Beyond Matrimony? Charting A New Course For LGBTQ+ Unions in India

Welcome to Worldcrunch’s LGBTQ+ International. We bring you up-to-speed each week on the latest on everything LGBTQ+ — from all corners of the planet. This week, we feature an article by Aishwarya Singh and Meenakshi Ramkumar for New Delhi-based news site The Wire about how LGBTQ+ couples in India are looking at other forms of unions after the country’s decision to reject marriage equality. But first, the latest news…

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TW: This content may address topics and include references to violence that some may find distressing

5 things to know right now

• Mexico’s first openly non-binary magistrate found dead: Jesús Ociel Baena, Mexico’s first openly non-binary member of the judiciary and prominent LGBTQ+ activist, was found dead in Aguascalientes, alongside their partner. Security Minister Rosa Icela Rodriguez said it was unclear whether the deaths were “a homicide or […] some kind of accident.”

• Gay Israeli soldier displays LGBTQ+ flag in Gaza: A gay Israeli soldier held an LGBTQ+ flag in Gaza, reading: “In the name of love.” Yoav Atzmoni, an IDF soldier who was called up to fight after the October 7 massacre, said he displayed the flag in defiance of the territory’s harsh anti-LGBTQ+ stances. Israel’s official social media accounts called it “The first ever pride flag raised in Gaza.”

• Latvia votes to allow same-sex civil unions: Latvian lawmakers recently voted to allow same-sex civil unions, providing same-sex couples with legal recognition for the first time. They will still have fewer rights than married couples. The legislation, due to take effect in mid-2024, allows same-sex couples to register their partnership, giving them hospital visitation rights and tax and social security benefits, but still not the right to adopt children or inheritance.

• Austria to compensate gay people who faced prosecution: Austria has set aside 33 million euros to compensate thousands of gay people who, until two decades ago faced prosecution, the country’s justice minister Alma Zadić announced. Austria decriminalized homosexuality in 1971 but certain discriminatory provisions remained in place until the early 2000s. Zadić said that an estimated 11,000 people were eligible for compensation.

• Gay Games in Hong Kong: It’s a wrap for this year’s Gay Games in Hong Kong, with participants celebrating the end of the week-long sporting competition. Taking place in the special administrative region of China for the first time, the games featured events like dragon-boat racing and Mahjong. Despite political challenges and strict LGBTQ+ laws in both Hong Kong and China, the week was hailed as a celebration of inclusion and diversity.

Beyond Matrimony? Charting A New Course For LGBTQ+ Unions in India

NEW DELHI — The recent judgment of the Indian Supreme Court on marriage equality was, without a doubt, a disappointment for India’s queer community. With a 3:2 majority, the Supreme Court held that queer couples in non-heterosexual relationships do not have a fundamental right to marry and denied legal recognition to their relationships. The court’s judgment placed heterosexuality at the centre of marital relationships by holding that marriage between persons of opposite gender is the only valid form of marriage under Indian law.

Thus, while transgender persons identifying within the gender binary who are in heterosexual relationships are entitled to marry, queer couples who do not find themselves in what can be classified as heterosexual relationships are left without any legal remedy.

But perhaps in rejecting that there is any fundamental right to marry under the Constitution for queer couples or otherwise, the court has opened a portal (especially in the minority opinions) for re-imagining the existence of what were understood to be matrimonial entitlements (like succession rights, adoption, guardianship, financial entitlements that accrue to spouses, etc.) beyond marriage.

The petitioners had primarily mounted a challenge to the provisions of the Special Marriage Act, 1954 arguing that the non-recognition of non-heterosexual marriages under the Act violated their fundamental right to marry and discriminated against them on the basis of sexual orientation. An important prong of the petitioners’ argument was that they are denied the matrimonial benefits listed above.

Indeed, the queer community’s quest for marriage is either grounded in either the belief that marriage is a normative ideal to which queer people should also have access to; or that marriage provides a bouquet of entitlements, the absence of which significantly disadvantages those in queer relationships. Some queer individuals will agree with both propositions. But many challenge the elevation of marriage as the norm and as an ideal that all of us should aspire towards. They highlight the oppressive foundations of marriage, specifically its heterosexist nature and foundation in caste endogamy, which is difficult to dismantle. Further, they argue that marriage as an institution, through the bundle of rights and entitlements it provides, privileges married partners over others who choose to not marry or cannot marry.

It is difficult to contest that marriage is founded on heterosexist norms. Marriage continues to be imagined primarily as a heterosexual union (even if the social reality may be different or is changing). Queer people across jurisdictions have won marriage rights after much suffering and only after being able to prove that their love/relationship conforms to a heterosexual ideal.

The majority opinion authored by Justice Bhat in the marriage equality judgment also highlights and reinforces the heterosexist values that are attached to marriage. He says, “marriage, however, has been regarded for the longest time, as a relationship of man to woman” and at another place, he reiterates that, “traditions of marriage per se may not support the basis of recognition of marital relationships between non-heterosexual couples”.

Examples of weddings between same-sex couples in India or of relationships that are functionally identical to marriage between same-sex couples (in the absence of legal recognition) are not enough to displace the normative assumption that marriage is a heterosexual union. Social marriages that deviate from the heterosexual script are considered only as exceptions, not as evidence of a pluralist understanding of marriage. They remain exceptions because the norm that the marriage establishes is of the heterosexual union.

Even if we say that queer couples, by gaining the legal right to marry, can somehow displace these heterosexist assumptions of who can marry and whom, they cannot dismantle the privilege of committed coupledom that marriage prescribes over other forms of adult associations and kinship. This is because these other forms of adult associations veer off the course of heteronormativity in ways that same-sex committed coupledom does not. As Katherine Franke has argued: same-sex marriage can still fall under the ambit of traditional family values that promote nuclear family, bourgeois respectability and privatized dependency.

Marriage’s place as the normative ideal creates symbolic harm for individuals, queer or otherwise, who refuse to participate in marriage. In fact, feminist critiques of marriage as an oppressive institution have been the most trenchant. They have highlighted how marriage continues to be a patriarchal institution, even if many of the marriage laws that discriminated against women (like the law of coverture) have been removed.

Queer participation in marriage reinforces its status as the most sacred form of commitment, as the only relationship form that can confer dignity to queer lives and something that saves individuals from the doom of loneliness. In Obergefell v. Hodges, the U.S. Supreme Court relied on similar tropes stating that marriage has some transcendental importance and it’s the only institution that can fulfill our most “profound hopes and aspirations”. […]

Read the full piece by Aishwarya Singh and Meenakshi Ramkumar for the Wire here.