TRANSGENDER MARRIAGE AND DIVORCE LAWS IN ASIA

The Author is Yukta Dubey  is a 4th year law student from Symbios Law School Hyderabad. She hails from Varanasi, U. P.  Apart from law she has fervent passion for sports. She can play various sports and excel in Table Tennis. She likes to reason out things and then make her own head about things whether they are right or wrong. She strongly believe in experienced learning.

Transgender have a distinct identity and depriving them of that identity is not only infringing their human rights but also their right to live in dignity is taken away. Equality that is enjoyed by all will be taken from them if they are not recognized, if they do not have a legal gender recognition. Gender recognition and their expression of transgender is one of the most basic facet of life that the transgender need in order to live their life with dignity and freedom.
Legal recognition of gender not only leads a life full of dignity and independence but it is also crucial in their protection legally and that they enjoy all their rights of being a transgender. So that equality and justice can be served.
Legal gender recognition is a ray of light for the transgender as it would lead them to have full access and can enjoy the human rights of the transgender and live equally and with dignity. They would not have to hide their identity or live on some different gender identity.
Legal gender recognition highly depends on the countries laws and procedures, its regulations and policies that give the transgender their gender identity and gender expression, that leads to giving them a respectful life and protection in all the ways possible. One common trait that Asia has for non recognition of transgender is the lack of regulation. Which may be because of a lot of reason, like the citizens in the country are not ready to accept it, or the government is still not clear with whether to bring it or not, the pros and cons of such regulation or the vagueness in the regulation.“The vast majority of transgender people in the region do not have access to legal gender recognition, either because no such provisions exist in their country or due to practical limitations in how court judgments or parliamentary decisions have been implemented”[1]

The new policies and regulation by different countries for the transgender should keep the transgender and other gender people on the same plane and make laws. It should depict good practice of the law for the protection of the transgender, the laws are accessible to the transgender and supports them and treat them equally and include them in the society legally by giving them a separate recognition as transgender. The transgender would have remedies that if their rights are violated they can get justice through the laws.
The non legal recognition of the transgender and discrimination is more worse when they are asked to use an identity that is not real, that is not according to their gender, that does not match what they are what gender or expression they are.
Legal recognition of a transgender is important for the marriage and divorce laws are a nation. By most of the nations the usual meaning of marriage is a relationship between the opposite genders, or a relation between a man and a woman. And no Asian countries recognize same sex marriage or its has a civil unison or civil partnership.
Legal recognition of transgender has a deep connection between their personal rights like their marriage and divorce laws. A transgender can marry who legally.
“In China, married people are barred from changing their gender marker, because this would create a same-sex marriage. However, if unmarried people have gender-affirming surgeries and amend their gender markers, they are recognized as that gender for the purpose of marriage. So, a transgender woman who has a female gender marker can marry a man, and a transgender man with a male gender marker can marry a woman. Those marriages cannot be challenged on the basis on the person’s gender identity.”[2]
“The narrow definition of marriage in laws is reinforced by some Supreme Court decisions in the region. The 2007 Philippines Supreme Court decision, Silverio v Republic of the Philippines, ruled against a transgender woman being able to change her first name and gender marker on her birth certificate, even after gender affirming surgeries.238 The Court viewed the transgender woman as male, based on her sex assigned at birth. Therefore, it argued that allowing this transgender woman to change her name and gender marker, in order to marry her male fiancĂ©, would alter established laws on marriage and family relations.”[3]
The Thai Government in 2013 with the civil society drafted a bill for same sex couples. It was a bill for the civil partnership of same sex couples. But because the term ‘same-sex’ did not include the transgender the progress towards them stopped. The bill failed to address few of the basic issues of eligibility to be adoptive parents. Now they are working towards drafting a new bill, the Law Reform Commission of Thailand and the civil society that is gender neutral civil partnership bill.”[4]
In India, the NALSA judgment specifically noted the “binary notions of gender ... in the laws related to marriage, adoption, divorce, inheritance, succession and other welfare legislations”. It concluded that non recognition of hijras’ identity in various laws “denied them equal protection of law and they face wide-spread discrimination”.[5]The government gave six months for implementing the directions for the same, no order has been passed in this regard. “It remains an aspirational legal principle which has yet to be grounded in the legislative framework.”[6]
In Nepal landmarks case for the transgender in the year 2007 Sunil Babu Pant and Others v Nepal Government and Others.  The case was about the sexual and gender minorities. And it recommended actions on same sex marriage and recognition of third gender identities. Nepal’s Same Sex Marriage Committee was established and submitted its report on mare sex marriage to Prime Minister and Council of Ministers (OPMC) in 2014. “The report of the Committee identified different Chapters of the Civil Code 1963 for amendment”.[7] “It recommended legalization based on the right to equality, clarifying that marriage laws should apply equally, irrespective of a person’s gender identity, including when a gender marker has been amended.”[8] “In December 2016, the Nepal’s Immigration Office issued a dependent’s visa to a Nepalese lesbian and her female partner who were married in California. This is the first decision officially recognizing a same-sex relationship. Subsequently civil society has demanded that this decision should be reflected in an equal marriage law that applies for all LGBTI people.”[9]
“Hong Kong Court of Final Appeal’s May 2013 decision in W v The Registrar of Marriages allowed a trans woman, who had undergone gender affirming surgery, to marry her boyfriend.”[10] “This decision reversed earlier rulings over the preceding five years. Subsequently the Hong Kong government introduced the Marriage Amendment Bill (MAB) 2014 to explicitly limit legal gender recognition, for the purpose of marriage, to trans people who had undergone sterilization and genital reconstruction. In October 2014, the Legislative Council of Hong Kong rejected this proposal.”[11]
“Taiwan, a marriage is only legally binding if one partner is a man and the other is a woman. In August 2013, the Taiwan Ministry of Interior overturned an earlier decision to annul the marriage of two Trans women. The women married in 2012 when only one of them had amended her gender marker to female on her national identity card. The marriage was registered but then invalidated after officials discovered the second Trans women had subsequently changed her gender marker to female. After a lengthy public hearing and a closed-door meeting, the Ministry of Interior agreed to reinstate the couple’s marital status. This decision was based on a 1994 ruling in which the Ministry of Justice said a change of gender during a legally recognized marriage does not affect that person’s marital standing or relationship with their children. The marriage was valid because the two women were legally recognized as belonging to opposite genders at the time their marriage was registered.”[12]
Thailand is a country where one cannot change the sex details on any record, whether it be the birth registration or anything. This privilege is only available to the intersex people who have gone for genital surgery. And that surgery was performed without their permission mostly in the cases of intersex infants.[13]
Akrotiri and Dhekelia same sex marriage in the country has been legal since 2014. “Same-sex sexual activity was legalised in Akrotiri and Dhekelia in 2000, under the Criminal Code (Amendment) Ordinance 2000. In 2003, the age of consent was equalised for same-sex sexual activities”.[14] The country has a very unique and ambiguous law, it issues certificate of birth and death to all its citizens but it only issues certificate of marriage to its military personnel and their dependent.
“Everyone has the right to recognition everywhere as a person before the law… No status, such as marriage or parenthood, may be invoked as such to prevent the legal recognition of a person’s gender identity.”[15]
A transgender marriage and divorce laws should have same legal protection like any other marriage and divorce laws. It should be the discretion of the person if they want to marry or end the marriage. It would be totally inappropriate and highly insensitive to dissolve any marriage that has remained strong after one partner has transitioned himself/herself. The State should have no right to force them for a divorce.


[1] UNDP & APTN (2017). Legal Gender Recognition: A Multi-Country Legal and Policy Review in Asia.
[2] UNDP (forthcoming). Legal Gender Recognition in China: A Legal and Policy Review.
[3] Silverio v. Republic of the Philippines (2007), G.R. No. 174689.
[4] UNDP & USAID (2014c). Being LGBT in Asia: Thailand Country Report, Bangkok, pp. 23–24
[5] NALSA v. Union of India, 3 (2014) 5 S.C.C. 438, para 75, 112. The specific term used in this part of the judgment was Hijras/ Transgenders.
[6] UNDP (forthcoming). Legal Gender Recognition in India: A Legal and Policy Review
[7] These included the Chapters on Marriage, Divorce and Adoption and amendments to eighteen laws including the Marriage Registration Act (Nepal), 2028 BS (1971) and the Birth, Death and Other Personal Incident (Registration) Act (Nepal) 2033 BS (1976).
[8] Nepal’s Same Sex Marriage Study Committee (2014), Same Sex Marriage Study Report, Nepal.
[9] Information supplied by Blue Diamond Society in February 2017. At that time, the Committee had met once.
  Email correspondence from Manisha Dhakal, Executive Director of Blue Diamond Society, 30 December 2016.
[10] W v The Registrar of Marriages [2013] HK Ct of Final Appeal (13/05/2013, FACV4/2012
[11] Cheung, T. and Siu, P. (2014) ‘Transgender marriage law vetoed by Legco’ in South China Morning Post, 23 October 2014. Accessed 15 April 2015 at: http://www.scmp.com/news/hong-kong/ article/1622339/legco-vetoestransgender-marriage-law-minister-accused-not-lobbying
[12] Hsu, J. T. (2013) ‘Taiwan reinstates transgender couple’s marriage’ in The Wall Street Journal: China, 9 August 2013. Accessed 20 February 2015 at: http://blogs.wsj.com/chinarealtime/2013/08/09/taiwan-reinstatestransgender-couples-marriage/
[13] UNDP, USAID (2014) Being LGBT in Asia: The Thailand Country Report. Similarly, in the Philippines, a 2007 Supreme Court decision ruled that there is no legal ability for trans people to amend their first name or sex on a birth certificate on the ground of sex reassignment (Rommel Jacinto Dantes Silverio vs. Republic of the Philippines, Supreme Court of the Philippines, First Division, G.R. No. 174689, 22 October 2007). The impact of allowing such an amendment, including that it would enable a trans woman to marry her male partner, was emphasised in the judgement. In contrast, a 2008 Supreme Court decision found that where the individual was biologically or naturally intersex, it was reasonable to allow the person to determine his or her own gender (Republic of the Philippines vs. Jennifer Cagandahan, Supreme Court of the Philippines, Second Division, 12 September 2008). This man was able to amend his name and sex details on his birth certificate and subsequently married his female partner
[15] International Commission of Jurists (2007) Yogyakarta Principles – Principles on the application of international human rights law in relation to sexual orientation and gender identity, pp.11-12

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