Same-sex marriage hearing Updates: 'Cisgender not transgender', SG corrected

The bench has risen for the day. The arguments will resume on Wednesday, May 3, 2023.

SG Mehta: There is no treaty obligation argument permissible. Please see judgement on this.

SG Mehta: Judicial pronouncements of other countries cannot be relied upon because cultural social ethos, jurisprudence is different of all nations.

SG Mehta: Let's see what the view of our court is. Please see. Article 19- Freedom of love, expression, doesn't mean institutionally recognised form. A friendship is an expression.

SG Mehta: This movement started 20-30 years ago. We don't have any data. The first or second generation is here. So what is the effect on children, very few may have adopted - there is no reliable data.

SG Mehta reads a judgment on whether courts can adjudicate upon the issue or it should be left to the legislature.

SG Mehta: Persons in L or G category of LGBTQ, they're not stigmatised or getting problems.

CJI DY Chandrachud: They're very badly stigmatised. In fact the parliamentary debate on the 1954 Act shows that there was a considerable degree of stigma attached.

SG Mehta refers to provisions of the Transgender Act.

Justice Kaul: If really the concerns of the gay and lesbian community had to be addressed, possibly a legislation specific to that and that has come for transgenders would have addressed issue

CJI DY Chandrachud: Cis gender is a gender you're born with. Now, there may be some variations but as a principle- lesbians belong to the cis gender category because there is no reassignment or assuming a different gender later.

SG Mehta (reads definition of gender queer): Anything outside male female or having a different feeling of what is assigned - that's what I've read. I may be right or wrong.

CJI DY Chandrachud: You may be correct in saying that the definition of transgender persons covers the entire spectrum but gays and lesbians are completely different.

Sr Adv Saurabh Kirpal: This is not correct Mr Solicitor. A cis gender person cannot be a transgender person.

CJI DY Chandrachud: But, Mr Solicitor, everyone who is an L or a G- lesbians and gays- they're not transgenders.

SG Mehta: They would be gender queer.

CJI DY Chandrachud: No, no.

SG Mehta: Every other spectrum is included. Gender queer and persons with intersex variations include all categories.

SG Mehta: It includes persons with trans man, trans woman, persons with intersex variations, gender queer, persons having socio-cultural identity such as kinnar, Hijras etc

SG Mehta: If I show your lordships broadly the scheme of this act- first, transgenders (persons) the way in which we understand in colloquial parlance which is equivalent to eunuchs. That's not the way it's defined. See the act,it covers all spectrums & shades.

SG Mehta: So marriage also in heterosexual couples ideally shouldn't have been regulated. But society felt that you can't permit people to marry at any age, many times etc

SG Mehta: State should be very slow in recognising a relationship because state is entering an arena of socio-personal relationship. It can recognise only when legitimate state interest recognises that regulation is necessary.

SG Mehta: Petitioner wants a new class to be created for a new object. That was never conceived. There is no positive obligation on state to recognise all personal relationships.

SG Mehta: SMA is only for heterosexuals. That's what the language and the debates also show.

SG Mehta: Continuing my argument, on Article 14 I say that it applies when government has made mechanisms for different classes though they're same- that is not the case here.

SG Mehta: Whatever administrately can be done can be seen. My stand on this will not be adversarial.

CJI DY Chandrachud: We will meet on Wednesday so you have that time to come back to us on this.

SG Mehta: I make it clear that i will assist the court qua, so far as possible and legally permissible, removal of the barriers without any legal or statutory recognition.

SG Mehta: That can continue. There is no prohibition.

Justice Kaul: Live in relationship was also in that category. Some obligations follow. Similarly, problems are bound to arise here. So bank accounts, adoption- is an aspect where i thought govt maybe have thought about it

SG Mehta: Yes yes. Your lordships decriminalisation would not be understood as a recognition of any status.

Justice Kaul: It recognised the existence of the relationship, of the situation - it said it's no longer criminalised