Same-sex marriage: Give us equality, not ‘empathy’

When will justice and constitutional morality progress from weekend speeches to judgements pronounced in court, asks Chittajit Mitra

LGBTQIA+ people protest the Supreme Court verdict in Delhi (photo: Vipin/ National Herald)
LGBTQIA+ people protest the Supreme Court verdict in Delhi (photo: Vipin/ National Herald)

Chittajit Mitra

Tuesday, 17 October could have been a day to celebrate the constitutional ethos of our country, but it was not to be. The best a five-judge Supreme Court constitution bench could offer a hopeful and expectant queer community was ‘empathy’. What a letdown. Especially when we have seen some landmark judgements from this court, some genuine attempts to redress wrongs that plague our society.

The Vishakha case comes to mind, where the court formulated guidelines to help survivors of sexual harassment at the workplace. These guidelines formed the basis of the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013, more commonly known as the Prevention of Sexual Harassment (POSH) Act.

Reiterating earlier recommendations from Navtej Singh Johar vs. Union of India (which decriminalised consensual sex between adults of the same sex), NALSA and other judgements cannot hide the simple fact that this one is a huge setback for the queer community in India. The sense of justice and constitutional morality needs to progress from weekend speeches to judgements pronounced in courts.

Taking the fight for our fundamental rights to the highest court of the land predates our long struggle on the streets. Numerous queer activists, collectives and organisations have been trying to educate people on sexuality, gender and issues around it, while also drawing the attention of governments to these issues. It is important to note that apart from the advocacy efforts of the community, progressive judgements help create awareness on a larger scale and even help queer people from remote areas to understand and express their true selves.

The 17 October verdict will have the unfortunate fallout of pushing many queer people — especially from marginalised backgrounds — back into the closet. Queer people who run away from their abusive natal families with their lovers were hoping for a judgement that would help them cement their relationships. But all they got was empathy. Putting the ball back into the government’s court is counter-productive, given its conservative views on the LGBTQIA+ community.

The fact that the Transgender Persons (Protection of Rights) Act of 2019 does not offer the same rape laws to be found in the Indian Penal Code speaks volumes about the insensitivity to the community and the discriminatory mindset of the lawmakers. The demand for horizontal reservations for the transgender community is an ongoing battle, with Karnataka being the only state where a meagre one per cent horizontal reservation has been granted.

It is important to state that our community exists along the same intersections as others who live in Indian society. We are not only fighting queerphobia but all kinds of social prejudices and systemic problems like casteism, Islamophobia, poverty and unemployment.

While there is a growing trend among queer people to prefer singledom, why should the right to marriage be denied to queer couples who have been living together for years? Or to individuals who have been hoping to finally formalise their love with a legal marriage, and avail the ‘bouquet of rights’ that comes with it? Refusing to grant legal recognition to the loving relationships of queer people is a way to differentiate them from their heterosexual counterparts, and deny them equal citizenship.

I am still processing the hurt and pain this verdict has caused. A number of people have already begun thinking about emigrating to countries where they will be given respect and equal treatment rather than the sop of ‘empathy’. True, this is a luxury the less privileged cannot even dream of. To them, I say: “We are a resilient lot. In the face of fascism and growing hatred, we have always stood for equality and freedom, and we will keep fighting until we get our due.”

(Chittajit Mitra (he/they) is a writer and translator from Allahabad. They co-founded RAQS, a queer collective working on gender and sexuality)

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