Same Sex Marriage Hearing | Gender Not A Concept Of What Your Genitals Are, It Is Far More Complex: CJI DY Chandrachud Orally Remarks In Marriage Equality Case

The Supreme Court, while hearing the batch of petitions seeking legal recognition for same-sex marriage in India, orally discussed the ambit of gender and whether it expanded beyond the biological sex of a person.

The discussion before the bench comprising CJI DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli, and Justice PS Narasimha began upon Dr AM Singhvi's submission that if the court was to grant marriage equality in India, it should not grant the right of "same sex person marriage" and instead grant the right of marriage to "two consenting adults along bodily gender and sex spectrum".

Dr Singhvi, appearing for one of the petitioners, argued–

"There is a whole range of combination of persons with special biological features. It's not only man and woman. One category is "sex" and the second category is "gender". So a male body can be imbued by female psychological instincts and vice versa. There is LGBTQIA++. This "++" has a whole spectrum of hues and colours. Now if your lordships were to hold same person marriage, your lordships should not mean to limit it to same sex. So the correct formulation should be "two consenting adults along bodily gender and sex spectrum."

Contrary to the arguments raised by Dr Singhvi, the contentions of the Solicitor General of India, appearing for the Central Government argued that biological gender was the gender of a person. SG Mehta, while discussing the rights guaranteed to the transgender persons, said–

"Acceptance of societal relationships is never dependent on judgements of legislations. It comes only from within. My submission is that even Special Marriage Act- the legislative intent throughout has been relationship between a biological male and a biological female."

CJI DY Chandrachud was quick to interrupt the SG and orally remark–

"The very notion of a biological man is absolute which is inherent."

However, SG Mehta disagreed and said–

"Biological man means biological man, there is no notion."

To this, CJI DY Chandrachud said–

"There is no absolute concept of a man or an absolute concept of a woman at all. It's not the question of what your genitals are. It's far more complex, that's the point. So even when Special Marriage Act says man and woman, the very notion of a man and a woman is not an absolute based on genitals."

Rebutting the CJI's remark, SG Mehta reiterated his point and said–

"Biological man means man with biological genitals. I didn't want to use that phrase. If the notion is treated to be a guiding factor to decide a man or a woman, I'll show several acts which your lordships would unintentionally make non workable. If I have genitals of a man but otherwise am a woman, as being suggested, how will I be treated under CrPC? As a woman? Can I be called for 160 statement? There are several issues. This would be better if gone into by the parliament. The parliament has eminent parliamentarians. Parliamentary committees are not acting in the way we see parliament function. Committees have all parties as members."

Senior Advocate Kapil Sibal who was appearing for Jamiat-Ulema-i-Hind, putting his personal opinion before the court argued on a similar line as the SG. While stating at the outset that he supported equal rights for the queer community, he said–

"We believe in the autonomy of individuals. I think people are entitled to have a relationship of whatever kind. That needs to be celebrated as that's where society is headed. Having said that, assuming your lordships were to say it's a valid marriage, suppose the marriage breaks down and they've adopted a child. What's going to happen? Who will be the father? Under Criminal Procedural law, who is the woman? Who will get maintenance? These are serious societal consequences of that declaration. Either you take it as a hold, or don't take it at all. When this is done across the world, other legislatures actually reform other laws in tandem with it. If you do it without reforms, you'll be hurting the other community and that is dangerous. I'm all for it but not in this fashion."

On the other hand, Senior Advocate Mukul Rohatgi, while citing various judgements said–

"Both gender and biological attributes contribute distinct components of sex...'The expression sex is not limited to biological sex of male or female but intended to include people who consider themselves neither'- this found its way into Anuj Garg...Recognition of one's gender identity lies at the heart of the fundamental right to dignity."