Tiara Chacko, School of Law, Christ (Deemed to be University)
ABSTRACT
Historically, the term ‘gender’ was synonymous with ‘sex’ and was viewed from the sole perspective of biology. During the era of colonization by Western forces, this outlook was reinforced further. As an extension, stereotypes regarding the two recognised gender identities, male and female, were imposed on the members of the society based on their biological attributes. As time progressed, people started to recognise gender as a social concept and distanced it from sex which continued to have purely biological connotations.1 However, conventional views on gender continue to be rampant and members of the transgender community still struggle to be accepted in society. This extends to availing personal rights such as the right to marry a person of their choice.
Marriage is a concept rooted in tradition and cultural norms, and the legal aspect primarily reflects the same. The conventional perspective of marriage continues to be a union between cisgender men and women. In the decades of its implementation, the marriage laws in India have not been amended to be inclusive of the various gender identities other than male and female. Several legal definitions and statutes are heavily curtained with gender specificity. By having gender specific legislation, the laws seem to exclude individuals who fail to fit in their binary. This deprives them of basic, fundamental rights granted to the citizens of the country such as the right to marry. From a human rights perspective, it is essential to focus on the impact of the current marriage laws on members of the transgender community and analyse whether the language used in personal laws is too gender-specific to include diverse gender identities. Conversely, the impact opting for a wider interpretation of the term ‘gender’ on the current marriage laws must also be considered while exploring the viability of amending the same.
Keywords: transgender, marriage, personal laws, India, gender binary
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