Written by Bhavya Gupta
The question of who belongs in a nation can be answered by looking at the freedom and rights granted to them in comparison to other communities. This sense of “belongingness” depends not just on a person or community’s legal rights, but also their political and social experiences. While rights tend to evolve over time, they are often restricted by the societal structures within which they exist — especially for marginalised communities who may pose a threat to the status quo. As the Supreme Court hears petitions from the LGBTQI+ community for the right to marry, the central government has insisted that marriage is something that can only happen between a “biological man” and a “biological woman”, and that any interference “would cause a complete havoc with the delicate balance of personal laws in the country and in accepted societal values”. This argument indicates the state’s — and society’s — understanding of marriage as an institution that is supposed to uphold the ideals of nation and gender, which would be at risk if the right to marry is granted to those from the queer community.
A nation is supposed to grant rights to all its citizens equally. So when the government denies a certain right to a community, while guaranteeing it to others, it takes away a sense of their belonging and in turn, their full experience of citizenship. This experience of citizenship is currently absent from the lives of queer and trans persons whose very bodies unsettle the commonly understood idea of gender. We do not fit within the majority culture of the nation. We are granted the right to love, the right to express, and the freedom of choice, but not the right to marriage. Our rights are reduced such that they do not threaten the social fabric of the nation.
In the conversation around same-sex marriage in India, however, the real question is whether the legal right to marry would also confer social and political acceptance. This may not be so simple. Take the case of the NALSA v Union of India judgment, 2014 which gave queer and trans people the right to self-identification. Social and political acceptance has not automatically followed. This acceptance is supposed to come through validation from other institutions, such as marriage.
A peculiar situation has thus been created where queer and trans people, while being recognised as legal citizens, are pushed to the social and political margins, thus changing their relationship to the nation and, consequently, their feeling of “belonging”. This notion of legal rights versus social and political acceptance plays out in other ways as well. For example, the Special Marriage Act, 1954 allows any two people, irrespective of faith or caste, to get married. But the violence and non-acceptance with which inter-caste and inter-faith marriages are met even today make it clear that legal rights do not guarantee social and political acceptance.
The institution of marriage, even in 2023, remains tied to the “traditional” structure of family, with its emphasis on procreation. In this understanding, the idea of queer or trans marriage is “unnatural”. Legal recognition for same-sex marriage is, therefore, not enough. For true equality and a sense of belonging for all citizens, we must do the work of aligning legal rights with social and political integration of queer and trans persons.
The writer is a researcher at the department of women and gender studies, Savitribai Phule Pune University
