At a memorial held for a queer person we lost to an instance of homophobic and transphobic violence in Pune last year, a close friend of the deceased while addressing a roomful of grieving folks asked, “Where was the queer community when he needed us? Does the queer community really even exist?”
Indeed, given the historical deprivation, does a queer community really exist as a material, social, and psychological support system beyond a common identification based solely on gender and sexual identity?
Kinship, which subsumes marriage and family organisation, provides the language for entitlements to various kinds of resources including food, shelter, health, security, support and companionship, and the obligations and responsibilities of the members of the group in the business of living.
As is amply evident from the submissions made in the Centre’s response, marriage has historically been imagined as a heterosexual union between a “biological" man and a woman. Queer people have, thus, been excluded from these networks of organising resources and responsibilities for centuries. While the Centre gravitates towards looking at this systematic exclusion and erasure as natural as well as utilitarian, we must ask what the costs of securing such a system are.
A Normative Approach Towards Gender Discourse & Institution of Marriage
The privileging of heterosexuality as natural and normal is termed 'heteronormativity'. The gender binary (the presumption that there are only two distinct opposite genders), and the belief that sexual and marital relations are most fitting between people of the opposite sex form its focal points.
The concept of heteronormativity, thus, allows us to move from viewing gender and sexuality as natural processes to understanding regimes that institute certain forms of gender and sexuality as preferred, permissible, or “natural” as opposed to others which are then deemed criminal, unlawful, deviant or “unnatural”.
In our context, marriage, which the Centre has taken great pains to describe as a holy union, a sacrament, historically has been a tool of the Brahmanical social order to maintain the caste and gender hierarchies that form its organising principles. Caste endogamy, obligatory heterosexuality, the gender binary, and the constraint of female sexuality are the pillars on which this social order rests.
The State and social regulation or policing of inter-faith, inter-caste, and same-sex marriages highlight the precariousness and instability of this system. Securing this system also requires inculcating in the young, character traits appropriate to reproducing the system. Thus, with reference to sexual orientation and gender identity, marriage is also imagined as a union that has to necessarily produce cisgender heterosexual offspring capable of continuing this system.
The same State and society this ‘family unit’ holds up, enact untold pressure and violence on children to ensure their conformity or compliance with this system. And it is exactly the voices of younger queer people that are absent in the state, legal as well as progressive discourse around the legalisation of same-sex marriage.
Both the Solicitor General in stating the need to examine the psychology of a child raised by same-sex parents and the CJI in responding that the child of a gay or lesbian couple does not have to be gay or a lesbian fail to acknowledge the fact that queer children born to cisgender heterosexual parents already exist. We are not born to queer parents or in queer families and spend our whole lives trying to find a sense of acceptance and community while simultaneously navigating a world where normative heterosexuality underpins our access not just to the institution of marriage but also education, healthcare, housing, employment, finances, and citizenship.
Narratives of familial rejection, bullying and harassment at the hands of peers and teachers, higher dropout rates, and mental health issues are all too common among queer youth and the Centre’s response in the case of legalising same-sex marriage only implicates the State in the systematic deprivation and erasure of queer youth.
Does De-Criminalisation Ascertain Sexual Non-Discrimination?
As has been noted by Professor Holning Lau in their paper titled 'Sexual Orientation and Gender Identity Discrimination Law’, governments historically have not reformed their laws to address discrimination against queer people in a range of contexts including the criminal system, employment, housing, public accommodation, marriage, and parenting all at once but instead, incrementally expand the range of contexts in which they prohibit SOGI (Sexual Orientation and Gender Identity) discrimination.
Given a legal terrain where queer people/SOGI minorities have only recently received the legal right to self-determination, their status shifted from criminalised to decriminalised (with the social stigma still intact), and have, at best, a decades-long struggle to look forward to with respect to full citizenship and constitutional protection; Where is the queer community when our younger generation needs us?
Queer people/SOGI minorities have only recently received the legal right to self-determination, their status shifted from criminalised to decriminalised (with the social stigma still intact), and have, at best, a decades-long struggle to look forward to with respect to full citizenship and constitutional protection. This journey is further complicated by a Brahmanical State that prioritises keeping its heterosexual family units intact, that can at best be bothered to deem our relationships “not unlawful” and mythologise our lived realities and identities.
Given such a landscape, can we afford for our imagination of kinship as a movement to end at the campaign to legalise same-sex marriage? Or do we hope to imagine alternative kinship structures that prioritise challenging oppressive power structures, acknowledge the intersectional nature of identities within and outside the queer community and allow us to develop a collective consciousness based in a genuine understanding of our social conditions and a desire to change them?
Is Institutionality of Marriage the End Goal for Queer Community?
It is crucial that we anchor our imaginations of life in our collective responsibility towards each other and our future generations, in the annihilation of caste, class, gender, religious and ableist barriers that prevent us from being our own allies.
Till then, I would like to remind the State to not look for the words of its Manu in Ambedkar’s constitution. Through the constitution, we contend with our history, engage with our present and write our future as a democracy.
(Smriti (he/they) identifies as a trans man and is co-founder of the Pune Queer Collective. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)