Opinion On same-sex marriage: Some of us don’t want to marry

The report combined legal research with community conversations and identified healthcare, maintenance, social security, property rights, housing, and partner benefits in labour laws as vital social and economic rights that the LGBTQI community is denied. It formed the basis of intense discussions on queer issues at multi-lingual national and regional meetings in 2022. They, in turn, have contributed to the filing of the Borah petition that will be heard among the marriage equality petitions being argued at the Supreme Court. Building on the community voice in the petition, the Borah petitioners also convened an extraordinary jan sunwai (people’s hearing) recently, bringing together participants from across the country — small towns and big — with testimonials from 19-year-olds to 61-year-olds. Poignantly titled, ‘Apnon Ka Bahut Lagta Hai’ (Our Own Hurt Us the Most), the report of the jan sunwai seeks to centre family violence in the lives of queer and trans persons in the marriage equality debates. It highlights the range of physical, mental and emotional abuse, including banishment and abandonment and the participation of institutions like the police, mental institutions and practitioners in the violence and trauma of the natal family.

The community discussions around the research, the Borah petitioners and the heart-breaking testimonials from the jan sunwai lay waste to the government’s claims of urban elitism. These are very real lives, being lived with courage across the nation.

The question of privilege is one that is hotly debated within the LGBTQI community. Indeed many of us critiqued the narrative of “accomplishment” being used as the context for the demand for decriminalisation that accompanied the last leg of the journey of the Section 377 litigation at the Supreme Court. There were traces of it in the early gay marriage petitions filed in the court last year — to make gay people palatable to the courtroom, but not caring to represent the more routine, quotidian queer experience. This narrative of “respectability” has tried to use social privilege to appeal to the sensibilities of the court, ever since 2016 when the Navtej Johar petition was filed. That petition and the way it was contrived represented certain interests. It was the antithesis of how the queer community handled the decriminalisation case since 2001 when Section 377 was first robustly challenged — as a case that spoke of the marginalised among us, amplified their realities, and stayed away from the use of elitism to have our way in the courtroom, especially given India’s deeply class-riven society.

If robust conversations had been engendered in the queer community — like they had been to create the strong foundation for the 377 litigation — we would be presenting a much more nuanced way of affirming queer relationships from the outset. Fortunately, the Borah petition speaks to this splendidly. Hopefully, the court will give it enough time.

A glimpse into what is being argued with this more nuanced perspective will reveal that natal families are a site of tremendous violence for far too many queer people. And, that while the ability to marry someone of one’s own choice should be permitted under the Special Marriage Act, the right to a “chosen family” should also be recognised. This latter right to “atypical” families would allow queer people to redefine what kinship means, and to do so outside the established framework of blood-related ties. Such kinship is often established by queer people through mutual empathy, love and care, sometimes within romantic relationships and other times through intimate friendships. It is these ties that are created in the face of the greatest odds that need to be recognised by the law as essential to ensuring the dignity of all queer persons. Such a recognition has the potential to endow queer people with various socioeconomic rights, irrespective of marriage.

While it is not before the courts, another point needs to be articulated: Not all queer people are particularly desirous of marriage equality. Many would be quite satisfied if we were protected through the redefining of legal kinships, and the concomitant rights that would emerge. Indeed, our relationships being recognised as civil partnerships would be suitable. Yet, the filing of marriage equality petitions before the Supreme Court boxes us into the heteronormative marriage framework. What that would do for the overwhelmingly larger queer realities that are atypical, non-elitist and most marginal is hard to understate — it would leave out those most in need of protection by the law, while catering to those who have social privilege.

The apex court has an opportunity to frame a ruling that is the most inclusive in catering to queer realities in all their vulnerabilities. One hopes that it speaks to and with all of us that form the grand multitude.

The writer is Head, Centre for Health Equity, Law & Policy