The entire transgender and non-binary communities have been left out from the petitions before the courts when they are the ones facing the most atrocities. As they lack most basic amenities, love is the last thing on their mind. Even if one does find love, it is still unknown if the union between a transgender and a cis-gender person will be legally considered a same-sex or a cross-sex marriage.
Who here has not been teased by a random aunty over the societally accepted beauty standards? Or told “you’re next” during their cousin’s wedding by an older member of the clan? Marriage as a concept is considered integral, more so in a nation like ours where it is seen as a legitimate way of living together and having intercourse.
This sense of normalcy is a driving force for many queer couples to approach the courts to grant their marriage a legal status. Currently, these petitions are with the Constitution Bench of the Supreme Court. But the narrative that it is what the entire community would want is a far-fetched assumption.
When one goes through the list of the petitioners, a pattern can be found among them — all being from a certain privileged class and caste. One would not find Dalit, Adivasi, or queer people from other religions as a part of the discussion. The entire transgender and non-binary communities have been left out as always when they are the ones facing the most atrocities.
One important thing to note is that the lack of representation is not new and dates back to the decriminalisation of homosexuality in 2018. It was NGOs such as Naz Foundation and many members from different marginalised intersectional identities that started the fight but their names got lost when the case of Navtej Singh Johar vs Union of India got the limelight.
While talking about representation, highlighting specifically the transgender community becomes very important. Raghavi, a final-year law student and a trans-woman, argues that most transgenders do not have access to basic necessities like education, healthcare, or a roof over their head and going out to find love is the last thing on their mind. Even if one does find love, it is still unknown if the union between a transgender and a cis-gender person will be legally considered a same-sex or a cross-sex marriage.
Cisgender upper-caste gay men being the flagbearers of the entire queer community is often questioned by people. This in turn should also make us question our allyship as most of it is restricted to enjoying meet-ups with cisgender homosexual people while the transgender community is left to fend for themselves during violent situations.
A disabled trans-masc student who wishes to remain anonymous feels the focus on cis same-sex marriages will create more hierarchies within the community between “normal” cis-queers and “deviant” queers which will further alienate the trans and non-binary community.
One of the acts the petitions are currently challenging is the Special Marriage Act. Section 8 of the legislation states that anybody can object to the marriage that is intended to take place.
If and when the Marriage Officer receives an objection, a necessary investigation needs to be carried out and the nuptials are kept on hold. This provision will always have a chance to turn violent. Apart from this, when laws based on supposed ‘love-jihad’ exist, one can only guess how same-sex unions will be affected by it.
Since the notion of a traditional family did not work for queer people, they went to lengths to establish alternate family structures which are less violent and less toxic.
When coming out as queer would cause families to discard even their loved ones, it is only another queer person who would pick them up. A wonderful example to help understand this would be the ‘guru-chela’ relationships in the Hijra Community of India. Hijra gurus initiate and accept other people from the community through a ritualistic ceremony. Through this, the gurus ‘adopt’ and bring them into their house which is also known as a gharana.
A traditional family is heteronormative and monogamous that reenforces social divisions that can easily push different genders and sexualities to the margins to term them as “unacceptable”. Legalization of same-sex marriage may cause non-conforming people from the LGBTQIA+ community to conform to societally accepted familial systems which would give out the message that traditional families are the only acceptable structures.
Queer relationships unlike anything else have shown that a person can love more than one person at the same time through valid polygamous relationships. It has also shown the world how to remove the taboo around sex and be comfortable with who you are. Queer sex has also demonstrated how there are different forms of pleasure other than the societally accepted methods.
Marriage is an aspiration for people in love. But no matter how much we try to think of it as just an act of commitment, it does bring certain legal aspects with it. Any form of caring relationship should have benefits without registration. With marriage, the spouse gets to have the rights such as being a nominee in the health insurance, inheriting property, and so many other benefits. If one has to think of an alternative to marriage, one can think of cohabitation rights or other such legal protections for consenting adults in any relationship. Jwalika Balaji, a final year law student at the National Law School of India University Bangalore, believes that there is a need to identify the benefits that come with marriage and open them so that people can take welfare without entering into a formal agreement.
While we are having this conversation, it is also important to know that the reason behind it is not to discourage same-sex marriages. There is no wrong in consenting adults to decide for themselves, but it is imperative to know it is not the end goal. There is a fear in the marginalised section that cis-queers will abandon the fight once same-sex marriage is allowed. Unions can work as a stepping stone to an egalitarian society and they should not let us from imagining an alternate and ideal future. So, it is time to let go of the narrative that the entire queer community is looking forward to such legislation being made.
(The views expressed are personal to the author.)