Aditi Anand and Susan Dias are same-sex couples from Mumbai, living together as dear members of their families, leading two successful careers as co-founders of their own companies and raising a child. While the status quo only identifies heterosexual binary genders as fit for functioning as a family, Aditi and Susan are rewriting this narrative. They are growing together as individuals as well as taking care of their adopted child, and each of their families.
However, when the social and cultural constructs legalise a homogenous definition of ‘family’, many like Aditi and Susan are alienated. They face social discrimination and legal injustice in trying to attain the same rights that they deserve as heterosexuals.
For instance, though Aditi and Susan are both parents to the child, the law only allows one of them to be the child’s legal parent. As we can see, the construction and implementation of this law are attuned to a heterosexual boundary, often guarded by patriarchy that asserts only a father and mother can be the parents of a child.
‘’There should be no reason that our child should be denied the right to two parents,’’ says Aditi. Same-sex couples of the LGBTQ+ community are fighting for these legal rights that diminish the existing gap between the rights entailed by heterosexuals.
The notion of marriage and family is deeply entrenched and recognised as a social and cultural institution, backed up by legislation. In such an existing construct, there is no space for love, self-respect or the right to choose. The LGBTQ+ community too have dreams of preparing their wedding vows, walking down the aisle and wearing their special wedding dress and raising a child as parents than living as ‘unrecognised’ and ‘unseen’ couples in a secret hideout.
They are also entitled to the same rights in owning a house together or inheritance, the right to a joint account and to be lawfully regarded beneficiaries just as that of the heterosexuals. Same-sex couple relationships are also considered inefficient and deemed to be unfit as a family in the absence of either of the binary genders. Thus giving them their fair share of legal security and other provisions is significant.
This ensures that they can justly exist in the identities and relationships of their choice and mitigate the discrimination between heterosexuals and queer community.
What makes the appeal a milestone in ensuring Constitutional and LGBTQ+ Rights?
A same-sex couple Supriya Chakraborty and Abhay Dange set out to file a writ petition challenging the prejudice towards the homosexual community. The challenge was to establish their right to institutionalise and legalise their relationship. The call was taken along by more who on the same premises seek to attain respectable recognition and validation to live with the same rights as heterosexuals.
If taken as a win, then India will be the first South Asian country to legalise same-sex marriages. But more than the role of the pronouncement, the appeal has brought back some of the pressing questions of an unsettled conversation that is still debated by the conventional, orthodox conscience.
The questions range from, will the gap of either of the binary gender be a hindrance in a marriage relationship? Wouldn’t it affect the child in such a family system? Or will it ever last? Does it satisfy the subjects’ needs of marriage, and what if it ultimately disrupts the natural rhythm of life as such?
However, the appeal has been able to counter posit the arguments and challenge the existing narratives around marriage as a conventional practice and as means of procreation alone. Various research and surveys conducted, find that these apprehensions and prejudices are not true in reality. Much of the data show that same-sex couples have good quality, mutual understanding and equal or more quality of family lives just as that of heterosexual couples.
In 2021, the American Community Survey was conducted to compare the household characteristics of opposite-sex and same-sex couples. An extensive amount of data collected during the survey was found to be a befitting response to the apprehensions and stereotypes of the majority who do not accept the determination of the queer community to live as families. Contrary to their prejudices, one of the data found that the employment status of same-sex couples is more than that of opposite-sex couples. Also the former held a greater per cent of bachelor’s degrees than the latter.
When it comes to children in the household, though the per cent was greater for heterosexual couples, for homosexuals it is not far behind. The household income was also found to be equal, with the majority of both the opposite-sex and same-sex couples earning above $100,000 or more. Relatively the same per cent of couples also live in their own houses.
But more than this, it would also be the subtle changes that will create the actual changes in the society or in the neighbourhood they live. Right from the amendment to be made as part of the law to the administrative and executive bodies and then to the people on the ground.
From parenting and love to the language they come across in legal and social spaces. It might start right from the application forms that a child, raised by same-sex couples can one day fill up the columns without confusion or the feeling of being unrecognised. From embracing their identities under legal protection without fear of alienation and discrimination to the irresistibility of respecting them in the mainstream. Breaking down the idea of binary genders of a ‘father’ and ‘mother’ as the only parents also becomes an essential part of the appeal.
The Government Opposition and the Fight Ahead
The Central Government of India, opposing the move to recognise and legalise same-sex marriages says that this is not in the purview of the court to decide and calls all state legislations to heed and cast a vote on the subject. According to the Government “Living together as partners and having a sexual relationship by same-sex individuals … is not comparable with the Indian family unit concept of a husband, a wife and children.
Such a statement from the government that relies on tradition and pan-nationalism to decide upon the faith of its minorities including sexual minorities is not surprising. But if the government can support the move to decriminalise homosexuality but cannot attribute the legal rights that come along with it, it questions the credibility of their first move itself. Also when moral policing is headed by BJP’s young cadet parties, the government will have a tough time trying to either read down the petition from the court or issue a statement, clarifying its position among its members.
At the same time, the fight for legalising same-sex marriages cannot end with a legal sanction alone. Because in India, acceptance and recognition come with a lot of privilege. The intercaste same-sex marriages or couples from socially and economically backward communities have a long way ahead to live with dignity and respect. Amidst the social and political discrimination that they confront daily,
Thus the fight for same-sex marriages should also consider the plight of other minorities such as the Dalits who are doubly marginalised within and outside the LGBTQ+ community. Especially when their right to live with dignity and avail equal opportunities as same as that of the heterosexual majority is threatened each day, in every space.
Legalising same-sex marriages gives them the right to wed and recognises them as a functional unit of the family just as heterosexuals. And destigmatizing same-sex marriages among sexual minorities can ensure equal rights and equal provisions as heterosexuals. For the ones who consider love beyond the social and cultural barriers, the law will assure dignity, respect and legal security. And the fruits of this fight can hopefully set a precedent to embrace the fight for the rights of minorities as well.