Author: Anupama Mathew, Symbiosis Law School, Nagpur
The Lesbian, Gay, Bisexual, Trans and Queer (LGBTQ) community still faces pervasive stigma, exclusion, and discrimination throughout the world. Many LGBTQ people experience targeted physical attacks and extreme violence, including being beaten, sexually assaulted, tortured, and killed. Many nations have discriminatory laws that criminalise consenting same-sex relationships and trans individuals, subjecting LGBT people to imprisonment, blackmail, extortion, shame etc. In most countries, trans persons have no access to legal acknowledgment of their gender identification or suffer oppressive procedures to seek such recognition. Intersex children and adults may be compelled or pressured to undertake medically unnecessary procedures, in violation of their human rights. Homophobic, biphobic and transphobic attitudes remain deeply embedded in many cultures around the world. Just decriminalising consensual sexual relations between persons of the same sex will not provide them with the same social equality as heterosexual couples. In India, marriage laws solely recognise heterosexual unions, denying same-sex couples the same benefits and socio-legal recognition as heterosexual couples.
WHAT IS GENDER ?
The notion of gender has always been a controversial subject. Indeed, throughout its phenomenal journey that spans close to a century, gender has undergone a huge conceptual evolution. Gender was primarily viewed by the classical theorists as a manifestation of an individual's biological anatomy. Such biological connotations of gender are mostly reflected in the works of classical gender theorists such as Talcott Parsons, who strongly associated gender with the sex-based roles that an individual is expected to perform in a society.
John Money defined gender as, ‘one's personal, social and legal status as male or female or mixed on the basis of somatic and behavioural criteria more inclusive than the genital criterion alone’, Therefore, there is a widespread agreement among the present scholars that gender, being a social construction, largely operates on the gender relations based on societal norms in question. Interestingly, gender, as a social construction, can vary from society to society. Interestingly, the term ‘society’ here needs to be interpreted in a broader socio-cultural framework beyond the commonly-used political parameters. Manifestations of this gender fluidity have gradually contributed to the inception of many critical concepts of gender such as gender assignment and gender identity. These concepts primarily situate gender as a broader construction, beyond binaries of biological sex of an individual. Ethnomethodology opines that an individual's gender is not what others attribute to them, but rather what they identify themselves with their interaction and behaviour with others. Therefore, the ethnomethodological view primarily regards gender as a situation-specific fluid notion that can be constructed and reconstructed by the actions of an individual. As Zimmerman points out, individuals are constantly in the process of ‘doing’ their gender. This broadened notion of gender potentially attracts critical discourses on other allied issues such as, queer politics, within its fold. There is a growing demand, mainly from intersectional feminists in favour of including different forms of discriminations and violence against homosexuals and queers within the ambit of gender discrimination. Simultaneously, it has to be borne in mind that, though strong patriarchal values of a society continue to nurture these discriminatory practices, however, the very nature of patriarchy itself has gradually evolved towards society-specific subjectivity.
On September 6, 2018, India's LGBT community won its campaign to legalise "consensual sex" between people of the same gender. In Navtej Singh Johar v. Union of India1, one of its landmark decisions, the Supreme Court struck down Section 377 of the Penal Code, 1860, which criminalises carnal intercourse against the order of nature while excepting consensual carnal intercourse and therefore decriminalises homosexuality. While deciding on the rights of the transgender community, the Supreme Court, at the request of the Central Government, limited itself to determining the validity of Section 377 of the Penal Code, 1860, leaving the matter of LGBT civil rights unaddressed.
Even in the contemporary society, the institution of marriage is generally regarded as extending only to heterosexual relationship. But as society is gradually becoming more permissive, acceptance of homosexual marriage has recently been forthcoming under various jurisdictions. However, certain jurisdictions retained statutory provisions only to permit heterosexual marriages. Marriage laws in India only recognizes heterosexual unions, depriving same sex couples of the benefits as well as social and legal recognition that married person enjoys. Same-sex marriages are not legally recognized in India and as a result, homosexual partners are denied many of the legal and economic privileges automatically bestowed by marital status. Though, the initial objective of decriminalizing private consensual sex has been achieved, the demand for recognition of their marriage rights is increasing. Mere decriminalizing consensual sexual acts will not end the discrimination faced by persons who are engaged in long-term same-sex union, on par with heterosexual marriages. Certain legal benefits such as succession, maintenance, pension rights, employment benefits under Employees’ Provident Funds Scheme, 1952 and Workmen's Compensation Act, 1923 and health benefits that are available to married couples are not available to same-sex couples.It is not enough to just decriminalise same-sex acts; same-sex unions must also be legally recognised as heterosexual unions.
LEGALITY OF SAME SEX MARRIAGE
Till 2017, 29 countries have legally recognized same-sex marriages. In 2000, Netherland became the first country to legalize same-sex marriage through a Parliament legislation which has given same-sex couples the right to marriage, divorce and adopt children. Belgium in 2003, Canada and Spain in 2005, South Africa in 2006, Norway in 2008, Sweden in 2009, Iceland, Portugal and Argentina in 2010, Denmark in 2012, Uruguay, New Zealand, France, Brazil, England and Wales in 2013, Scotland and Luxembourg in 2014, Finland, Ireland, Greenland and U.S. in 2015, Colombia in 2016, Germany, Malta and Australia in 2017 have also legally recognized same-sex marriages.Same sex marriages are not illegal in India but the marriage laws in India do not explicitly permit same-sex marriages.
RECOGNISING SAME -SEX UNION AS CIVIL UNIONS
Various nations, including the United States, the United Kingdom, Australia, New Zealand, Latin America, and Europe, have passed legislation to recognise same-sex relationships as civil unions. However, it is worth noting that all of these nations currently accept same-sex weddings as lawful. Given Indian society's longstanding aversion to same-sex partnership, one option for legally recognising same-sex marriage is to grant them civil union status. Civil unions merely provide the union legal recognition and give the partners legal privileges that are comparable but not identical to those granted to couples in marriages. Domestic partnerships, on the other hand, are a type of relationship that grants limited rights to couples who live together but do not intend to marry or whose marriage is forbidden by law. Vermont has adopted the civil unions as alternative to same-sex marriage at the direction of its Supreme Court . but objected by the same-sex proponents on the ground that full equality under the law cannot be conferred upon these peoples through “separate but equal” substitute to marriage. “Separate but equal” institutions brand a particular class with a badge of inferiority and that they are inherently unequal. Without a strong justification a group of people cannot be denied the right of marriage granted to others.
ENACTMENT OF A SEPARATE LEGISLATION
Adopt a separate piece of legislation in Parliament that addresses the civil rights of transgender people in depth. Marriage, partnership, adoption, divorce, child custody, succession, and inheritance must all be addressed under the Act. Because there is no law in India that defines marriage, the Act may incorporate a definition of marriage and partnership. The legal union of a man with a woman, a man with another man, a woman with another woman, a transgender with another transgender, or a transgender with a man or a woman should be classified as marriage.The Act must state that the fact that religious or customary traditions do not permit or forbid such weddings will not prohibit such marriages from taking place, and that such marriages will be solemnised under police protection if necessary. Simply recognising their union will not sufficient; the Act must additionally state that the married couple's or couple in partnership's sexual orientation will not prevent them from lawfully adopting a child. Non-heterosexual married couples or partners will have the same legal rights to adopt a child as heterosexual couples. As a result, the new legislation will address their rights to divorce, child custody, succession, and inheritance.
The Decriminalisation of consensual sex between homosexual people was just the first step. Bold steps such as this are still awaited to ensure them the full equality and dignity which is enjoyed by heterosexual people. Apart from taking efforts to recognise their civil rights, it is critical that this topic be examined without delay, as this group has already suffered greatly. Members of this community were forced to live in constant fear of retaliation and persecution. History owes an apology to members of the LGBTQ community and their families for the delay in providing redress for the humiliation and ostracism they have endured; we should ensure that such an apology is not required in the future due to ignorance of their Fundamental Rights guaranteed under the Indian Constitution based on majoritarian norms.