Legalising Same-Sex Marriage: Time to Look Beyond Gender Binaries

The opposing argument mentions that same-sex marriage will lead to confusion in the implementation of existing laws.

When the term “biological man and woman” is given weightage, it leaves out a big section of the population that does not fit into the above binaries, even biologically.

(Photo: The Quint)

(This article was first published on 25 September 2020. It has been republished from The Quint’s archives in light of Delhi HC’s hearing on same-sex marriage pleas today.)

When the Supreme Court decriminalised homosexuality two years back and there were celebrations across the length and breadth of the country by an optimistic lot of people, a small section of people had remarked that decriminalisation of Section 377 of the Indian Penal Code was only a small step towards a long road that lay ahead in terms of the “acceptance” of what largely entails the contrast to heteronormativity.

Cut to 2020, and we are in the midst of an argument put forth by the Solicitor General of India Tushar Mehta wherein he mentioned that the petition for same-sex marriage falls out of several criminal and civil laws and that marriage can happen only between a “biological man and woman.”

Two stark points need to be considered here with respect to the above opposition.

When marriage is a social institution, gender – which is a social construct arising out of social conditioning and not sex, which is biological – needs to be considered for marriage. Thus, a marriage happens between two genders going by the binary that the above argument seeks to emphasise and not between two sexes.

Second, when the term “biological man and woman” is given weightage, it leaves out a big section of the population that does not fit into the above binaries, even biologically.

New Laws Needed For Changing Cultural Practices

Another point raised by the Solicitor General is that statutory laws codify the social norms and cultural ethos of the country. This point can be taken only if we define the norms and ethos of the country based on those of the majority religion (and its marriage act) of India.

Furthermore, norms and ethos are not monolithic terms, adherence or non-adherence to which can compartmentalise human behaviour into agreeable or non-agreeable.

In fact, they are made, perpetuated and changed in a spectrum with varying needs of the different sections of the society. If social mores form the basis of laws, new laws play a prominent role in shaping cultural practices.

‘Who Will Be the Woman?’

The opposing argument to the petition also mentions that same-sex marriage will lead to confusion in the implementation of existing laws, for example, “who will be the woman” in the case of Protection of Women from Domestic Violence Act, 2005.

Citing logistical issues as an impediment in taking a progressive step is a rather superficial treatment of a human rights issue. And when it is asked “who will be the woman”, it suggests that transgenders are totally out of the vision when envisaging such laws.

Should we then safely assume that trans and other genders never face abuse or domestic violence?

However, if we concede the Solicitor General’s point, just as the law against sexual harassment coexists with the decriminalisation of Section 377 – because consent of an individual forms the basis of this law and not one’s sexual orientation – similarly the same-sex marriage law can coexist with the Protection of Women from Domestic Violence Act and other laws to avoid cumbersomeness so to speak because as mentioned above, it is the gender that one identifies with which is at the heart of this law and not the sex one is born with.

Reflection of India’s Conservative Politics

Adding to that, amendments to the language of the existing laws, which are largely worded in heteronormative lexicon, is another need of the hour to take care of the problematic situation as put forth by the Centre. And the human rights laws of the country need to be expanded and made more inclusive.

The Solicitor General’s rebuttal to the petition is nothing but a reflection of its conservative politics as per which this politics wants to stay on the border of being progressive with decriminalising homosexuality, thanks to social pressure and provocation, but wants to be at an arm’s length when it comes to solemnising this decriminalisation.

Marriage, that gives popular legitimacy to relationships in our society, and especially in a society like India, is an important area of ideological intervention for the government as well as its pressure groups, tampering with which would mean navigating through tricky terrain.

The petition hints towards a systemic change on an ideological level for the creation of a better and more wholesome society and formulation of laws to that effect is a stepping stone towards this creation.

Our lawmakers and representatives need to break out of gender binaries and look much beyond the logistical as well as executional issues associated with taking a courageous and much needed leap.

(Malvika Sharad is the editorial assistant with Economic & Political Weekly, Mumbai and has previously worked as the media and documentation associate with Right to Education Forum, New Delhi. She tweets at @malvika_sharad. This is an opinion piece and the views expressed are the author's own. The Quint neither endorses nor is responsible for them.)