INTRODUCTION TRANSGENDER RIGHTS IN INDIA

"Transgender Rights" In a landmark order, the Kerala High Court has ruled that transgender individuals can be recognised as “parents” on birth certificates of their children. This move is a step towards inclusivity and moves away from the traditional binary labels of “mother” and “father”. This ruling not only acknowledges the diverse identities within the transgender community but also reinforces their rights to family and parenthood.

The judgment is in line with the legal framework established by Transgender Persons (Protection of Rights) Act, 2019, which gives rights to transgender individuals to self-identify their gender and mandates the correction of official documents to reflect this identity. While the judgment is progressive in nature, it highlights the gaps that still exist in our legal system regarding the adaptation transgender rights of transgender persons. Despite the recognition of transgender persons as the 'third gender' by the Supreme Court in 2014 and the enactment of the 2019 Act, there is still a lack of explicit provisions that govern the rights of transgender persons to adopt children. 

This blog discusses the Kerala High Court’s decision, examines its impact on the recognition of transgender as parents. It also explores the legal provisions, judgments, as well as challenges surrounding adoption rights for transgender individuals in India.

KEY INFORMATION REGARDING THE KERALA HIGH COURT JUDGMENT

A petition was filed in the High Court by Zahhad (who is a transman) and Ziya Pava; (who is a transwoman). They are said to be Kerala’s first openly transgender couple to have a biological child. Zahhad gave birth in February 2023, and the civic body of Kozhikode issued a birth certificate that listed Zahhad as the “mother” and Ziya as the “father,” ignoring their self-identified genders. The body denied their plea to be recognised as “parents” which made them move to the High Court. The couple was represented by Padma Lakshmi, who is Kerala’s first transgender lawyer. The main argument presented in court was that the denial of the request violated Article 14 (Fundamental Right to equality), and the couple sought a gender-neutral revision under the Kerala Registration of Birth and Death Rules, 1999. The couple wanted ‘parent’ as a gender-neutral replacement for “father/mother”. While Zahhad had given birth to the child, but had been identified as male for years.

The bench of Justice Ziyad Rahman AA in this case (Zahhad & Ors. v. State of Kerala) ordered the corporation to remove the gendered columns from the birth certificate and list both petitioners as ‘parents’. The mandates are to revise the birth certificate within two months. 

BACKGROUND OF RECOGNITION OF TRANSGENDER RIGHTS IN INDIA

India’s journey towards recognising the transgender rights and individuals started a long way back. The transgender community was revered in ancient India, and their importance can be seen in Vedic Texts and in Hindu Mythology. However, the perception changed significantly during the era of British colonisation. The Criminal Tribes Act was enacted in the year 1871, which had a negative impact on the perception. This act classified some communities, including the transgender community, as prone to criminal activities. This led to stigma against the community. Even after the revocation of the act, transgender individuals continued to face marginalisation. 

However, since independence, many progressive steps have taken place. The key moments are listed in this section.

National Legal Services Authority v. Union of India (2014) 

The National Legal Services Authority (NALSA) filed a Public Interest Litigation (PIL) in 2012 with the Supreme Court of India. This PIL relates to the rights of transgender people. The judgment was delivered on April 15, 2014. The court recognised rights of transgender individuals in this judgment. It affirmed that fundamental rights given in the Cnstitution of India applies to transgenders as well. This judgment called for the right of transgender persons to self-identify their gender, whether as male, female, or third gender, without the necessity of medical procedures. The Court emphasized that non-recognition of their gender identity violates Articles 14, 15, 16, and 21 of the Constitution. 

The Transgender Persons (Protection of Rights) Act, 2019

After SC’s NALSA Judgement, the Indian Parliament enacted this act. This piece of legislation aimed to provide a framework for the protection of transgender persons. The Act recognizes the right of transgender individuals to self-identify their gender. They can apply for a certificate of identity from the District Magistrate, affirming their gender as transgender. 

TRANSGENDER INDIVIDUALS’ ADOPTION RIGHTS IN INDIA

The adoption rights of transgenders are complex and filled with challenges. Adoption is governed by two statutes in India. The first one being the Hindu Adoption and Maintenance Act (HAMA), 1956. It is applicable to Hindus and permits adoption by a Hindu male or female but it does not recognise transgender individuals. This leads to a legal gap where no explicit eligibility to adopt is mentioned. 

Another act is Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act). This act provides a more inclusive framework. It allows ‘any person’ to adopt without specifying gender. Under the JJ Act, the Central Adoption Resource Authority (CARA) oversees the adoption process. However, the CARA’s adoption forms use binary language and applicants have to identify as either ‘mother’ or ‘father’. In Arun Kumar & Anr. V. Inspector General of Registration &Ors. (2019), Madras High Court recognised a transwoman as a legal “mother’ of the child. Despite this progressive judgment, statutes and adoption procedures have not been made more inclusive. 

In the case of Zahhad & Ors. v. State of Kerala, where the transgender individuals are the biological parents, the court has chosen an inclusive approach, however, transgender couples might face rejection in case they apply under CARA’s binary frameworks. This highlights a contradiction in law.  

CHALLENGES AND WAY FORWARD

Even though the Kerala HC’s judgment is a step towards an inclusive world but it also shows that systematic barriers exist in today’s world. Transgenders still face stigma and child welfare committees often hold unconscious biases against them such as ‘will the transgender individual be able to provide a stable environment at home?’ or ‘will the child face bullying or social exclusion?’. Such prejudices still affect decision-making. While the Transgender Persons (Protection of Rights) Act, 2019, affirms the right of transgender persons to live with dignity, it does not explicitly address adoption rights. 

There is a need to address these challenges through legal reforms that recognise the adoption rights of transgender persons. This will help in providing clarity and also promote equality and inclusivity. Sensitisation programs and awareness can help battle societal stigma and marginalisation. 

CONCLUSION

Kerala High Court’s judgment marks a significant milestone in India’s journey to an inclusive society. This ruling aligns with Transgender Persons (Protection of Rights) Act, 2019, as well as fundamental rights, enshrined in the Constitution of India. This judgment also shows that our frameworks still require a lot of work to fill gaps and prejudices. At any rate, many challenges are still there that require a multifaceted approach to solve. Through legislative reforms and promoting social acceptance, India can move closer to an inclusive future where all individuals get to experience the joys and responsibilities of parenthood whilst fully expressing their gender identity. 

AUTHOR: SARGUN SINGH

REFERENCES

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