On the 24th of August, 2020, a division bench of the High Court of Orissa confirmed the right of a transgender man and a woman to be in a live-in relationship. The present case was a habeas corpus petition concerning the live-in relationship of a transgender man, the petitioner, and a woman, the alleged detenue. Summarily, the court confirmed their right to be in a relationship, and placed an obligation on the State to offer “all kinds of protection” to them to facilitate their exercise of this right. I will first summarily restate the facts of the case and then draw the attention of the reader to five items: 1. The judge’s easy recognition of the self-identified name of the petitioner—an important “best practices” for judges and lawyers dealing with SOGI matters. 2. The not completely relevant history of how the petitioner came to be recognized as a transgender man; 3. Arguably, familial ideology in motion, resulted in adjournments and the delay of the detenue’s (and the couple’s) live-in relationship right, along with certain fundamental rights; and 4. The usage of protection orders to secure the safety of the detenue and the couple.Continue reading
On the 22nd of April, 2019, a single judge bench of the Madras High Court directed the State to issue a marriage certificate to a man and transgender woman. 1. This is the first case to recognize the right to marriage of a transgender person. Importantly, the court did not require the transgender woman to have undergone SRS to be recognized as a woman. 2. The case also furthered the legal jurisprudence regarding intersex persons and directed the State government to issue a notification to ban normalizing surgeries for intersex babies, giving it eight weeks to comply with this direction. This blog will focus on the two above-mentioned features of the case.
Facts of the Case
Mr. Arunkumar married Ms. Sreeja in a temple in Tuticorin (Tamil Nadu). Arunkumar was assigned male at birth whereas Sreeja was born with an intersex condition. While she was assigned gender female at birth at school she was registered as male and had a male name. In her Aadhar card, her identity was displayed as transgender. Arguably, her socially perceived gender was that of male and that is why even though her birth certificate records her gender as female, when she adopts a female name and marries a man the issue becomes one of transgender marriage and not marriage between two persons of different sexes. In the case. The marriage was performed according to Hindu rites and customs and certified as validly performed by the administrative officer of the village. However, the temple authorities declined to vouch for the marriage. This fact raises some questions. Whose authorization: the administrative officer’s or the temple authorities, is necessary to claim that a marriage is performed as per Hindu rites and customs. This question is not raised in the case but given that the judgment does not question the validity of the marriage on this count, arguably, a marriage can be said to performed according to Hindu rites and customs even if just the administrative officer (not usually an authority on religious rites) certifies it so in opposition to the temple authorities. Moving ahead from this digression, the couple was required to register their marriage as per Rule 5(1)(a) of the Tamil Nadu Registration of Marriage Rules. When they approached the Joint Registrar for the same, he opposed to register it. The couple met with a similar refusal when they appealed his decision before the Registrar of the District. They challenged the decision of the Registrar in a Writ of Mandamus filed in the Madras High Court.
In the High Court, the counsel for the State of Tamil Nadu defended the Registrars’ refusal on two grounds:
- As per the Tamil Nadu Registration of Marriage Act, 2009, a Registrar could refuse to register a marriage if they were satisfied that the marriage was not performed under the personal law, custom or tradition as the claim may be. In the present case, the State argued that the temple authorities did not certify the marriage, providing valid grounds for refusal. As mentioned before, the judgment did not focus on this contention at all. However, if similar registration Acts exist in other States as well then in the future, one may reasonably expect that this may become a ground of contention in a case. In this situation, the court will have to turn its attention to whether this activity of the temple can be subject to constitutional scrutiny, and if so whether the criteria that temples have reserved for issuing such certificates are constitutional.
- Section 5 of the Hindu Marriage Act, 1955 lays down the conditions for the solemnization of a Hindu marriage. Although the Section does not state that a valid marriage can be entered into only between a man and a woman, the Section has been legally understood to imply this. The Section uses the word “bridegroom” and “bride” only to state the minimum age that these persons must be to enter into marriage but does not state that they must marry one another. However, the word “bride” is not defined in the Act. The counsel for the State argued that a bride is a “woman on her wedding day” [as defined in the Oxford Advanced Learner’s Dictionary of Current English]. As Sreeja was not a woman but a transgender person, she could not be a bride under the Act, and therefore the marriage was not solemnized as per the terms of the Act.
Reasoning of the Court
The reasoning of the court was prefaced by recapping certain propositions of law recognized in the NALSA case:
- Fundamental Right to Gender Identity: Ignoring the first contention, the court focussed on the second one and refused to accept it in the light of the NALSA decision. The NALSA decision had stated that transgender persons have a fundamental right to decide their gender identity as either man, woman or third gender. Incidentally, the court also found support for this legal proposition in Hindu tradition and cited the story of Aravan and Shikhandi and modern neuroscience of Prof. V.S. Ramachandran which validates the argument of internal and external gender mismatch experienced by the transgender population.
- Right to Equality: the court also referenced NALSA to reiterate that the fundamental right to equality was available to “all persons” and not just men and women. Therefore, Article 14 (equality) finds discrimination on the basis of gender identity unconstitutional.
- Dignity and Privacy: the court also found, following NALSA, that the gender identity discrimination offends the fundamental right to dignity and privacy protected under Article 21.
- Fundamental Right to Gender Expression: the court also reiterated NALSA in saying that gender expression and presentation are protected under Article 19(1(a) of the constitution, and the State could not “prohibit, restrict or interfere” with a transgender person’s expression of the same [NALSA, para 72].
Thereafter, the decision of the court was based on two proposition of law, and and one guiding principle of interpretation.
- 1. Proposition of law: The right to marry: Accordingly, the court ruled that the construction of the word “bride” could not be static and had to be interpreted as per the current conditions. Accordingly, given that transgender persons have the fundamental right to a self-identified gender, “bride” under S. 5 of the Hindu Marriage Act, 1955 should be read to mean not just a person assigned female at birth, but also a transgender or intersex person who identifies as female. It found that Article 16 of the Universal Declaration of Human Rights (UDHR) grants men and women the right to marry, and in a recent Supreme Court case [Shafin Jahan 2018], the Supreme Court had held the right to marry as a fundamental right protected under Article 21. The court also found support for this proposition in the NALSA judgment itself which had predicted that civil right like marriage could be made available to the transgender population once their gender identity is given due recognition in law.
- Proposition of law: the freedom of religion: the court found that denying two practicing Hindus (the petitioners) to marry under Hindu law was a violation of their freedom of religion because it prohibited
- Guiding Principle of Interpretation: the court also noted that the constitution is an enabling document and judged on its standards, it “would be absurd” to deny to the transgender population rights already available to the mainstream.
Jurisprudence Regarding Intersex Persons
The court started by defining intersex persons partially correctly when it noted that intersex children are “children who are born with genitalia that belongs to neither category” [para 16]. This is not correct. While some intersex persons may have ambiguous genitalia, some intersex persons may have the external genitalia associated with one sex but they might have internal sexual organs not typically associated with that sex. For example, a person may be assigned gender male at birth because he possess external sexual characteristics of a typical male but they may have a uterus. Alternatively, they might have a chromosomal make up different from the one associated with males (XY) and females (XX). However, importantly, the court did note that the parents and the doctors perform corrective surgeries on such children when they are born found such surgeries in violation of NALSA (which prohibited SRS for gender recognition) and also Article 39 of the Indian constitution which directs the State to give children the opportunities and facilities to develop in a health manner in conditions of freedom and dignity. It also stated that intersex children are entitled to stay with their families and the onus fell on the government to launch programmes to address parental shame upon the birth of an intersex child.
Gender identity claims are the most common kinds of claims concerning transgender persons’ rights post NALSA. In this blog, I will demonstrate a trend that has arisen in these cases. We will recall that NALSA allows transgender persons to identify as male, female or third gender and does not require SRS or psychological evaluation to be made in this regard. In other words, it allows a gender identity claim based on the fundamental right of self-determination of gender. However, this principle of self-determination has been replaced by a principle of societal perception. Societal perception in turn is determined by the sex assigned at birth. 11 Supreme Court and High Court cases have been reported in SCC Online and Manupatra since the NALSA decision. Of these, 4 cases concern persons with intersex conditions who have been mis-classified as transgender, 3 deal with gender identity claims of trans-masculine persons (FTM), and 4 deal with gender identity claims of trans-feminine persons (MTF). These gender identity cases can be divided in two categories: 1. Gender identity claims which are consistent with societal perception (first 4), and 2. Gender identity claims which are inconsistent with societal perception (last 7). The trend that has emerged is that so long as a gender identity claim is consistent with societal perception, courts do not require a SRS or a psychological evaluation to grant the gender claim. However, as soon as the gender claim is inconsistent with such perception, a court requires a SRS certificate and in one case a psychological evaluation before granting the relief.
GENDER IDENTITY CLAIMS CONSISTENT WITH SOCIETAL PERCEPTION
The first kinds of gender identity claims occur in cases in which a person is diagnosed with an intersex condition and labelled as transgender. In all these cases, the person has never identified as transgender and wishes to continue to identify in the gender that they have hitherto occupied. All their documents also point to that gender and they have been brought up as members of that gender. In these cases, the courts grant them the right to continue to identify in their gender. They do not rely on SRS or psychological examination before granting this remedy. The courts’ reasoning is based on the fact that society perceives them to belong to their claimed gender, and all their documents also confirm that fact. Consider this quotation from one such case which is typical of cases which fall in this category:
In all the records in the Schools, College and the University, she [the petitioner] was recorded as a female. She was known and fully recognized by the society as a female. Her gait, get-up, gesture and demeanour were all that of a female. The society did not doubt her sex at all. She actively participated in sports activities for women…irrespective of the opinion of the medical, psychological, genetic and other scientific communities, these medically declared transsexuals are to be treated by the legal community only by the sexual identity given to them by birth and recognized by the society.[Paras 2 and 34 of Nangai].
Note that the reasoning of the court is not based on the self-identity of the claimant but on societal perception. Had the decision been based on self-identity, the court would have noted the gender recorded in all the official documents but found that factor irrelevant in granting the gender claim of the applicant. The gender claim would have been simply been granted on the fact that the claimants considered themselves to belong to a particular gender. The tendency of the courts to maintain status quo in gender claims is confirmed by the fact that in these cases, the courts usually conclude by saying that should the claimant want to identify in another gender, a medical declaration will be needed to that effect. Note the quotation below which is typical of cases in this category.
The petitioner has the liberty to choose a different sexual/gender identity as a third gender in future based on a medical declaration. [Para 41 of Nangai].
Once again, had the gender claim truly been based on self-identity, this concluding statement would not have been made by the court.
GENDER IDENTITY CLAIMS WHICH ARE INCONSISTENT WITH SOCIETAL PERCEPTION
The second kinds of cases concern those persons who want to identify in a gender different from what society perceives them to be. In all but 2 of these cases the courts have required proof of SRS certificate and in one instance, a psychological exam. Note the quotation below which is typical of cases in this category.
…when a transgender undergoes a sex reassignment surgery and makes an application for changing of name and sex in the relevant records on the basis of the various documents including documents issued by the medical officer, the educational authorities or the concerned authorities are expected to verify the records and make consequential changes in the concerned records…in light of the above facts, this court is of the opinion that the petitioner should be granted relief sought for and he is entitled to the name mentioned in the certificates to be changed by mentioning the present name, which is on account of sex reassignment surgery.[Para 3 of K. Gowtham; emphasis mine].
This tendency of the courts is confirmed by Santosh Shivam Dewangan, analysed here, in which the court refused to admit that the prosecutrix who charged the defendant with rape was indeed a woman because her vagina was not fully formed.
…her sex had not changed in tune with gender characteristics from male to female even after SRS surgery…[from the doctor’s report]…patient is a transgender has undergone sex change surgery 3 years back around 2013 at Dr.Kalda Clinic. Second sexual character on developing stage, has not started menses. Axillary hair, vagina is incompletely formed. Further considering the fact that her vagina is not fully developed and the secondary sexual characters are on developing stage, as case of the prosecutrix is falling under S. 375(a) of the Indian Penal Code…this court is of the view that it is a fit case to release the applicant on bail. [Para 13 of Santosh Shivam Dewangan].
In Shivani Bhat and Tessy James, the court did not require SRS but these cases were not concerned with changing gender on official documents. It is unclear what the court would have stated had that been required. Additionally, in Tessy James, analysed here, the court ordered a psychiatric evaluation before allowing the claim of transgender gender identity.
My thanks to Satya of the Sampoorna Working Group who helped me locate some of the cases concerning trans-masculine persons. The group is a network of Trans* and Intersex Indians Across the Globe. More here: https://sampoornaindiablog.wordpress.com/
On the 27th of April, 2016, a single judge bench of the Chhattisgarh High Court granted bail pending trial in a rape case. The prosecutrix, a transgender woman who had undergone sex re-assignment surgery (“SRS”) commenced a sexual relationship with the accused upon a promise to marry. When that promise was broken, she lodged an FIR alleging rape, among other things. This case concerned the bail application of the accused who had been imprisoned following the FIR. Sexual relationships based on (later) broken promises to marry may qualify as rape but this blog is not an opinion on that issue. Neither is it an opinion on bail proceedings. Instead in this blog, I focus on two of the reasons for the grant of bail: 1. The court’s incorrect finding that the prosecutrix was not a woman only because all her female sex organs had not fully formed post SRS; and 2. The court’s incorrect implication that the prosecutrix could not be raped only because her vagina was not fully developed. I argue that these findings are incorrect in law and end up excluding certain legal subjects from the protection of rape law.
REASONS FOR GRANTING BAIL
Before expanding on the reasons for bail, we recall that rape, as per the Indian Penal Code, 1860 (“IPC”), is a crime that can be committed only against a woman. The judge granted bail for the following reasons: 1. She was not entirely a woman i.e. “…her sex ha[d] not changed in tune with gender characteristics from male to female even after SRS surgery.” 2. According to her medical report, her vagina was not completely formed and her secondary sexual characteristics were still developing; 3. There was a year long delay in filing the FIR 4. No semen was found on her clothes; 5. No custodial interrogation of the accused was required; and 6. The prosecutrix was a 23 old adult. I will deal in depth with reason 1 and 2 and make some general observations about reasons 3-6 in respect of bail proceedings. Bail proceedings are not a determination of the merits of the case i.e. whether the accused is guilty or not. Generally, in non-bailable offences like rape, the accused cannot demand bail as a matter of right. Moreover, in cases such as rape, if there is an appearance of guilt, bail shall be denied. Therefore, it is common, to my understanding, for courts to consider the kinds of evidence it did to arrive at the bail decision. This is despite the fact that some of the evidence they examine may be thrown out as inadmissible at the trial stage, or the conclusions drawn from them may be legally incorrect as I will demonstrate below. However, in this blog, I am not focussing on the merits or demerits of such kinds of bail proceedings.2.
COURT’S INCORRECT CONCLUSION THAT THE PROSECUTRIX WAS NOT A WOMAN (REASON 1)
The question in the case was one concerning rape—primarily, whether sexual intercourse on a promise to marry is rape, if the promise is later broken. The short legal answer to that question is yes, it may be rape. Now, though he had been chargesheet-ed on a rape complaint (S.375, IPC), the accused argued that the prosecutrix was not a woman because her sexual characteristics had not developed. Accordingly, he could not have raped her. Examine this report from the medical officer in which he found that the vagina and the secondary sexual characteristics of the prosecutrix had not fully developed:
“Examine [sic] patient is a transgender [sic] has undergone sex change surgery 3 years back around 2013 at Dr. Kalda Clinic. Second Sexual Character on developing stage, has not started menses. Axillary hair+, Vagina is incompletely formed. No sign of injury seen over the anal region or vaginal area. 2 slides prepared from the anal region area. From the above clinical finding about sexual intercourse cannot be told.” [para 7]
The prosecutrix had undergone SRS in 2013. The Supreme Court in 2014 had declared that all transgender persons had a fundamental right to their self identified gender and any insistence on SRS is both illegal and immoral (Directions 2 and 5). Therefore, a transgender person can self indentify as either a man, a woman or third gender (Direction 2). If SRS was not required then there was no reason to medically examine the prosecutrix as to her sex characteristics. Her self-determination as a woman should have been sufficient to place her in the category of “woman” for the purpose of the allegation of rape. Some transgender persons undergo the SRS and some do not. However, that is not a legal requirement to be recognized as either a transgender or a woman as per the NALSA judgment. Instead, this court erroneously relied on the exposition of J. Sikri in NALSA on the experience of SRS. In para 103 of NALSA, J. Sikri explained that SRS is not an overnight process. By this the judge only sought to explain the steps involved in a SRS operation—from the decision, to the hormone therapy and the psychiatric evaluation and then the operation. He did not wish to point out that even after the SRS, the sexual features do not develop overnight, and even if he did, the directions abovementioned given by the full court render inquiry into the state of sex characteristics irrelevant. Therefore, the court’s conclusion that the prosecutrix was not a woman is incorrect in law.
STATE OF DEVELOPMENT OF SEX ORGANS AND IMPLICATIONS OF SUCH INQUIRY: CREATION OF LEGAL SUBJECTS WHO CANNOT BE RAPED (REASON 2)
Reason 2 for the grant of bail stated that the vagina of the prosecutrix was not fully formed, implying that she could not be raped. The court stated: “…further considering the fact that her vagina is not fully developed and the secondary sexual characters are on developing stage, as case of the prosecutrix is falling under Section 375(a) of the Indian Penal Code… this Court is of the view that it is a fit case to release the applicant on bail.” [para 12]. 375(a) of the IPC states that, “a man is said to commit rape if he (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person…”
First, rape under 375(a) can be committed by insertion of penis into places other than the vagina as well: the mouth, the anus, the urethra. There was no reason therefore, for the court’s exclusive focus on vaginal penetration under the 375(a) charge. To be sure, the court did observe that there were no signs of anal injury. Not only is this still an incomplete coverage of 375(a), lack of injury is not determinative of innocence in rape cases—especially ones of this sort. Irrespective, it was not lack of anal injury but absence of a fully developed vagina that featured in the list of reasons provided by the court for granting bail.
Second, 375(a) penalizes non consensual penetration into the vagina, and not non-consensual penetration into a medically correct vagina. Inquiry into the medical correctness and dimensions of the vagina not only misses the point of rape law which punishes “Offences Affecting the Human Body” [Chapter under which Rape Provisions are housed], such inquiries end up creating legal subjects who “cannot” be raped: post- SRS transgender women with incompletely formed vaginas, intersex women with ambiguous genatalia and biological women whose vaginas don’t fit the medical category, for example. For this prosecutrix such a determination has created this quandary: though the court is treating her as a woman because she has undergone the SRS, and the court refers to the prosecutrix with a feminine pronoun, it is implying that the prosecutrix cannot be raped because she does not have a fully formed vagina. At the same time, her SRS operation has taken her out of the category of a man and therefore S. 377, IPC is not attracted. Therefore, she may have been raped but accused, if found guilty, will neither be punished for rape (376, IPC) nor under 377, IPC. Finally, if courts are going to require a medically correct vagina standard to grant relief in rape cases, how will law address rape cases of transgender women who do not undergo SRS? One immediate answer is that such cases may be handled under 377 but this solution leaves the transgender woman divided against herself, a woman for all purposes, but a man for the purposes of rape law. Lawyers, judges, legislators and others in the business of law need to know more about how transgender persons understand their body before they can formulate satisfactory solutions for their criminal law needs.
 Para 12.
 See Section 437 of the Code of Criminal Procedure, 1973: When Bail May be Taken in Case of Non-Bailable Offence.
 For a general understanding on the jurisprudence behind bail see K.N. Chandrashekharan Pillai, “Bail” in R.V. Kelkar’s Criminal Procedure (Eastern Book Company, 2014) 289-344.
 For a contrasting viewpoint, see Abhinav Sekhri, “Reversing the Presumption of Innocence- Part III” http://theproofofguilt.blogspot.co.uk/2015/05/reversing-presumption-of-innocence-part_9.html
 The key question to be answered in this situation is whether the prosecutrix consented to the sexual intercourse only because she believed the accused’s promise to marry to be true? Without expressing an opinion on whether this is a good test, I present some preliminary observations on how the Indian courts apply this test. The court applies the test in this fashion: 1. If there are other reasons which could have influenced her decision, the courts have not found sex based on broken promises to marry as rape. Other reasons include love between the parties, absence of evidence that the accused never intended to keep his promise to marry when he made it, prosecutrix’s consent despite knowledge of insurmountable caste differences etc. 2. There is no hierarchy of reasons– the prosecutrix may have loved the accused but consented to a sexual relationship only because he promised to marry her; the court does not go into this inquiry. 3. The court’s real test appears to be a search for a dispassionate (pun intended) yes in promise to marry cases which connects with how female sexuality is construed. The woman is construed as a passive recipient of sex and therefore any desire on her part to have sex which pre-dates the promise counts against her rape charge. Key cases on this point are: Uday v. State of Karnataka AIR 2003 SC 1639; Deelip Singh @ Dilip Kumar v. State of Bihar AIR 2005 SC 203; Jayanti Rani Panda v. State of West Bengal and Anr. 1984 CriLJ 535.
Curiously, presence of factors other than the promise to marry lead the court to conclude that the prosecutrix could not have really relied on the promise to marry before having sex; love, caste differences etc. weaken the authenticity of the promise. There is of course another way to read these factors which is this: could not the love, the desire to united over caste differences lead the prosecutrix to believe even more in the promise to marry? Not only does the court promote a cynical view of love and sex, it places the burden of this cynicism on the prosecutrix: the prosecutrix should have been aware that the promise to marry could not have been real owing to caste differences; the court doesn’t conclude or raise a presumption that the accused never intended to marry, owing to insurmountable caste differences, when he promised to marry [see this claim esp. in light of how S.114A of the Indian Evidence Act, 1872 shifts the burden of proof on the accused and presumes lack of consent when the prosecutrix in a rape trial alleges lack of consent.]
My thanks to Arushi Garg for pointing me in the direction of the key cases on this topic, and also for the enlightening discussion on the theory and practice of cases concerning sex on a promise to marry. Arushi is a doctoral student in the law department at the University of Oxford. Her research focuses on conviction rates in rape cases in Delhi.