The Madurai Bench of the Madras High Court upholding the marriage between a man and a transwoman has been hailed by LGBTQI+ activists as a historic, progressive and landmark verdict.
In his order, Justice G.R. Swaminathan observed that when a person has chosen to express one’s gender identity as that of a woman, it falls within the domain of her personnel autonomy and involves her right to privacy and dignity. It is not for the State authorities to question this self-determination, the court said, ordering the registration of the marriage that was refused by authorities.
The court said the marriage of the couple from Thoothukudi was solemnised at a Hindu temple as per Hindu rights and customs and their right to practise a particular religion was recognised under Article 25 of the Constitution.
The expression ‘bride’ occurring in Section 5 of the Hindu Marriage Act, 1955 will have to include within its meaning not only a woman but also a transwoman. It would also include an intersex person, who identifies herself as a woman. The only consideration is how the person perceives herself. the court said.
The court directed the Health and Family Welfare Department to prohibit the sex selective surgeries on intersex infants and children and file a compliance report in eight weeks.
Reacting to the judgment, activist Gopi Shankar said the verdict was significant in more than one way. “By directing the prohibition of selective surgeries on [intersex] infants, the identity of an infant is protected. The Constitution mandates the protection of bodily integrity which needs to be upheld,” he said. He added that perhaps Tamil was the only language that had specific words for sexual orientation.
‘Create awareness’
LGBT rights activist Anjali Gopalan called the verdict a progressive one. She said the prohibition on selective surgeries on [intersex] infants was significant. “Many people at a later time do not identity with their gender. The prohibition would protect the right of an individual right from his/her birth,” she said.
The court drew inference from mythology (Mahabharata and Ramayana), traditional lore to modern neuroscience.
Ordering the State to create an awareness campaign in this regard, the court said recent Tamil films like Peranbu and Super Deluxe were encouraging trends.