gender-neutral and covering transgender persons who do not align to their biological sex. The court categorically upheld the right to expression and selfdetermining of gender as pivotal for personal autonomy under Articles 14,19 and 21.
28 As the protector and guarantor of fundamental freedoms, the Court, through purposive interpretation and distributive justice has accorded legal recognition to transgender persons as “third gender” along with including them under socially and educationally backward class. 29 Considering the controversial debate over the decriminalization of Section 377, IPC, 186030 vis-à-vis consensual sex among adults amounting to unnatural offense, the tussle between Suresh Kumar Kaushal31 and Naz Foundation32 finally rested after Navtej Johar. 33 The need 23 UN Economic and Social Council, Non-Discrimination in Economic, Social And Cultural Rights, U. N. Doc. E/C. 12/GC/20, (Jul. 2, 2009).
24 UN Economic and Social Council, Right to Sexual and Reproductive Health, U.N. Doc. E/C.12/GC/22
(2016).
25 UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Implementation of Article 2 by State Parties, U.N. Doc. CAT/C/GC/2 (2008).
26 The Constitution of India, art. 21.
27 Id., arts. 14,15.
28 Supra note 5.
29 Supra note 26, art. 16.
30 The Indian Penal Code, s. 377.
31 Suresh Kumar Kaushal v. Naz Foundation, (2014) 1 SCC 1.
32 Naz Foundation v. Govt. of NCT of Delhi, (2016) 15 SCC 619.
33 Navtej Singh Johar v. Union of India, 2018 1 SCC 791.
for an explicit declaration of guaranteed freedom still remained unaddressed. To satisfy this, the Apex Court remarked that Section 377 fails to pass the test of intelligible differentia, thereby criminalizing consented sexual acts between competent adults in individual space. The section reduces the community at hand, to a social ‘pariah and dereliction’, thus prima facie being patently arbitrary and serves as a strategic instrument for harassment. Further, decisions regarding the innate zone of a person is primarily administered under the realm of private morality where individuals function on their free will sans the intervention of state, as opposed to public morality. 34 The grant of these rights has strengthened the ethos of inclusivity, that a welfare state must possess in the spirit of constitutional morality.
By virtue of this legal recognition these communities have been given the status of minorities, SEBC35 in particular. Under Indian jurisdiction, NALSA verdict’s formal recognition provided an impetus for a comprehensive legislative framework to protect and preserve the rights of this community. In response to this, the Transgender Persons (Protection of Rights) Act, 2019 was enacted, which primarily aimed at empowering them for self-determination of identity,36 equal opportunities in education,37 employment, and health care,38 non-discrimination, and remedial measures in case of any violation. 39 The act also empowers State and Union governments to form Welfare Boards catering to the holistic development of transgender persons, their rehabilitation, and other kinds of assistance.
Position of Transgenders Concerning Marriage, Adoption and Inheritance : A Path less Travelled The laws on heterogeneity of Hindu marriage, adoption, parentage, and custody are governed under the ambit of personal laws inter alia the Hindu Marriage Act, 1955, the Hindu Adoption and Maintenance Act, 1956 and the Special Marriage Act, 1954. The conditions of a valid marriage are couched on the premise that the parties cannot marry within sapinda relationship, 34 Stellina Jolly & Ritika Vohra, Recognition of Foreign Same-Sex Marriage in India, 59(3) J. Indian Law Institute 302-326 (2017).
35 Supra note 26, arts. 15,16.
36 Anjali Guru Sanjana Jaan v. State of Maharashtra, 2021 SCC OnLine Bom 11.
37 Mx. Alia SK v. The State of West Bengal, 2019 SCC OnLine Cal 3816.
38 Kabeer C Alias Aneera Kabeer v. State of Kerala, WP(C). No. 9890 of 2020.
39 Andhra Police books first case under Transgender Protection Act, 4 men arrested, INDIA TODAY (2023), https://www. indiatoday. in/india/story/andhra-pradesh-first-case-transgender-protection-act-4-men-arrested- 2395064-2023-06-19 (last visited Dec 9, 2024). unless the custom or usage allows such union,40 and the parties hereunder are to explicitly include bride and the bridegroom. Though India has a progressive approach towards the advancement of rights, the innate issues of homosexual marriages in a heterosexual-dominated setting stand as a roadblock to legal recognition of such civil unions as social institutions. The Supreme Court in a landmark ruling has disallowed the legality of same-sex marriages and also the eventualities arising out of such unions.
41 Dwelling into the existing legislative connotations regarding the inclusion of transmen or trans-women into the definition of persons under Section 4 read with Section 2(b) of Special Marriage Act, 1954 (hereinafter referred to as ‘SMA’) read with First Schedule, the Court remarked that the rules of ‘reading in’42 would mean reading into the text of the law and not altering the law itself. Further, this rule would not suffice to fit in where the objective of SMA only to govern inter-caste and inter-religious heterosexual relationships, was a conscious legislative decision. However, the Court did recognize on the tangible and intangible benefits of a marital relationship specifically monetary, evidentiary and property benefits which are in line with the right to choose a partner under Article 19(1)(e) and 21.
Nevertheless, that doesn’t get squarely covered within the right to marry through an ‘institution of marriage’ as a positive postulate of the state. The right to enter into sexual unions within homogenous couples is not per se restricted, but the recognition of homogenous marital relationships is not covered under the central idea of the SMA as it revolves around the normative heterogeneous43 understanding of marriage that prevails between a man and a woman only. The tussle between constitutional morality and social morality has ousted the stand of these atypical arrangements to be vested with legal sanction of marriage and its consequences, into a mere futile exercise.
Moreover, Section 3 and Section 20 of the Transgender Persons (Protection of Rights) Act, 2019 is to be harmoniously interpreted to be constitutionally sound, meaning thereby that the marriage between a transwoman to a cis-male and vice versa are recognized legal unions under the existing marriage laws and there was no need to unnecessarily construe the provisions of law when they already bear a restrictive
40 Poonam Pradhan Saxena, Family Law Lectures
Family Law II (3rd ed., 2011).
41 Supriyo@Supriya Chakraborty v. Union of India, 2023 SCC OnLine SC 1348.
42 Dharani Sugars and Chemicals Ltd v. Union of India, [2019] 6 SCR 307.
43 Hyde v. Hyde and Woodmansee, (1886) L. R. 1 P&D 130; Sebastian Poulter, The Definition of Marriage in English Law, 42 MOD. LAW REV. 409 (1979). interpretation. 44 The Court categorically mentioned that all the laws relating to marriage and its ancillary laws are particular to soothe a cause or attribute benefit to counter a specific mischief, i. e. allowing the widows to re-marry, deciding the minimum age for girls to marry, penalizing child marriage, marital offences, etc. It is because the ethos of marriage in demographics like India are driven and often hindered by religious,45 cultural and societal customs. 46 Although the court, through the above interpretation has cleared the aspects of recognition marriage, yet in X v.
Hospital Z,47 marriage as a part of right to privacy under Article 21 is recognized through the traditional norms of heterosexuality penetration to legitimize the potency of such union. 48 The paradox that underlines the denial of recognition stems down to the fact that since marriage is an administered set-up, the institution of marriage cannot standalone sans any legislation in that regard. This is further strengthened as right to marry49 is still not a fundamental right in contrast to the right to choose a partner or form a Union,50 ultimately forming a part of decisional autonomy,51 free will and sheer dignity,52 as a core value. 53 The Court in Navtej Johar54 retreated that, ‘When we say union, we do not mean the union of marriage, though marriage is a union.
As a concept, union also means companionship in every sense of the word, be it physical, mental, sexual or emotional’ In another matter regarding registration of a marriage between a transgender and a man55 to enable the couple to adopt a child, the Court in Rina Kinnar clarified that marriage or marriage certificate is not a requisite as per Section 7 and 8 of the Hindu Adoption and Maintenance Act,
44 Kanialal Sur v. Paramnidhi Sadhu Kar, AIR 1957 SC 907.
45 David A. Gay et. al., Religiosity, Spirituality, and Attitudes Toward Same-Sex Marriage: A Cross-Sectional Cohort Comparison, 5(3) SAGE Open 2015.
46 Human Rights, Sexual Orientation and Gender Identity in the Commonwealth
Struggles for Decriminalisation and Change 313-337 (Corrine Lenox & Matthew Waites eds., 2013).
47 X v. Hospital Z, (1998) 8 SCC 296.
48 Srimati Basu, The Trouble with Marriage
Feminists Confront Law and Violence in India 74 (University of California Press, 2015).
49 Obergefell v. Hodges, 576 US 644 (2015).
50 Shafin Jahan vs. Asokan K.M. and Ors, (2018) 16 SCC 368; Supra note 33.
51 Justice K.S.Puttaswamy(Retd) vs Union Of India, (2019) 1 SCC 1.
52 Shakti Vahini v. Union of India, 2018 (3) SCR 770; Lata Singh v. State of U.P, 2006 (5) SCC 475; Deepika Singh v. Central Administrative Tribunal, 2022 (7) SCR 557.
53 Jeeja Ghosh v. Union of India, 2016 (7) SCC 761.
54 Supra note 33.
55 Rina Kinnar & Anr. v. State of U.P. & Anr., 2022 LiveLaw (AB) 55.
1956. This is in line with the ruling in Supriyo56 where the majority observed that entitlement
of a right can be fulfilled by enjoyment of that right, but not necessarily validating that right through a social order or institution. However, in Arun Kumar57 the Madras High Court while delivering a path-breaking judgment specified that the term ‘persons’ as appears under Article 14 of the Indian Constitution would also include trans-genders along with male and female. In addition to securing the innate rights of self-determination and emphasizing the importance of the state in protecting the rights of its citizens under the theories of social contract, the Bench harped on the scope of the definition of ‘bride’ as provided in Section 5 of the Hindu Marriage Act, 1955.
Through the interpretative rule, the Court categorically mentioned that the law must be organic enough to encompass a transwoman, an intersex, or a transgender person who perceives herself as a woman within the definition of ‘bride’. This judgment has proved to be an enlightening measure on providing a legal backup for the transgender community, based on the ideals of self-perception, and a complete embargo on forced sexual mutations and sex re-assignment surgeries of intersex children without their informed consent. 58 With regards to adoption by an unmarried non-heterosexual couple, Section 57 of the Juvenile Justice Act, 2015 and Regulation 5(2)(a) and 5(3) framed by the Central Adoption and Resource Authority (hereinafter referred to as ‘CARA’) provide that a queer person can only adopt in individual capacity only and not through the lenses of being a married couple.
This exclusion has brought in an added disadvantage which supports the non-recognition of samesex marriage. The questions on parentage and custody also equally raises concerns with regard to the interests of the children parented up by non-heterogeneous couples, especially associated with ‘good or bad parenting’. In this context, the Court significantly admitted to the fact that there is a lack of sensitization concerning children raised in homosexual settings59 because of lack of legal recognition being allotted to these ‘not-so-usual’ arrangements. Therefore, by reading down the term ‘marital’, the Court believed that the term couple would encompass married and unmarried couples, also queer couples. Furthermore, the welfare of the child is of
56 Supra note 41.
57 Arunkumar & Sreeja v. Inspector General of Registration & Ors., 2019 SCC OnLine MAD 8779.
58 S.Amutha v. C.Manivanna Bhupathy, (2007) 2 CTC 97 (MAD).
59 Position Statement of Indian Psychiatric Society regarding LGBTQA, Indian Psychiatric Society, available at https://indianpsychiatricsociety. org/ips-position-statement-regarding-lgbtqa/ (last visited on June 30, 2024). paramount importance, indicators like ‘marriage as a mark of stability’ must not discriminate against any couple based on sexual orientation. Moreover, the court held that though the adoption regulations will also affect the eligibility of a heterosexual person to adopt,60 it would be more disproportionate on the part of nonheterosexual couples since the former have the option of getting married to gain eligibility to adopt but the non-heterosexual couples are devoid of the option since their marital unions have not been conferred legal recognition by the state.
However, this also leaves a gap on the part of heterogeneous couples as well since it has the presumption suggesting marriage to an unmarried couple, which undermines the couple’s liberty of choosing whether to adopt the child in their live-in relationship or after gaining the recognition of the marital social institution. This further questions the standing of a live-in relationship in the nature of marriage as discussed in Indra Sarma. 61 Access to property is significant since it raises the social standing of individuals. Since transgender persons are likely to have low income and savings, their being barred from inheritance of property will add to continuing marginalization. For a person dying intestate, there are different laws for the devolution of property of a man and a woman in case of the Hindu Succession Act, 1956.
The inheritance would depend on whether they are perceived as a male or a female, as the term ‘heir’ is exclusive of non-binary genders. The non-inclusivity of transgender persons in succession is demonstrated by the defining clause which requires that the heir must be binary demonstrates the rigidity of the laws on inheritance. Implications of Legislative and Judicial Measures: Progress over Progression In spite of all the legal developments with a sincere attempt for inclusion, the transgender community does continue to face direct or indirect atrocities which range from abuse in public transports, harassment62 by police officials,63 reluctance to serve at the judicial front, representation in electoral politics,64 etc. Post the celebrated NALSA judgment, ‘third gender’
60 Adoption Regulations, 2022, CARA, s. 5.
61 Indra Sarma v. VKV Sarma, (2013) 15 SCC 755.
62 Mansur Rahman v. Superintendent of Police, Coimbatore District, 2018 SCC OnLine Mad 3250; Latha v. Commissioner of Police, 2021 SCC OnLine Mad 7495; Sushma v. Commissioner of Police WP 7248 of 2021, Madras High Court. 63 Jayalaxmi v. The State of Tamil Nadu Rep by Its Secretary, Public Department and Ors., (2007) 4 MLJ 849.
64 Kamala Alias Kamala Jaan Alias Hijrah vs Sadiq Ali & Others ers, IndLaw MP 3107.
has been introduced in various government forms, passports and voter ID cards,65 and other governmental initiatives that have registered and provided ID cards and certificates to these persons for acquiring benefits. 66 However, India falls behind when it comes to amending the existing laws personal laws on marriage, adoption, etc. , constrained by the clutches of so-called conventionalism. The present argument is driven by the fact that even though due legal recognition has been awarded, the time now calls for the true implementation of the positive postulates of equality enshrined under Article 14 i. e. equal protection of laws. Thereby, the state must strive to achieve the ethos of equality by showering the benefits of a legally recognized marriage of a heterogeneous couple to that of a homogenous couple.
The Transgender Persons (Protection of Rights) Act, 2019 also serves inadequate in protecting the interests of the community, there lies ambiguity in contemplating the meanings of the terms self-perceived gender on one hand and self-determined gender on the other. The former is legally recognized through NALSA and Navtej Johar, however, the latter shall be the medium of verification for entitlement of benefits like education, health, etc. , and shall be remarked through certification in that regard by the District Magistrate. Here, the executive has been vested with an absolute and un-channelized power to determine the identity of these persons solely without recommendations of the District Medical Officer, who would have a better understanding of the person who does not align to his or her biological sex.
The Court has primarily focused on the non-accommodative approach of the Hindu personal laws on marriage and has pre-dominantly observed that individuals shall possess the right to choose their partners without any legal recognition to such arrangement. On the examination of the legislative and judicial attitudes of India, it can be fairly construed that the interpretations have been narrow and limited, just to identity and recognition, in contrast to the actual concept of being a transgender in the first place with or without Sex-reassignment surgery. Concluding Remarks In order to achieve an egalitarian society sans discrimination and pro-acceptance, it is essential to study the lives of the individuals from these communities, to understand the practical
65 “Third” Gender Introduced in Railway Forms After Passport and Voter ID Cards - The Wire,
https://thewire. in/gender/third-gender-railway-forms-passport-voter-id (last visited Dec 9, 2024). 66 Support for Marginalised Individuals for Livelihood & Enterprise (SMILE), https://transgender. dosje. gov. in/ implications of the landmark decisions in their daily lives. Despite the Court in Supriyo67 resorted to law as it is rather than law as it ought to be, regard shall be given to the clarification rendered about the status of homosexual couples to cohabit and enjoy their intimate demarcated zone, save through the lenses of social premises. With a targeted policy and right-based approach, along with promotion and affirmative outcomes, the efficacy of the rights of transgenders could be expected to improve.
Moreover, the literal texts of the statutes as well as the conventional religious, cultural, and customary practices which supported the heterogeneity of marital relationships, shall not hinder in achieving marriage equality, thereby maintaining the status quo in the international community. Owing to the judicial vacuum and lack of legislative disclosures regarding the recognition of same-sex marriage, it becomes difficult to associate the effect of such a union for matters consequential to a marriage i. e. adoption, custody, parentage and inheritance. The non- recognition of the above aspects supported by the theories of public policy and morality, along with an attempt to balance legitimate state interest, has led to a plethora of unaddressed issues.
Post the legal recognition of homogenous relationships, now the question remains on how to provide an inclusive framework to accommodate the above consequential issues either through the existing laws or by enacting specific legislations.
67 supra note 41.