The Madras High Court, in a landmark move, redefined the Hindu Marriage Act by specifying what the term "bride" actually refers to. According to Justice Swaminathan, the term should not be constricted to simply individuals who are born as women, but to anyone who identifies as such.
Nevertheless, he also mentions that by ruling so, "this Court is not breaking any new ground. It is merely stating the obvious."
A couple, Arun and Sreeja had moved the court when a marriage registrar refused to issue them an official marriage certificate on grounds that Sreeja did not fulfill the necessary criteria for being a "bride." Sreeja was born an inter-sex child, and she identifies as female.
What is most interesting is the fact that Justice Swaminathan also fell back on theories established in the ancient epics, Ramayana and Mahabharata to establish a firm foundation for his ruling.
In particular, he referred to two tales - that of Aravan and Krishna and that of Shikhandi.
In Mahabharata, Aravan had agreed to sacrifice himself to secure Dharma. But he had one condition. He wanted a widow to weep for him when he died the next day. Unfortunately, there was no woman who was willing to marry him just for one night, only to be widowed the following day.
But the Pandavas had to find a means of fulfilling the last wishes of a sacrificial man. With no woman stepping up to the occasion, Krishna transformed himself into a woman. Mohini, as he came to be known, married Aravan and wept the next day when Aravan martyred himself.
The myth of Aravan is greatly revered by the trasgender community who use it to validate and explain their existence in a society that is steeped in stigma and taboo.
Justice Swaminathan failed to see the logic behind the registrar refusing to issue them a marriage certificate. According to him, transgenders are guaranteed the same set of laws that apply to other sections of the society as well. He ruled, "Transgender persons who are neither male/female fall within the expression ‘person’ and hence entitled to legal protection of laws in all spheres of State activity as enjoyed by any other citizen of this country."
The second tale, that of Shikhandi, is a well-known one. A significant character in the Mahabharata, Shikhandi was originally born a female but eventually grew up to be male. Shikhandi, who was earlier named Shikhandini, fought with Pandavas in the Kurukshetra war.
Well, if the Vyasa could understand the fine line between gender and sex centuries ago, why is it so difficult for the so-called intelligentsia of today to comprehend?
In his judgement, Justice Swaminathan draws heavily on these stories and clearly differentiates between sex and gender. Sex is biological, and it is determined at the time of birth based on their genitalia. However, there is one category that fits into neither male or female. These children are, by birth, inter-sex. As such, the two "sexes" of male and female do not apply to them. Herein comes the whole concept of gender. Gender is much more fluid, and attributed by the society. In other words, a person has the right to identify as a particular gender irrespective of his or her sex. And Justice Swaminathan, drawing on the Supreme Court's ruling, said that transgender persons have the right to self-determine their gender.
“The expression “bride” occurring in Section 5 of the Hindu Marriage Act, 1955 cannot have a static or immutable meaning."
As Justice Swaminathan said, the transgender community has been largely marginalized in India. However, it makes you think. If writers centuries ago could envision a society where transgenders were given equal status, why does it seem so obnoxious a concept now? Most importantly, when we speak of equality, we aren't just speaking of the law; we also refer to the stereotypes so deeply ingrained in our minds that we aren't able to look beyond them.