Trans women have always married in India — it’s the law that needs to catch up (2023)

As the Supreme Court prepares to hear a batch of petitions demanding marriage equality, trans women say their marriages need legal recognition, and their rights, protection.

Maya SR Nayak got married to her partner at a temple in her village in Karnataka's Yadgir district, after managing to convince his family and the people who live in the village. He tied a thaali around her neck, and they started living together as husband and wife. It was no easy task, considering Maya is a transgender woman and faces constant discrimination. "You have to understand this isn't a big city like Bengaluru," she says, during an interaction about the marriage equality petitions filed by two trans activists from Karnataka. Maya is the state convenor of the Federation of Karnataka State Sexual Minorities Coalition for Convergence and the founder of Ashakirana Seva Samsthe, Yadgir. "After all this, after they all accepted me, my husband decided to marry a cis woman because he wanted children. I supported his second marriage, stood with them during the ceremony. Slowly, he stopped spending time with me. They have a child now, and there's nothing I can do to demand my rights," Maya says, "because the law doesn't give me any rights. I can't go to the police, they will only laugh in my face. I can't even get into another relationship because I got married to him in front of the whole village, and will be judged by people if I live with someone else."

Maya’s story is a reflection of the lives of many transgender women in the country who marry cis men in religious or civil ceremonies, but cannot really get the marriage registered because it is defined as a legal contract between a 'man' and a 'woman' under Indian laws governing marriage. Some trans women and trans men in the country have managed to get their marriages registered because their documentation identifies them as 'male' or 'female' and not transgender. But the number is small — and many of them don't know whether a court of law will stand by them if their marriage is challenged. "No law in the country explicitly states that transgender persons can get married," explains Uma, a trans rights activist from Karnataka and one of the petitioners in the Supreme Court demanding marriage equality for persons of all genders and sexualities.

As the court gets set to hear the petitions on March 13, we spoke to trans women, activists, and lawyers who say marriage is not 'new' for trans women. What a revision in law will do, however, is give them rights that they deserve as citizens, rights that 'legally married' cisgender, heterosexual couples already enjoy. The right to be recognised as someone's spouse, the right to be there for them during a medical emergency, the right to protection from domestic violence, the right to divorce, the right to shared property…

Why trans women want marriage equality

In November 2022, two couples filed a writ petition before the Supreme Court, alleging that the Special Marriage Act (SPA) of 1954 discriminates against them by denying same-sex couples the right to marry. They argued that Section 4(c) of the Act recognises marriage only between a male and a female. This denies queer couples rights like adoption, surrogacy, and relief in case of abandonment or violence, they said.

By then, many such petitions were pending before various courts across India. On January 6 this year, a Supreme Court bench headed by Chief Justice DY Chandrachud ordered the transfer of all similar cases pending before the High Courts to the Supreme Court, and listed the matter for hearing on March 13, 2023.

Trans women have always married in India — it’s the law that needs to catch up (1)
The wedding of trans woman Sreeja and cis man Arun Kumar was officiated by trans woman Bharani after a Thoothukudi temple management refused to do it

Uma, the Executive Director of Jeeva, a Bengaluru-based LGBTQIA+ advocacy group, has filed a petition along with Akkai Padmashali, another transgender rights activist from Karnataka, asking for marriage equality under the Special Marriage Act. This fight, Uma says, is about honouring her desires as a woman. “I have my own imagination about my life. I want to have a husband, start a family, adopt children, and live like other women. But the law gives trans women like me no option to do this unless we transition and change our gender to female on paper. This procedure is not easy or accessible to all, and our lives are kept on hold until this change reflects on paper,” Uma says.

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A legal marriage is important for vulnerable persons for many reasons. Sreekutty, a trans rights activist from Kerala, says the absence of legality makes many men feel that they can do as they please. “Many men come to ‘secretly’ live with us, only for sex. This is also because trans women are sexualised by society. We are still not accepted as women who desire love, companionship, and dignity. As for men who may want to embrace the relationship, they feel ashamed to be seen with us as lovers or partners in the open. They are ridiculed for many reasons, and even those who may have genuine intentions check out after a while. There have also been many instances of vigilante justice and attacks on trans women who are seen in public with cis men,” she says.

Uma recalls an incident from Raichur in north-east Karnataka. “A trans woman in the district who used to beg on trains, fell in love with a tea seller, a cisgender man. They had a ritualistic marriage with support from members of the trans community. But when the pictures began to circulate on social media, his parents filed a complaint against the woman accusing her of manipulation and blackmail. This was a time when Section 377 had still not been decriminalised. The police threatened her, and the man went back to his family under duress,” Uma says.

Trans women have always married in India — it’s the law that needs to catch up (2)
Two days after trans woman Radhika married Shivakumar in June 2016, the latter’s family took him to the police station, where they were threatened with section 377

Vijaya*, a trans woman from Karnataka, says that a number of cis men sexually exploit trans women and take off without any sense of accountability. “Many trans women are not aware of their rights. They fall for the promise of love and security that these men make and end up being manipulated into sex and cohabitation. Most men promise marriage but never follow through. There have also been cases where trans women have died by suicide or resorted to self-harm to cope with abandonment,” she says.

Transgender rights advocate and RTI activist Vyjayanti Vasanta Mogli, who hails from Hyderabad and is one of the petitioners in the Supreme Court, says that sometimes, men also exploit trans women financially, and leave once they find better prospects. “There are cases where the women pay for the education of their cis lovers and sustain them for years. They do it out of genuine love for their partner. But in most cases, the men leave once they find other women. When the woman resists, they are abused, or even killed,” she says.

A large number of transgender persons are abandoned by their birth families because of their identity. Uma says this already takes a heavy toll on their emotional well-being, putting them in a space of vulnerability. In such a situation, they feel deprived of affection and easily fall prey to men who breadcrumb them with the promise of companionship, children, and support in their old age.

“We cannot claim assets or property in maintenance, or file for domestic abuse in such situations. The same thing happens with adoption. Since the marriage itself is not legal, there is no way for us to adopt children,” says Uma.

“Everything will not be a bed of roses for trans women once marriage equality gets legal recognition. This is because society needs to expand its morality to accept trans individuals. But the fact that trans women will have a legal remedy in case of domestic violence, dowry harassment, abandonment, and the like, is definitely going to make men think twice before they approach us,” adds Sreekutty.

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Trans women have always married in India — it’s the law that needs to catch up (3)
Kalki and Basheer faced threats from the latter’s family after they got married at a temple in Madurai. They had to approach the District Collector seeking protection

Changing the law

Advocate Jayna Kothari is representing Akkai and Uma in their petition, and explains that they are asking for terms like 'husband', 'wife', 'man' and 'woman' to be replaced by terms like 'spouse' and 'person'. “Our system only allows men and women to marry. It excludes everyone outside the binary. People who are unable to transition into either of the binaries find it difficult to love with dignity or marry in this scenario,” she tells TNM.

As of now, in India, for a trans woman to be able to legally marry a man, she must have her gender changed to female on all records. The Transgender Persons (Protection of Rights) Act of 2019 governs this process. “When a person decides to transition, first, they have to obtain a certificate of Identity which says transgender, and once the process of transition is 'complete', they must produce medical documents and effect the change in gender. This is the biggest hurdle for trans women who want to marry. The process is never-ending and also mostly digital. It is not accessible to everyone,” Jayna explains.

On ground, the process is more difficult than even the law makes it. “Even if a trans woman manages to get her documents in place, sometimes, marriage registrars refuse to register the marriage. There are also people who file Public Interest Litigations challenging the validity of such marriages because the society is still very reluctant to accept trans women as women,” says Uma.

Vyjayanti says, “Marriage registrars keep applications in limbo most of the time. People are then forced to approach the court and obtain orders directing the registrar to officiate their wedding. This is the case with people who have transitioned. But those who have not transitioned cannot do this without going through legal hoops. They get exhausted and drop out,” says Vyjayanti, who is also one of the petitioners in the Supreme Court.

Trans women have always married in India — it’s the law that needs to catch up (4)
Surega married Manikandan in Coimbatore in February 2018, but they were forced to approach the Collector for their marriage certificate in 2020 after the Registrar’s office raised objections

Advocate Aravind Narrain, who works closely with the petitioners from Karnataka, says that the purpose of pressing for marriage equality is also to broaden the debate beyond same-sex marriages. “The larger issue here is that marriage must be legally seen as a union between two people, and not any two particular genders. Akkai Padmashali, a trans woman, author, and noted trans rights activist from Karnataka, who is also a petitioner in the case, is legally married. She was able to have her documents in place and register her marriage. Yet, she is also a part of this fight, for the larger well-being of the LGBTQIA+ community and to make the concept of marriage gender inclusive,” he says.

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Akkai Padmashali has been the face of the Karnataka government’s transgender rights policies when the Congress was in power between 2013 and 2018. Akkai got married to her partner Vasu on January 20, 2017, and a year later, on January 23, 2018, their marriage was registered under the Special Marriage Act — believed to be a first in Karnataka.

Trans women have always married in India — it’s the law that needs to catch up (5)
Trans activist Akkai Padmashali marries her partner Vasu on Jan 20, 2017, a year after which the marriage was registered

Speaking to TNM, Akkai says, “The provisions under the Special Marriages Act have been given to certain sect ions of people, especially inter-caste, inter-religious couples. I think that's a privilege that we're enjoying. Under that Act, my marriage was brought under the law. My advocate, Jayna Kothari, stood with me during this whole process.”

“After my marriage, almost 30 marriages have been registered. I think it’s a good sign. And now the social construct, which assumed that we're only for sex work and begging, is slowly being eradicated, and they say yes, their lives also matter,” Akkai says.

“These petitions are not just about same-sex marriages," Jayna says, "When a trans woman marries a trans man, for example, it is still a marriage between a man and a woman. We are trying to stretch the Special Marriage Act to include marriage as a right accessible to all individuals."

Trans women have always married in India — it’s the law that needs to catch up (6)
Trans man Arun Faiz and cis woman Aruna devi had a self respect marriage on February 14, 2023

“The petitions definitely seek to address the conflicts of trans women, but their scope is not limited to that alone. The Special Marriage Act has problematic procedures like a 30-day notice prior to registering a marriage. The bona fide purpose of this is to ensure that people who are already married do not marry again to commit fraud. But why put that on a notice board? Even government jobs do background checks, but they do not publicise personal information to do it. Such publication is an infringement of agency,” Vyjayanti points out.

“These petitions are a continuation of the long fight for inclusivity. They are of course, not going to be enough, but they will act as an action point to further the rights of the trans community. We must fight this out to give teeth to the NALSA judgement,” she adds.

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Addressing the critique of marriage

The institution of marriage itself is critiqued as being anti-female and patriarchal in the broader feminist discourse. There are many who say that pushing for marriage equality may not be ideal, since it ties LGBTQIA+ individuals back into the same problematic gender roles that they are trying to escape. But many trans women dismiss this as an elitist claim. “The ground reality is very different from heightened political discussions on marriage. It is a very layered topic," says Vyjayanti, "We do see how single women are policed by society and what happens to them without a male companion. It is not easy to persist. People like me who do not want to marry are free to do that. But what right do I have to stop others from wanting to marry?”

“Even today, marriage is considered the most socially acceptable way of cohabitation between two individuals," Uma says. "Trans women already have too many battles to fight on a daily basis. This is about a community of women who are only beginning to feel accepted by society. In rural spaces, especially when we factor in aspects like caste and socio-economic status, social acceptance through marriage is still very important for many trans women since they do not want to further live as outcasts in a society that already scrutinises their lives,” she says.

“I have received many proposals from men to be in live-in relationships. But I want a legal marriage because that is what is widely accepted by society even today. I want that sense of security,” Sreekutty says.

“This is not to say that all marriages are rosy, or that all families are functional. But we cannot compare or be stubborn about retaining any one narrative alone. When cisgender women have a choice to marry or not, trans women must also have that choice,” Uma says.

This reporting is made possible with support from Report for the World, an initiative of The GroundTruth Project.

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Trans women have always married in India — it’s the law that needs to catch up (7)

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