TRANSGENDER MARRIAGE AND DIVORCE LAWS IN ASIA
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 fiancé, 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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