New Delhi: The Supreme Court on Tuesday discussed the scope of gender and whether it extends beyond the biological sex of a person, saying the concept of a man and a woman is not ‘absolute based on genitals’. In a day-long hearing on petitions seeking legal recognition for same-sex marriages, a five-judge Constitution bench headed by Chief Justice DY Chandrachud took note of submissions in favor of the petitions and against the petitions, and One of the reasons was that the Special Marriage Act contains words like ‘one man and one woman’ and hence using the word ‘person’ may unsettle the existing laws.
Senior advocate AM Singhvi, appearing for one of the petitioners, said same-sex marriage is a narrow term and if the court grants marriage equality to same-sex couples, it should be for consenting adults across “physiological gender and sex spectrum”. . “There is a whole range of combinations of individuals with particular biological characteristics. It is not just male and female. One category is ‘gender’ and the other category is ‘gender’ … So a male body can be assumed by a female psychologist Is.” Instinct and vice versa and is LGBTQIA++ (Lesbian, Gay, Bisexual, Transgender, Queer, Questioning, Intersex, Pansexual, Two-Spirit, Asexual and Allies). This ‘++’ has a full spectrum of colors and shades. Said. Solicitor General Tushar Mehta, appearing for the Centre, countered Singhvi by saying that ‘biological sex was the sex of a person’.
On the issue of using the word ‘person’ in place of ‘one man and one woman’ in the Special Marriage Act, the law officer said that the legislative intent has been solely to have a relationship between a biological man and a biological woman. The bench intervened and said, “The very concept of biological man is absolute…”
The law officer said “biological man means biological man, there is no such presumption.” “There is no absolute concept of male or absolute concept of female at all. It is not a question of what your genitals are. It is far more complicated, that is the point. So, even when the Special Marriage Act says male and female, The notion of a man and a woman is not absolute based on the genitals,” said the bench, also comprising Justices SK Kaul, SR Bhat, Hima Kohli and PS Narasimha.
There is a very important value judgment that you (law officers) are making whether the presumption of biological male is absolute or the presumption of biological female is also absolute, which is wrong, the bench said. The law officer said, “Biological male means you have genitals. I didn’t want to use that expression.”
He said, irrespective of characteristics other than genitals, separate marriageable age limits were set for men and women. Mehta said there are many laws that the court would inadvertently make redundant if it chose to legalize same-sex marriage. The law officer cited the example of the Code of Criminal Procedure (CrPC) and said that a woman cannot be called for examination after a certain time and there can be a situation where a man says that though he has male genitals , He is not a man. A Man.
“I may have the genitals of a man, but I am otherwise a woman, as is possibly suggested, then how will I be treated under the Code of Criminal Procedure. As a woman, am I to be treated as a special After section 160 CrPC the statement can be called for.” hours and can say that this is only an assumption. I may have had the biological genitalia of a man, now I am a woman…. There are many issues to be considered. It is better that they go through Parliament,” the law officer said. “There is always change in society and it starts from somewhere,” the bench told Mehta.