Homosexuality and marriage - what are the options moving forward?

Skyler

Currently, it is possible to get "Female" on legal documents, thanks to Supreme Court's NALSA judgement.
Sources:
1. https://transgenderindia.com/how-to-apply-for-indian-passport-being-transgender/
2. https://transgenderindia.com/change-gender-marker-and-name/
3. https://en.wikipedia.org/wiki/National_Legal_Services_Authority_v._Union_of_India

However, it is also likely that if Transgender Persons (Protection of Rights) Bill, 2016 is approved in its current format, it will most likely be "Third Gender" or "Others" and not "Female".
Source: Section 5, 6, 7 and 8 of http://www.prsindia.org/uploads/media/Transgender/Transgender%20Persons%20Bill,%202016.pdf

As of today, since we can reasonably expect to get gender marker on legal documents changed to Female, let's consider that case and ignore the other future scenario.

Section 377 of the Indian Penal Code (https://indiankanoon.org/doc/1836974/) is still legal and the fact that Supreme Court overturned Delhi High Court's intent to decriminalize homosexuality in 2013 (http://www.reuters.com/article/us-india-rights-gay-idUSBRE9BA05620131211), I'm concerned.

Supreme Court has agreed to hear the issue again in 2016 (http://www.thehindu.com/news/national/Five-judge-Constitution-Bench-to-take-a-call-on-Section-377/article14056992.ece?homepage=true), but since that is still pending, let's not consider that for now.

What I'm interested in knowing is this.

1. a. If you're already married to a woman who approves of your transition from Male to Female, and wants to stay married to you even after your transition, should there be any expectation of getting your Marriage Certificate updated with the gender marker "Female"?

1. b. If it is possible and approved, would it cause issues with banks, hotels, landlords and so on?

2. Can you get married (if you haven't already) when both the people in the marriage are "Female"?

3. Can you get jailed/fined or harassed for even approaching for such a request, before/after marriage? (depending on point 1 or 2 above)

4. Can you seek asylum to other countries where same-sex marriage is legal? Which countries could be candidates for asylum?

Edit: Regarding point 1 and 2 above, Wikipedia says "Sexual activity between people of the same gender is illegal, and same-sex couples cannot legally marry or obtain a civil partnership." (https://en.wikipedia.org/wiki/LGBT_rights_in_India). But I'm wondering if the on-ground situation is exactly as its legal counterpart is.

orange

Skyler 4: Asylum based on homosexuality coming from India will be difficult in European countries. For most European countries India is on the list of 'safe countries'. They might consider exceptions for asylum, but only in case of persecution.

Skyler

orange 4: I can see why it is considered "safe." I have read up some material on that. I'm worried that after I approach for updating my Marriage Certificate or approach for a Homosexual Marriage... what if I'm legally pursued and arrested promptly, leaving me no way to figure out how to leave the country or get asylum anywhere else? Seeing as law and order in India is not strictly followed...

eva

Skyler Even I've faced similar questions regarding marriage and transition. From the advice I got from legal experts... Your status at the time of marriage will prevail. That is even after your legal transition to 'female' in all your other documents you'd still be considered 'husband' as per your marriage certificate for all purposes related to your marriage.
Same gender / same sex marriage is not allowed under Indian law. As for requesting a change in the marriage certificate... I guess no one has ever done it or had the guts to do it. Trans individuals on an average face more bias and hatred in their day to day life compared to other lgbq population in the country. Approaching the officials with such a request would be inviting legal trouble for both you and your partner. Yes jail/fine or harassment can happen. Even if you somehow managed to get it done your marriage will become invalid as per current Indian law.
If you're concerned about your assets or inheritance you can simply make a separate legal contract for that.
As is often the case, most marriages in India and places elsewhere where one partner is trans and other cis often end up in divorce. Very few stay.
Please don't marry any cis woman without first disclosing to her that you're trans and planning to transition. Even if she does agree with it still it'd be good to have it on paper notarized for your own safety in case of a divorce.
In case you are still planning to marry a cis woman, I'd recommend only do it if you think the relationship is going to work long term or just stay away from marriage as most laws would be in her favor in case of a divorce and even if you'd have transitioned still the case would be biased.

swapna

Skyler I've done a ton of research on Asylum, seems like most EU countries will make it hard for you, and also, you'll need a strong proof that you're in trouble for example you must be having some prosecution or something but even if you do, it'll be hard for you to escape India before the police catch you. There's a few things that can be done though, for example there are a few organizations that will get you out of India if you have certain legal documents like a proof that you're harrassed (can be a picture, or a msg) and you also need some valid medical documents and passport to verify yourself. You'll also need documents from an LGBT organization from India... supporting your claims... so It's quite hard. What I'm thinking is that Indians never really change, especially which a govt that's ruled by people who are quite bad (around 20-30% of MPs have rape, murder and other serious criminal charges!) . I'm willing to pursue my goals and I don't want to be stuck here with these useless courts that make matters so bad. I am willing to go outside of India, some place like Newzealand, Brazil or Jamaica are good places to get VISA but you gotta try hard. I don't know if I helped but that's that.

Skyler

eva Actually, I'm already dating a cis woman and she knew of my "doubts" before we started dating. We've talked extensively about this, and continue to, and we both want to stay together.

cc23

Hi Skyler,

Thanks for asking this question.
I am already in this exact situation.
Got married to a cis woman, was still troubled by my gender issues and came out to myself after a few years of marriage, and then to her. We've decided to stay together and take it one step at a time.
I am transitioning slowly but now at a point where I may have to come out to everyone soon.
We love each other very much but are also very scared about our future.

I have approached an experienced lesbian activist who has asked a prominent women's rights lawyer on my behalf about what are our options if we want to remain married and continue to live in India. We are yet to hear from the lawyer.

My understanding is that as adults, no one can stop you from living with whoever you want. There are so many same-sex couples who already live together freely. Of course, it helps to have the education, resources, contacts etc to protect yourself if required.
Whether a case like ours will continue to be legally considered a marriage... I don't know. Precedents in other countries have gone both ways - forcing marriages to be annulled, as well as continuing to recognize them based on what was true at the time of the marriage. Now of course, with marriage equality in most western countries, it doesn't matter as much.

If you are already in the same boat as mine, let me know and we could probably coordinate on the legal issues. PM me if you like. If you are not yet in the same situation but considering it, please be cautious and follow the advice given by others earlier here.

Thanks

CC

Skyler

cc23 I am not already married, but I have been dating someone for a few years and we plan to get married soon. Hence, I'm trying to consider all the aspects and trying to decide what kind of life to expect.

You are right... people do tend to live together, but the legal status is still an issue. What do you do when a home loan is denied because you're not a "family"? Or you can't enter a rent agreement because you're two women? What do you when you get harassed but want to approach the police and can't? Those are difficult questions...
If you're rich and have contacts, then it works out for you, but if you're not, then it's difficult to manage those situation.

Nonetheless, please do post here when you hear back from the experienced lesbian activist. ?

Sunny

swapna its not that bad also, I am post op & i am living here in India. & i have to admit i have a decent lifestyle, I am in stealth though.

Skyler

swapna That is helpful, thank you. Even I have extensively researched one or two countries and it matches what you said. Unless you have a proof of history of discrimination, harassment, or even legal cases, police brutality, it is nearly impossible to get asylum. I even read a story of a gay man who was sent back to India because he could not produce enough evidence of torture.

Skyler

Sunny That's good to hear! ?

My concern is not with living in India... it's marriage. Are you married to a woman? or planning to? That is a big reason why I want to move elsewhere. I want my marriage to be legally recognized and to get all the benefits as any heterosexual couple would get.

Sunny

Skyler I found this on Wikipedia , may be it will help you.

Same-sex marriages are not legally recognised in India, nor are same-sex couples offered more limited rights such as a civil union or a domestic partnership. In 2011, the court granted legal recognition to a single same-sex marriage, involving two women.[22] After marrying, the couple began to receive threats from friends and relatives in their village.

Their lawyer said the court had served notice on 14 of Veena's relatives and villagers who had threatened them with "dire consequences". Haryana has been the centre of widespread protests by villagers who believe their village councils, or khaps should be allowed to impose their own punishments on those who disobey their rulings or break local traditions – mainly honour killings of those who marry within their own gotra or sub-caste, regarded in the state as akin to incest. Deputy Commissioner of Police Dr. Abhe Singh told The Daily Telegraph: "The couple has been shifted to a safe house and we have provided adequate security to them on the court orders. The security is provided on the basis of threat perception and in this case the couple feared that their families might be against the relationship."[23]

The couple eventually won family approval.[24]

Reference : https://en.wikipedia.org/wiki/LGBT_rights_in_India#Recognition_of_same-sex_relationships

eva

Skyler I must say that you're lucky that the cis woman you're dating is okay with you transitioning. Most cis women are not even okay with crossdressers.

swapna

Skyler Although some are helping me out in the right direction :3 I still need to work out hard.

Maggi

swapna what direction & what kind of help ?

swapna

Maggi getting a job etc but it'll be hard to get a job without education though Im sure there must be someone who'll hire me.

Maggi

swapna I am sure by the time u start looking for job.. there will be some transfrndly companies... Look for Bigger companies that have good HR policies. but be strong, u may have to face some discrimination from ur colleagues

iamcapricious

swapna looking at your texts you dont looklike a person who did not get education hehe! You will certainly get a job dear, look for jobs on PrideCircle, Lalit Hotels and Periferry.

JohnDoe

Hi. I am in a similar situation. I got married (heartedly and being advised by people that my trans feelings will go away), and my marriage has failed miserably. Me and my wife are currently separated but not yet legally divorced.
-My question is that will it be possible for me to begin transition? Or will there be any legal complications?
-Do I need to inform my wife before I even begin HRT? Is her permission needed?

Thanks.

iamcapricious

JohnDoe Well that is not really required. You are 18+ and you are free to make your own decisions, but just keep in mind that sometimes women accuse their partner and file the case of 498A, without any reason, I saw the documentary called 'Martys of Marriage' directed by Deepika Bhardwaj and I also know a trans woman who had to pay chunkload of money to get rid of her wife. You better file for divorce as soon as possible, if you feel that your wife would not accept you and may even go against you. Although you can begin your transitioning.

JohnDoe

iamcapricious Thanks a lot!!