Why Bobby Darling’s upcoming wedding raises some legal questions on LGBT rights

News that actor Bobby Darling is set to get hitched may have little relevance beyond the gossip columns, but there is an interesting legal point raised by her prospective wedding to a Bhopal-based businessman.

Bobby Darling was assigned male at birth but has presented herself as female since her youth. According to the 2014 Supreme Court judgement on the rights of the transgender community, also called the NALSA judgement, the gender identity of a person is not dependent on whether or not they have undergone a sex change operation, called a Sex Reassignment Surgery (SRS).

This means that a person who identifies as trans cannot be denied rights on the basis of his pre- or post-op status. (Pre-op and post-op statuses refer to the bottom surgery that trans people may undergo to align their sex organs with their gender identity.)

Until the NALSA judgement, there was little clarity on what legally constitutes gender identity in India. The transgender umbrella is vast but has often been understood to mean only “hijras” (castrated males). However, from the intersex to the kothis (men who show feminine traits), the transgender cover a spectrum whose legal rights have long been tied down to their genitals (and not just in India).

While delivering the NALSA judgement, the Supreme Court referred to the UK’s Corbett vs Corbett (1969). That was one of the first cases globally to establish criteria for determining the gender identity of a trans person, basing it on physical attributes. This is now widely discredited and the Supreme Court cited cases from other jurisdictions that give primacy to the psychology of the trans person in determining their gender identity.

Here are two examples that the Supreme Court cited:

“The House of Lords in Bellinger v. Bellinger (2003) was dealing with the question of a transsexual. In that case, Mrs. Bellinger was born on 7th September, 1946. At birth, she was correctly classified and registered as male. However, she felt more inclined to be a female. Despite her inclinations, and under some pressure, in 1967 she married a woman and at that time she was 21 years old. Marriage broke down and parties separated in 1971 and got divorce in the year 1975. Mrs. Bellinger dressed and lived like a woman and when she married Mr. Bellinger, he was fully aware of her background and throughout had been supportive to her. Mr. and Mrs. Bellinger since marriage lived happily as husband and wife and presented themselves in that fashion to the outside world. Mrs. Bellinger’s primary claim was for a declaration under Section 55 of the Family Law Act, 1986 that her marriage to Mr. Bellinger in 1981 was ‘at its inception valid marriage’. The House of Lords rejected the claim and dismissed the appeal. Certainly, the ‘psychological factor’ has not been given much prominence in determination of the claim of Mrs. Bellinger.”

“The High Court of Kuala Lumpur in Re JG, JG v. Pengarah Jabatan Pendaftaran Negara (2006) was considering the question as to whether an application to amend or correct gender status stated in National Registration Identity Card could be allowed after a person has undergone SRS. It was a case where the plaintiff was born as a male, but felt more inclined to be a woman. In 1996, at Hospital Siroros, she underwent a gender reassignment and got the surgery done for changing the sex from male to female and then she lived like a woman. She applied to authorities to change her name and also for a declaration of her gender as female, but her request was not favourably considered, but still treated as a male. She sought a declaration from the Court that she be declared as a female and that the Registration Department be directed to change the last digit of her identity card to a digit that reflects a female gender.

The Malaysian Court basically applied the principle laid down in Corbett…, however, both the prayers sought for were granted, after noticing that the medical men have spoken that the plaintiff is a female and they have considered the sex change of the plaintiff as well as her ‘psychological aspect’. The Court noticed that she feels like a woman, lives like one, behaves as one, has her physical body attuned to one, and most important of all, her ‘psychological thinking’ is that of a woman.”

The NALSA judgment, thus, creates a situation where a trans person can change their sex legally without undergoing SRS. Since marriage in India is legally allowed only between persons of opposite sexes, such a trans individual can then marry a person of the opposite sex. However, if the trans person is pre-op, the union goes against Section 377, which criminalises sexual acts against the order of nature.

Furthermore, this dichotomy engenders a regrettable focus on the genitals of a trans person, the precise reason why trans rights have thus far been stuck in a limbo. The question in Bobby Darling’s case is not whether she has undergone SRS. Since she identifies as female, the law must, and does after NALSA, recognise her as female. The issue is that her gender identity is recognised under NALSA, her sexual choices are limited by Section 377 that criminalises peno-anal intercourse.

Thus, it is seen that a piecemeal approach taken by the judiciary on the issue of LGBT rights has led to a situation where one group is pitted against the other, leading to grievous harm to the rights of both groups. Since the reinstatement of Section 377 by the Supreme Court in 2013, the gay community has rigorously fought for its scrapping. But the Supreme Court’s own pro-trans judgement of 2014 has gaps left open by its 2013 order on Section 377 that need to be plugged.

Bobby Darling’s upcoming wedding may not have meant much otherwise, but if her specific case can reopen the thorny issues around the legal standing of sexual minorities, perhaps it would have done some lasting good after all.