Transforming Rights: Transgender Lives Against Legal Exclusion| Book Excerpt

Bell Hooks said, ‘Love is an action, a participatory emotion,’ but sadly, for transgender-queer folx, love remains a silenced feeling buried deep in the chambers of their hearts, for love
as an action and in its momentum is thwarted by State and society. Love and family—in our collective imagination—like everything else, is seen through the lens of heteronormativity,
biology and the gender binary, and any act of digression invites penalties. In a world where even rights are pathologised, transgender2 persons are restricted to discussions about their
bodies, and rarely do the conversations transcend superficiality or attempt to understand transgender persons as bodies with emotions—capable of loving and being loved. The inherent desires to form intimate relationships, have children and establish families are systematically denied to transgender persons through various acts of commission and omission.

The naturalisation of trans persons’ non-existence as equal citizens is ensured by laws and policies that treat transgender, non-binary and intersex persons as less than equal, and by denying them the rights readily available to those that form the perceived normative. As Taylor Flynn aptly highlights, ‘We live in a highly gendered society where sex distinctions have significant legal consequences, particularly within the realm of family—these distinctions affect issues including whom you can marry, whether you can inherit your spouse’s estate, or whether you provide an “appropriate” role model for your children.

The emotion of love extends to the various relationships that we form throughout our lives and is subject to the State’s architecture of control; the relationships that citizens forge around blood, community, cast and class are defined and certified by the majoritarian morality and the State. The interference of the State in our personal lives—love, marriage kinship, family, property and inheritance—passes unnoticed till we go against and challenge the system approved by it—a system that is patriarchal, casteist, endogamous and heteronormative.

The right to love becomes subversive when it does not align with the frameworks of caste, patriarchy and heteronormativity. As Arvind Narrain writes, ‘What links queer people to couples who love across caste and community lines is the fact that both are exercising their right to love at an enormous personal risk and in the process, disrupting existing lines of social authority.’

Love, marriage and family formation seem like ordinary tasks and rarely do cisgender-heteronormative people perceive them as a matter of rights—unless the exercise of those rights is obstructed and denied. However, for transgender and nonbinary persons, the right to love, marry, have children or make families is denied legitimacy or legal recognition altogether.
Family in our society is defined in structural terms, with patrilineal underpinnings. The members of one’s family must be related to each other through marriage, blood or adoption…

It is important to recognise that the chosen families and kinship networks of transgender persons are often functional in nature, and at times a blend of both structural and functional, but rarely do they align with the narrowly defined structural models legitimised by law. These familial bonds revolve around the core functions that a family performs, such as caring for each other and the sharing of resources. Marriage, being the foundation of the Indian family system, is reserved for unions that conform to a cisgender, binary, heterosexual framework. The law and language governing love, marriage, family and property continue to exclude transgender persons, reinforcing a patrilineal and cis-heteronormative structure.

The denial of love, marriage, kinship and family extends and permeates further into the right to reproduce and/or have children, and lead a healthy sexual and reproductive life. Law, language and healthcare coalesce to ensure the exclusion of transgender persons.

The Love That Dares Not Speak Its Name

The ideas of love, marriage and family—from recognition to regulation—have historically been subject to State and societal interference.

As Saurabh Kirpal observes in his essay:
If dignity and autonomy are the pillars of the constitution, there is possibly no greater manifestation of that autonomy than the right to choose a sexual partner. And nothing is a greater expression of that choice than marriage. It seems apparent that both the right to choose a partner and the right to marry are intensely personal choices over which the state and the community really ought to have no control…

The decision of the Madurai Bench of the Madras High Court in Arunkumar v Inspector General of Registration is a milestone in the affirmation of marriages of transgender persons. The Court, in line with the NALSA, Puttaswamy and Navtej Singh Johar judgments, held that the word ‘bride’ in Section 5 of the Hindu Marriage Act, 1955 includes intersex and transgender persons who self-identify as woman. The judgment is significant as it gives legality to a marriage between a trans woman and a cisgender man, and further provides scope for interpreting the Hindu Marriage Act in light of the aforementioned judgments, so that it includes both trans and intersex persons.

However, the scope of the judgment remains limited, as it can be read to validate only those marriages that are heterosexual in nature—such as between a trans person and a cis person, or between two trans persons (a trans woman and a trans man)—thereby continuing to exclude same-sex, non-binary and gender-nonconforming partnerships from its protective ambit. This was affirmed in Supriyo alias Supriya Chakraborty v Union of India.      

The most recent constitutional moment in the marriage equality struggle came in Supriyo. The judgment marked a watershed moment in form, but not in substance. Despite the progressive language employed—on love, dignity, autonomy and non-discrimination—the judgment ultimately offered queer persons in India little more than symbolic affirmation.
The Supreme Court declined to declare marriage equality a fundamental right, thus refusing to extend the guarantees of Articles 14, 15, 19 and 21 to queer couples in any meaningful manner.
Instead, the court proposed a ‘right to cohabit’27 and directed the Union government to form a ‘High-Powered Committee’28 to examine the rights and entitlements of queer couples. The Court’s suggestion that queer persons can cohabit and form unions but cannot demand legal recognition for those unions is both hollow and performative, offering no access to the bundle of legal protections associated with marriage—such as inheritance, adoption, medical consent, spousal privilege, joint property ownership or next-of-kin status.
The decision also reflects a disturbing judicial trend of offloading structural reforms to the executive, particularly in cases involving marginalised communities. The formation of committees—often projected as a solution—has become a pattern. These committees are rarely representative, lack clear timelines or enforceability, and seldom lead to legal change.
Queer persons are once again asked to wait, to make peace with partial dignity and invisible citizenship. As such, Supriyo reveals how the court’s interpretive tools—transformative constitutionalism, non-discrimination and dignity—can be invoked yet rendered meaningless in practice. The promise of dignity rings hollow when it is not accompanied by structural inclusion, enforceable rights and affirmative legal reform…

TGNB and intersex folks cannot be denied enjoyment of these rights through laws based on cisgender-heteronormative norms that either actively exclude or fail to include them. As the courtroom battles for queer rights have shown, the full force of State resistance, coupled with opposition from orthodox institutions, continues to deny queer persons the right to legally form families.
Still, in the face of this exclusion, courts have occasionally pushed boundaries. In Sweety (Eunuch) v General Public, the Himachal Pradesh High Court validated the guru-chela relationship within hijra communities as a legitimate basis for inheritance, recognising chosen families outside the bio-legal structure. More recently, the Kerala High Court, in a landmark decision, directed authorities to issue a child’s birth certificate using the gender-neutral term ‘parent’ for a trans man and trans woman couple, instead of imposing the binary ‘mother’ and ‘father’ labels. In another instance, a trans woman was allowed to be the sole parent listed on her child’s passport, providing visibility to transgender-led families. These judgments mark slow but meaningful progress in recognising that families are formed not just by blood, marriage or adoption but also through care, responsibility and chosen kinship.
Yet, these developments risk remaining symbolic if not accompanied by structural changes.

This excerpt from Transforming Rights: How the Law Shapes Transgender Lives, Identity and Community, edited by Jayna Kothari, has been taken with permission from Westland Books