Draft Proposal for Constitutional Amendment on Transgender Marriage and

Adoption in India

Preamble:

Recognizing the inherent dignity and the equal and inalienable rights of all members
of the human family, this Constitutional Amendment aims to secure equality, liberty,
and justice for transgender persons in India. This amendment seeks to recognize the
rights of transgender persons to marry and adopt, ensuring they are afforded the same
protections and rights as any other individual, thus affirming the values of inclusivity
and equality enshrined in the Constitution of India.

Section 1: Definitions

1. Transgender:
Transgender persons are individuals whose gender identity does not align with
the sex assigned to them at birth. This includes those who identify as a trans
man, trans woman, non-binary, genderqueer, or any other gender identity that
differs from their assigned sex at birth. The term "transgender" is inclusive of a
wide spectrum of gender identities recognized across various cultures and
societies.
2. Sex:
Sex refers to the classification of individuals as male, female, or intersex based
on biological characteristics, including chromosomes, hormones, and
reproductive/sexual anatomy.
3. Gender:
Gender is a social construct that refers to the roles, behaviors, activities, and
attributes that a given society considers appropriate for individuals based on
their sex. Gender identity is an individual’s personal sense of their gender,
which may or may not correspond with their sex assigned at birth.
4. LGBTQIA+:
LGBTQIA+ is an inclusive term that stands for Lesbian, Gay, Bisexual,
Transgender, Queer, Intersex, Asexual, and other gender and sexual identities.
It encompasses a broad spectrum of sexual orientations, gender identities, and
expressions.

Section 2: Right to Marriage

1. Recognition of Transgender Marriage:

This amendment recognizes the right of transgender persons to marry in
accordance with their gender identity. The right to marry shall not be denied or
abridged by the State on the basis of an individual’s transgender status, gender
identity, or the gender of their partner.
 2. Amendment to Article 21 (Right to Life and Personal Liberty):
The right to marry, as an aspect of the right to life and personal liberty under
Article 21, shall be extended to all individuals irrespective of their sex, gender
identity, or sexual orientation. The State shall ensure that no law, regulation, or
administrative action discriminates against transgender persons in exercising
their right to marry.
3. Amendment to Article 15 (Prohibition of Discrimination):
Discrimination on the grounds of sex shall include discrimination on the
grounds of gender identity. No person shall be discriminated against in
accessing the institution of marriage on the basis of their transgender status or
sexual orientation.

• Insert a new Article (e.g., Article 21A): Explicitly recognize the right to marry
and found a family, without discrimination based on sexual orientation, gender
identity, or expression.
• Schedule III (Forms of Oaths and Affirmations): Update the marriage oath to
include same-sex couples and transgender individuals.
• Schedule VII (Union, State and Concurrent Lists): Ensure that marriage laws
are governed by the Union List, allowing for uniform nationwide legislation.

Section 3: Right to Adoption

1. Recognition of Adoption Rights for Transgender Persons:

This amendment affirms the right of transgender persons to adopt children
under the same conditions and regulations applicable to other individuals.
Adoption laws shall be amended to ensure that transgender persons are not
discriminated against in the adoption process.
2. Amendment to Article 39 (Directive Principles of State Policy):
The State shall ensure that children have the right to a family environment that
provides care, love, and support, regardless of the gender identity of the
adoptive parent(s). The welfare of the child shall remain the paramount
consideration, and the gender identity of the adoptive parent(s) shall not be a
basis for denial of adoption.

Section 4: Judicial and Legislative Precedents

• Navtej Singh Johar v. Union of India (2018):

In this landmark case, the Supreme Court of India decriminalized consensual
same-sex relations, affirming the right to equality and non-discrimination for
LGBTQIA+ individuals. This decision laid the foundation for further recognition
of the rights of transgender persons and same-sex couples in India.
• Supriyo Chakraborty v. Union of India (2023):
Although this case dealt with the denial of marriage registration to a same-sex
couple, it underscored the need for legal recognition of non-heteronormative
relationships. The judgement highlighted the ongoing struggle for marriage
 equality and the necessity of recognizing the rights of transgender persons to
marry and form families.
o **Navtej Singh Johar v. Union of India (2018):** In this landmark case,
the Supreme Court of India decriminalized consensual same-sex
relations, affirming the right to equality and non-discrimination for
LGBTQIA+ individuals. This decision laid the foundation for further
recognition of the rights of transgender persons and same-sex couples in
India.

o **Supriyo Chakraborty v. Union of India (2023):** Although this case

dealt with the denial of marriage registration to a same-sex couple, it
underscored the need for legal recognition of non-heteronormative
relationships. The judgement highlighted the ongoing struggle for
marriage equality and the necessity of recognizing the rights of
transgender persons to marry and form families.

• **National Legal Services Authority (NALSA) v. Union of India (2014):** This

pivotal case recognized transgender individuals as a "third gender" and affirmed
their fundamental rights under the Constitution of India. The Court directed
the government to treat transgender persons as socially and educationally
backward classes, entitled to reservations in educational institutions and public
employment.

• **Arun Kumar v. Inspector General of Registration (2019):** In this case, the

Madras High Court upheld the right of transgender persons to marry under the
Hindu Marriage Act, 1955. The Court ruled that the term "bride" under the Act
includes transgender women, thereby recognizing their right to marry as per
their self-identified gender.

o **Section 5: International Perspectives on Transgender Marriage and

Adoption**

o **United Nations Human Rights Council (UNHRC):** The UNHRC has

recognized the right of all individuals, regardless of gender identity or
sexual orientation, to marry and found a family. It has urged member
states to eliminate discrimination against LGBTQIA+ individuals in
marriage and family-related matters.
 o **European Court of Human Rights (ECHR):** The ECHR has
consistently upheld the rights of transgender persons, affirming that
states must ensure that transgender individuals can marry in their
affirmed gender and that they are afforded the same rights and
protections as cisgender individuals in family law matters.

o **International Covenant on Civil and Political Rights (ICCPR):** The

ICCPR, to which India is a signatory, mandates that all individuals have
the right to marry and found a family, without discrimination based on
sex, gender identity, or sexual orientation. This international obligation
necessitates the inclusion of transgender persons within the legal
framework of marriage and adoption.

o **Goodridge v. Department of Public Health (Massachusetts, USA,

2003):** The Massachusetts Supreme Judicial Court ruled that the
denial of marriage licenses to same-sex couples violated the
Massachusetts Constitution. This decision emphasized that civil
marriage is a vital social institution and that excluding same-sex couples
from it was unjust and unlawful.

• **Obergefell v. Hodges (USA, 2015):** The United States Supreme Court ruled
that the fundamental right to marry is guaranteed to same-sex couples by the
Fourteenth Amendment. This landmark decision underscored the importance of
marriage in safeguarding individual dignity and autonomy.

• **Christine Goodwin v. United Kingdom (2002):** The European Court of

Human Rights ruled that the United Kingdom had violated the rights of a
transgender woman by denying her the right to marry. The court emphasized
the importance of legal recognition of gender identity and the right to marry as
essential components of personal dignity and autonomy.

• AP, Garçon and Nicot v. France (2017):** The European Court of Human Rights
held that France's requirement that transgender individuals undergo
sterilization and other medical procedures to have their gender identity legally
recognized violated their right to respect for private life.
 These additional cases and international perspectives further strengthen the
argument for recognizing and protecting the rights of transgender individuals to
marry and adopt in India, aligning with global human rights standards and
constitutional principles of equality and dignity.

Section 5: International Perspectives on Transgender Marriage and Adoption

1. United Nations Human Rights Council (UNHRC):

The UNHRC has recognized the right of all individuals, regardless of gender
identity or sexual orientation, to marry and found a family. It has urged
member states to eliminate discrimination against LGBTQIA+ individuals in
marriage and family-related matters.
2. European Court of Human Rights (ECHR):
The ECHR has consistently upheld the rights of transgender persons, affirming
that states must ensure that transgender individuals can marry in their
affirmed gender and that they are afforded the same rights and protections as
cisgender individuals in family law matters.
3. International Covenant on Civil and Political Rights (ICCPR):
The ICCPR, to which India is a signatory, mandates that all individuals have the
right to marry and found a family, without discrimination based on sex, gender
identity, or sexual orientation. This international obligation necessitates the
inclusion of transgender persons within the legal framework of marriage and
adoption.

Section 6: National Policy and Legislative Recommendations

1. Comprehensive Anti-Discrimination Legislation:

The Parliament of India should enact comprehensive anti-discrimination
legislation that explicitly includes protection against discrimination based on
gender identity and sexual orientation, particularly in the areas of marriage and
family law.
2. Amendments to Personal Laws:
All personal laws, including the Hindu Marriage Act, the Special Marriage Act,
and the Adoption and Maintenance Act, should be amended to ensure they are
inclusive of transgender persons and same-sex couples. These amendments
should clarify that marriage and adoption rights are not limited by traditional
notions of gender and sexuality.
3. Public Awareness and Education Campaigns:
The Government of India should initiate public awareness and education
campaigns to promote understanding and acceptance of transgender persons
and their rights, particularly in the context of marriage and adoption.

Conclusion:
India is a developing nation, and to encourage that growth and development, the
country needs progressive laws that treat all residents equally and provide them with
the same opportunities to contribute significantly to the nation's future. One of the
harshest laws from the Victorian era has finally been repealed in India. However,
same-sex unions are still illegal. Marriage confers rights and obligations on two
people, including those related to adoption, inheritance, tax planning, life insurance
plans, and other similar privileges. In a nation like India where marriage is given such
high value, marriage is a fundamental right for every person, but the LGBT
community currently lacks this privilege. Decriminalizing homosexuality in a nation
like India where LGBTQ people are still unable to wed the partner of their choice
would seem to serve no purpose. Even though the Transgender Persons (Protection of
Rights) Bill was approved by the Lok Sabha on August 5th, 2019, it still has many
shortcomings and does little to benefit the LGBT population. Researchers aim to make
the case that the transgender bill needs to be strengthened and modified in a way that
benefits the LGBT community. Legalizing same-sex unions is urgently needed to
remove this dark chapter from Indian history. As long as people are ready to sweep
homosexuality under the rug of amnesia, it will continue to be stigmatised. The
government ought to make an effort to inform the populace and increase public
understanding of sexual minorities. For the LGBT population in India to live with
dignity, sexual autonomy, and individuality, the three pillars of the State and society
must work together to ensure that the morality and values derived from the
Constitution are upheld. However, despite all the advancements, LGBT people
continue to face discrimination in society. A Supreme Court decision can only issue a
resolution; nonetheless, it is the responsibility of society to ensure that LGBT people
are not subjected to discrimination and are treated with respect. Simply allowing
sexual activity between same-sex partners won't put them in danger on par with other
citizens because the future of same-sex marriage, the legality of same-sex adoption,
the right against oppression, and other issues are still up in the air, and the
community is still fighting for them. Therefore, it is evident that the struggle has not
yet been won, and India still has a long way to go before being truly inclusive