Refuting the said contention, the Madras High Court categorically held that “the second petitioner herein has chosen to express her gender identity as that of a woman. As held by the Hon'ble Supreme Court this falls within the domain of her personal autonomy and involves her right to privacy and dignity. It is not for the State authorities to question this self determination of the second petitioner herein”. The High Court referred to the Supreme Court decisions in NALSA, right to privacy, and decriminalisation of homosexual acts [Navtej Johar & Anr. V. Union of India, 2018 (10) SCC 1], wherein it upheld the fundamental right of transgender persons to identify as male or female or third gender, and entitled to the fundamental rights to equality, non-discrimination, freedom of gender expression, privacy, dignity, autonomy and health guaranteed under Articles 14, 15, 19(1)(a), and 21 of the Constitution.

The High Court further held that the word ‘bride’ in Section 5 of the HMA cannot have a static or immutable meaning, but has to change with time. It aptly noted that “for too long, the transgender persons/intersex people have been languishing in the margins. The Constitution of India is an enabling document. It is inviting them to join the mainstream. Therefore, it would be absurd to deny the transgenders the benefit of the social institutions already in place in the mainstream”.

Accordingly, the Court concluded that “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/transgender person who identifies herself as a woman. The only consideration is how the person perceives herself”.

As evident, the Madras High Court decision is landmark from various aspects, including that for the first time, the Supreme Court decision in NALSA has been applied to an existing statute, that too in the complicated issue of marriage law, and followed upon. In effect, this judgment would open the doors for transgender persons to access other civil rights in terms of inheritance, succession, adoption, etc. It would also mean that NALSA has to be applied to all existing laws, including criminal law, income tax, and other gender specific laws, and transgender identity ought to be recognised. Furthermore, this decision would bring huge cheer to the transgender persons who are in relationships and require legal recognition to access other rights. Anecdotal evidence suggests that many transgender women are often in abusive and exploitative relationships, but do not get out of them, since there is no alternative and State legitimacy is non-existent. Now with the present decision, it is hoped that transgender persons would feel empowered to form healthy and meaningful relationships, and would be able to protect their rights, in case of divorce or judicial separation.

Though this is a High Court decision, since it involves the interpretation of a Central law, the decision is applicable to the whole of India, unless another High Court gives a contrary judgment. As the decision states, the march of law cannot be stopped, and the legal recognition of transgender rights has to inform all our existing laws, as well as future laws and policy. (IPA Service)