The Movement for Marriage Equality is Not Mine

Translated from Malayalam (original piece on TrueCopy Think) by Shilpa Parthan

We live in times of extreme trans- and homophobia; there are widespread discourses against queer1 people’s right to live. The judicial verdict to partially abolish2 section 377 of the Indian Penal Code (IPC) – India’s anti-sodomy law retained from the era of British colonialism – came out in 2018. Until then, legal battles and discussions around IPC 377 formed the foundation of India’s queer politics. The judgment, issued by India’s Supreme Court on September 6 2018, was cause for much pride and celebration among queer people all over India. The judgment, issued by a five-member bench led by Chief Justice Deepak Misra, was the culmination of over two decades of legal battles by queer people. The unconstitutional nature of section 377 was established almost a decade before, on July 2, 2009, in a Delhi High Court judgment by Chief Justice Ajit Prakash Shah. Their joy was short-lived – the judgment was subsequently overturned by the 2013 Suresh Kumar Kaushal v. Naz Foundation case, reinstating the capacity of section 377 to criminalize same-sex relations.

After section 377 was neutralized for good 2018, however, we begin to see significant deviations in the trajectory of queer politics in India. Most visible is the takeover of queer politics by the forces of Hindutva [Hindu ethnonationalism] and corporatization. With this shift, India’s “mainstream” queer movement lost much of its political grounding. It is in this context that the question of marriage equality has now emerged as the most pressing issue for queer people.

As Supreme Court hearings around the question of marriage equality are ongoing, the matter has become a major topic of public debate. India’s Central Government has made public its stance against marriage equality – it has informed the Supreme Court that it will not support any kind of legislation on a matter that goes against Indian culture. This was a largely predictable response. In fact, I feel that it will also be unsurprising if the government decides to respond positively to marriage equality. In the past few years, there have been many attempts by the Hindu Right to co-opt queer issues. Oishik Sircar has written about their misgivings about a “new” Indian context where queer people are emerging as everyone’s favorite minority – for the forces of both democracy and capitalism, of both the political Right and the Left.3

Here, I hope to outline the discourses around the Indian government and marriage equality, highlighting the contradictions within them. This piece is not a response to those who continue to argue that same-sex sexuality is unacceptable on moral grounds and is therefore “against nature.” What I adopt here is a stance problematizing normative notions of marriage and family in order to understand the complexities around ongoing discussions around marriage equality.

The Evidence You Demand

What evidence do we have to counter the government’s argument that same-sex marriages are against Indian culture? The counter-argument – that same-sex sexuality has indeed been part of Indian culture – remains limited to invoking references to non-normative sexual practices in the two major Hindu epics, Mahabharata and the Ramayana. For the longest time, enquiries around queer history have remained hung up on these very limited and one-sided readings. Using the figurehead of Ardhanareeswara4 [a form of the divine couple, Siva and Parvati, where they appear as two halves of the same body], Hindutva is fashioning a trans-friendly face. Presenting transgender people in a divine light is ultimately a dehumanizing move – when they gain the status of gods, they lose their status as humans. There are many stereotypes about trans people in Indian society; they are seen as having the capacity to offer blessings, for one. Trans people who are thus superhumanized become ineligible for human rights. It is the same politics that leads Hindutva logics to mark Dalit people as harijan [people of god] and disabled people as divyangan [those with divine bodies].

Implicit in current discussions around gender and sexuality is the imaginary of a savarna5 Hindu future where all sexual difference is tolerated. All the evidence we submit within such narratives work to bolster the Hindutva cause, and to criminalize Semitic religions. Homophobia becomes an exclusively Muslim and Christian vice. It is, therefore, more important than ever to create the understanding that our movements are meant not to take us back to an imagined past, but towards a future where everyone is recognized as human.

The Central Government May Change Its Colors

It will not take long for the government to completely turn on its head the argument that marriage equality is against Indian culture. As mentioned before, the active project of fashioning a queer-friendly Hindutva is under way. Occurring in tandem is the project of Hindutva-washing Indian queer politics. The 2018 verdict that partially read down IPC 377 was unexpected, especially given the government’s silence on the matter. After the judgment, however, many queer activists upheld Prime Minister Narendra Modi as a liberator of queer people. Rainbow-tinted images of Modi and Amit Shah6 began to show up at Pride marches.

There even emerged a narrative that the government’s move, in 2019, of taking away Kashmir’s special status and sovereignty7 led to the liberation of Kashmir’s queer people. Such Hindutva narratives can easily be repurposed in the case of marriage equality as well. As part of the process of Hindutva-washing the Indian queer movement, we are likely to see an eagerness to attribute all homophobic tendencies to Semitic religions.

As Indian followers of Semitic religions come out in opposition to marriage equality, such a polarization becomes easier. Hindutva narratives, on the other hand, have a peculiar capacity to co-opt such apparently progressive causes – we have seen this in the debates around triple talaq and the hijab. Though it may be possible to see the desire to liberate Muslim women as a progressive one, the intent is wholly different. It is our political responsibility to resist such a saffronization8 of the rainbow.

Marriage Equality, Family, and Governance

Both marriage and family are “unnatural” institutions. “Unnatural” is a stamp we often see applied to queer sexualities, but this descriptor is more apt for the cisheterosexual family setup. There is nothing about the cisheteronormative family that is natural or normal; it is an institution that designates and distributes authority. A critique of family is therefore a critique of authority. It is a critique of the cisheteronormative patriarchy that hierarchizes individuals in every aspect and thereby cements its authority. Families are founded upon marriages, and the modern cisheteronormative family, built on the principle of procreation, has taken shape along with systems of private capital.

Let us suppose that the marriage equality debates do end up reinterpreting current norms of family and marriage in India. Same-sex marriages may indeed displace the idea that marriage can only be contracted between a (cishet) man and a (cishet) woman. However, the institution of family has survived unscathed across centuries. It is therefore more likely that the entry of queer people into the institution will simply create a replica of the cisheteronormative order. The authority of the cisheteronormative family, instead of being displaced, might simply be repurposed or continued.

Further, family is inextricably tied to governance; it is among the many strategies that the state uses to control its subjects. It is in the interest of the state to be able to strictly categorize and regulate bodies, ignoring the inherent fluidity and polymorphous nature of desires. Bodies come under the state’s control once they enter the contract of marriage. In this light, it becomes important to ask whether queer relationships can go beyond simply replicating cisheteronormative institutions of kinship based on natal relations. Queer people have a long tradition of building non-procreative kinship, and the important question before us is whether we can utilize this existing potential.

Same-Sex Marriage and AIDS

No less than 21 judges have approached the Supreme Court against marriage equality. Their arguments are well-worn. Their contention that same-sex marriages will increase the spread of HIV-AIDS is old wine in the same old bottle. The history of how anti-gay discrimination in the US was fueled by the HIV-AIDS pandemic, for example, is well-documented.

Recently, a set of statistics about HIV-AIDS was released by the National AIDS Control Organization (NACO) of India. These statistics, released to the public in response to a Right To Information (RTI) request filed by Adv. Tushar Bhosle, revealed that 86 percent of all reported HIV cases are known to have been contracted through heterosexual intercourse. Will there be a demand to criminalize heterosexual relations in light of this information?

The discourse linking HIV-AIDS to marriage equality has the effect of demonizing those who are HIV-positive, those who live with AIDS, and gay and lesbian people. This narrative of seeing sexually transmitted diseases as a social threat and as the inevitable outcome of “depraved” lifestyles needs to be challenged. Such narratives delegitimize all sexual relations outside the institution of marriage.

The (Im)Possibilities of Marriage Equality Discourses

As things stand, there are only two options presented to us by the marriage equality discourse. One is to stand for marriage equality and consequently gain a place on the side of progress. We might even be able to gain a place on the same map as Europe and other so-called inclusive regions of the globe. The other option is to stand against marriage equality and be branded a religious fundamentalist or a conservative. The place of those who are against marriage equality is with the “primitives.” It is important to note that there are no other stances in the discussions taking place around us. This black-and-white discourse has no place for long-standing feminist critiques of marriage or for queer counternarratives. The marriage equality discourse is rapidly shrinking to eliminate all possibility of dialogue and nuance.

Society abhors relationships that are not authorized by marriage. The legalization of marriage irrespective of sex and gender might give rise to a new hierarchy – of those who have now gained entry into the institution of marriage and those who still lack the sociocultural capital to marry. It has been observed that marriage equality will simply reinforce the inequality between the married and the unmarried. Judith Butler has noted the tendency for gays and lesbians to celebrate legal recognition and forego their prior political commitment to fight for a social order beyond the aspiration to marriage equality:

Currently, thousands of gay people, exhilarated by the thought of legal recognition, forget their prior political commitments and their hopes for a social movement that exceeds the demand for this one legal right. They do not think about the history of property and race that has gone into the idealized version of the institution they are entering, and they do not consider what social forms of kinship they are delegitimizing along the way. If gay marriage promises health insurance, power of attorney and inheritance rights for one's partner, then perhaps we can consider an alternative political path. Instead of battling for gay marriage, we could be seeking legislation to guarantee healthcare to every citizen regardless of marital status, to separate power of attorney and inheritance from marital status and to leave marriage as a "symbolic" act that consenting adults might perform if they so wish. (The Nation, June 17, 2004)9

Much like heterosexuality becomes limited to marriage, marriage equality can similarly repress the more free and fluid expressions of same-sex desire and love. With the consolidation of the idea that only those who enter the cisheteronormative family contract are eligible for constitutional rights, it becomes ever-easier for the state to cast as disreputable and immoral those who are unmarried and those who refuse procreative kinship.

Will Marriage Equality Cure a Homophobic Society?

Marriage and family enjoy pride of place in Indian social imaginaries, and counter-imaginaries that seek to overthrow these values will naturally face immense resistance. Marriage is presented as a solution to all problems; a panacea. If a girl’s unsanctioned love affair is found out by the family, the first thing to do is marry her off to another boy. Society tells us that homosexuality can be “cured” through heterosexual marriage. All of a man’s vices will disappear after marriage; the alcoholic will stop drinking. In cisheteronormative society, life revolves around marriage. It becomes hard even to imagine life outside of marriage.

What, then, is marriage equality meant to cure? Will it help us “cure” homophobia? One of the main arguments put forth for marriage equality is social acceptance. Through marriage, those who were once branded as “living sexually depraved lives” and as “carriers of sexual disease” will now be able to gain entry into the institution of family. The morality of the cisheteronormative majority can also be assuaged through this move. The ways in which ideas like respectability, morality, and acceptance find a place in these debates need to be subject to discussion and scrutiny.

In the US, the demand for marriage equality has, in many ways, been bolstered by the moral panics around the spread of HIV-AIDS. What guided the support for marriage equality was the belief that finding a monogamous partner and entering kinship systems through marriage would put an end to the risk of AIDS. Homosexuals were portrayed as the cause of the HIV pandemic by mainstream society. What led many gays and lesbians to the demand for marriage equality was the belief that marriage will allow an escape from this stigma and enable assimilation.

There will be a group of people who will always remain othered to the respectably married same-sex couple. We have many examples to show us just how intolerant society is towards trans people who engage in sex work. Who are the people who will have no value in the marriage economy? Which are the bodies that will not be marked for mainstream acceptance? In today’s times, it is possible that Hindu-majority Indian society may come to accept the same-sex marriage of a savarna Hindu cis man. But they will still find it difficult to accept the heterosexual love of a Dalit cis man. The case of Kevin – a 23-year-old Dalit Christian from Kerala who was murdered in 2019 by the family members of the savarna woman he married – is just one among many examples. We must remember that Kevin’s right to a heterosexual marriage was denied in the state of Kerala, where there is a powerful tradition of anti-caste social reform and so-called claims of “castelessness” in progressive savarna circles. It is this same system that is able to murder Kevin with no hesitation – it has the capacity to easily obliterate forms of heterosexual love that destabilize caste hierarchies.

Tomorrow, if marriage equality materializes, just who will have the sociocultural capital to utilize the benefits of recognition? We cannot address this question in the Indian context without talking about caste. Let us take as an example the matrimonial ad that Padma Iyer, the mother of well-known gay activist and politician Harish Iyer, placed in The Hindu [newspaper]: “Seeking 25-40, well-placed, animal-loving, vegetarian GROOM for my SON (36, 5’11”) who works with an NGO, caste no bar (though IYER preferred).” The ad led to many kinds of discussions. Whereas the casteism implicit in the ad was critiqued by some, it was hailed as heralding change in other quarters. Is this what change looks like? There will be many things that remain unchanged even if marriage equality becomes a reality. We will see new kinds of matrimonial ads in future with the same old “no SC/ST”10 tags. The question is simple: are these legal battles around marriage equality capable of challenging caste endogamy?

Marriage Equality Is Not The Path to Liberation

My declaration that the movement for marriage equality is not mine should not be read as an agreement with the stances of the government and homophobic, anti-human-rights groups. The marriage equality discourse is one in which interventions can very easily be misconstrued and must therefore be staged very carefully. I am not ready for any compromise with approaches that impinge on queer people’s right to live and thrive. And so, I believe it is important, apart from disagreeing with the government’s stance, to also point out the fallacies in it. What I next lay down are the many questions I have with respect to the demand for marriage quality, which is currently enjoying a lot of support and acceptance. These questions may shed more light on just why I maintain that the movement for marriage quality is not mine.

Who are the people helming the current movement for marriage quality? Whose are the voices that get to represent the Indian queer movement as a whole? These are the questions that come up for me, first and foremost. If the government changes its stance to that of affirming marriage equality, what kinds of people will be able to emerge as its beneficiaries? I am certain that the judgment will not bring about major changes in my own life, for one. Only those who already enjoy certain special rights will be able to relate to this cause and join the movement. How will marriage equality become a victory for someone who does not even have the privacy or a room to masturbate? Look around us: is marriage equality the most pressing issue we face? Or rather, in whose perspective does marriage equality become the most crucial issue to be resolved?

It is quite recently that Dalit trans activist Grace Banu approached the Supreme Court demanding horizontal reservation11 for trans people. Will this discussion around reservations12 enjoy the same kind of support? What is your priority: daily sustenance or marriage? How many trans people are brutally murdered on India’s streets? Why do these killings occur? Who are the people who are killed? The answer is simple: it is those queer people who do not have access to the privileges of marriage, who have no sociocultural capital, who are marginalized on the basis of caste and class. Will mainstream queer politics in India be able to address the caste and class aspects of the issue? Can it question the violence wielded by the state and society? What does it have to say about those queer people who beg or engage in sex work for their livelihood? What about the issues faced by aged queer people? What does the movement have to say to the 51 queer people who were charged with sedition13 during the 2020 Pride March in Mumbai, who may lose their very right to citizenship?

Queer liberation is not the liberation of any particular category of people or specific individuals; it is the liberation of all. The movement for marriage equality is meant to create benefits only for a small elite. To my mind, there are far more pressing issues than marriage to be addressed. The issues that most urgently need resolution must be at the center of our movement. And so, this movement for marriage equality is not mine.

• 1. Since the Indian history of engagement with the term "queer" is different from the US context of homonormativity and trans erasure, people in India use "queer" as an umbrella anti-identitarian term to describe everyone in the LGBTQIA+ spectrum, including trans folks, and this usage is reflected in the piece.
• 2. Section 377 of the Indian Penal Code prescribes punishment for those who “voluntarily [have] carnal inter­course against the order of nature with any man, woman or animal,” with the qualification that “[p]enetration is sufficient to constitute…carnal intercourse.” The 2018 judgment did not amend or abolish the act as such, but merely limited its applicability. It was re-interpreted as not applying to consensual acts between adults, and remains in force to punish sex with minors and nonhuman animals and non-consensual sex acts. As such, the problematic binary of “natural” and “unnatural” to arbitrate the ethicality of sex remains unchallenged; the judgment simply argued that homosexuality is natural.
• 3. Sircar, Oishik. 2017. “New Queer Politics in the New India: Notes on Failure and Stuckness in a Negative Moment.” Unbound: Harvard Journal of the Legal Left 11 (1): 1–36.
• 4. https://en.wikipedia.org/wiki/Ardhanarishvara
• 5. Dominant-caste; those with a place in the varna typology of caste as opposed to Dalits, who are excluded from the system and subject to apartheid. See https://www.equalitylabs.org/castesurvey/#what-is-caste
• 6. Widely seen as key strategist for the BJP and Modi's close aide, Shah is the incumbent Home Minister of India and the Chairperson of the party coalition led by the BJP, the National Democratic Alliance (NDA).
• 7. See https://standwithkashmir.org/intro-to-kashmir/
• 8. Saffron is the color associated with the Hindu Right.
• 9. https://www.thenation.com/article/archive/can-marriage-be-saved-0/
• 10. SC (Scheduled Castes) and ST (Scheduled Tribes) are legal categories used by the Indian state to extend affirmative action and welfare to those communities that are marginalized on the basis of being outside the varna system of caste (Dalit is a political autonym used to unite the many caste groups against whom untouchability is practiced), and on the basis of being forest/pastoral communities, respectively.
• 11. The current approach of the national government has been to recognize all trans people as part of the “OBC” or “Other Backward Castes” category in which certain non-Dalit lowered caste groups are currently offered affirmative action in India. This will grant trans people reservation in public institutions as one category among the over 5,000 caste groups recognized as OBC by the Indian government. Grace Banu and her organization, Trans Rights Now, are part of a Dalit leadership that is countering this move as erasing caste differences among trans people, asking for horizontal reservations for trans people within each of the existing reserved categories laid out in the Indian system.
• 12. Reservations, or relaxed eligibility criteria for those belonging to caste and community groups that have been historically discriminated against, were systematically set up in the Indian public sector in the 1990s. Since then, they have been subject to intense debate and casteist resistance, with the Hindu Right regime simultaneously expanding reservations to increase their vote bank while diluting the principles on the basis of which caste-based reservations were originally set up. Reservations remain a “hot topic” demarcating political ideologies in India and the site of both Dalit-Bahujan-Adivasi political articulations and casteist backlash. The question of extending reservations to dominant groups, backed by the BJP, is currently fuelling unmitigated ethnic violence in the northeastern state of Manipur.
• 13. https://thewire.in/law/mumbai-sedition-sharjeel-imam