By Neha Tripathi and Vinay Kumar

“I am what I am, so take me as I am” – Supreme Court quoted Johann Wolfgand Von Goethe in Navtej Singh Johar while decriminalising Section 377 of the Indian Penal Code, 1860. With an estimated population of 4.88 million transgender persons, the transgender community in India continues to struggle to have access to basic human rights which are often denied on the grounds of sexuality and other procedural irregularities with respect to lack of societal acceptance and proper government recognition. 

The decriminalisation of Section 377, sprouted the demand for legal recognition of the marriage of transgender persons which has been time and again highlighted by various stakeholders. This has led to a more pressing discourse surrounding the sexual as well as reproductive rights of this community. On 9 February 2023, a transgender couple gave birth to a baby and there have been similar cases of pregnancies among transgender persons in the recent past, urging the need for proper recognition of their sexual and reproductive rights.

In the case of NALSA(2014), the Supreme Court stated and emphasised that gender identification is an essential component for enjoying civil rights by the transgender community. The K.S Puttuswamy judgment (2017) held that the right to privacy extends to the decision of entering into a relationship which forms the foundation of the family. The Madras High Court in 2019 recognized the right of transgender persons to marry individuals of their choice and held that a marriage solemnized between a male and a trans-woman, both professing Hindu religion, is a valid marriage under the Hindu Marriage Act, 1955 and the Registrar of Marriages is bound to register the same (Arunkumar and Sreeja v. Inspector General of Registration). Recently, a trans-man and trans-woman from Kerala approached the High Court in the year 2022 to allow them to register their marriage as transsexual people. 

In India, transgender persons are allowed to register their marriage under the Special Marriage Act, 1954. Although they have to identify themselves as male and female. 

In an attempt to create a safe and inclusive societal environment, the Committee on Economic, Social and Cultural Rights in terms of General Comment No. 14, recommended states to undertake integrated gender perspectives in relation to health policies.  Once the idea of human rights has been streamlined with respect to sexual and reproductive health, extending the same to transgender persons is only plausible and reasonable.

The term ‘reproductive justice’ encompasses freedom from state interference and is deeply rooted in terms of its reliance on the ‘right to privacy’. Reproductive justice and gender justice are both intersectional and aim to enable people of all genders to make their own decisions about their bodies. Thus, protecting the right to self-determination based on gender identity and bodily autonomy forms part of reproductive justice.

Reproductive justice is to be viewed through the lens of constitutional guarantees wherein the constitutional protection against non-discrimination envisaged under Article 14 of the Constitution of India and Article 21 guaranteeing every person’s right to life and personal liberty are read in tune with India’s international obligation, equally shielding and promoting reproductive justice.

According to the UN Special Rapporteur on the right to health, discrimination against LGBTQ or intersex persons has far-reaching health-related impacts. However, the current policies are inadequate to deal with various emergent and contingent issues surrounding reproductive rights in cases of transgender persons. For instance, the Transgender Persons Act, 2019 requires surgical intervention for the issuance of the revised certificate, though the conduction of a hysterectomy or mastectomy would not simply void a gender identity assigned at birth. 

Today, transitioning to a “preferred gender” does not necessarily remove the ability to procreate, as a result, trans people are becoming parents through sexual intercourse, sperm donation, or assisted reproduction techniques after transitioning. There is a need for sexual health education to address and include transgender people’s bodies and identities and improve the access to comprehensive reproductive healthcare facilities. 

With a visible departure from the conventional ideas relating to marriage and procreation and more cases relating to marriages emerging in trans people, between trans men and trans women, there is a revived need to study the issues surrounding marriage, family, and parenthood. Therefore, it is advocated to have a justice-based approach to the issue and avoid assigning binary gender identities to trans individuals which further increases their marginalisation and affects their access to health services. 

Neha & Vinay are Assistant Professors at Maharashtra National Law University, Aurangabad.

The Analysis (TA) is a legal advocacy and research group working on the issues of environment, health, gender, law and human rights. Feel free to share your submissions with us at contact@theanalysis.org.in