May 3, 2023

To:
The Government of Tamil Nadu

Subject: MARRIAGE EQUALITY Report Summarising the Needs and Demands from the LGBTQIA+ Community in Tamil Nadu

Given the pendency of the marriage equality petitions before the Hon’ble Supreme Court of India, a meeting was conducted in Chennai on April 23, 2023, in which members of LGBTQIA+ groups such as Kattiyakkari, Nirangal Charitable Trust, Orinam, Queerbatore, SAATHII, Sahodaran, Tamil Nadu LGBTIQ Movement. Trans Community Kitchen (Chennai), Thozhi, and Trans Rights Now; and individual activists, lawyers, mental health professionals and academics were present. These groups and individuals are part of Tamil Nadu Rainbow Coalition, an informal network first established as the Chennai Rainbow Coalition in 2009 and subsequently expanded across the state.

An open discussion was had, and the following points are now being submitted to the Government of Tamil Nadu for its consideration, in the event states have an opportunity to make submissions before the Hon’ble Supreme Court.

• Introduction
• Marriage and its Benefits – Why does the LGBTQIA+ community require the social protection of marriage
• Can the existing personal laws be modified to include the LGBTQIA+ community?
• Notice Period Requirement in the Special Marriage Act
• A Step Forward in the the Future of Personal Laws – The Right to Chosen Family

1. INTRODUCTION:

1.1 The State of Tamil Nadu has granted legal recognition to the transgender community and has constituted a welfare board since 2008, six years prior the Supreme Court’s verdict in NALSA vs Union of India. In more recent times, the marriage between a transwoman and a man was held to be valid under the Hindu Marriage Act by the Hon’ble Madras High Court in Arun Kumar and others vs Inspector General of Registration and others. In the case of S. Sushma vs Commissioner of Police, the Hon’ble Madras High Court has examined the struggles faced by the members of the LGBTQIA+ community in detail, and has issued directions to various government authorities in order to ensure their protection and safety.

1.2 As a state that has historically recognised and supported members of the queer community both through policy reform, judicial pronouncements, and government directives and as a state that has brought about an amendment to the Hindu Marriage Act in the year 1968 to include suyamariyathai or seerthiruththa thirumanam (self-respect marriages) in the ambit of a Hindu marriage, Tamil Nadu’s position in this litigation should unequivocally be in support of marriage equality, and the rights of LGBTQIA+ individuals to be able to solemnise marriages irrespective of gender markers (M, F, T).

1.3 In the present batch of petitions before the Hon’ble Supreme Court of India (also referred to as “Marriage Equality Petitions” going forward) Tamil Nadu should support marriages both under the Special Marriage Act as well as under religious personal laws.

2. MARRIAGE AND ITS BENEFITS

2.1 Marriage is the most socially accepted social union between two adults. This has also been discussed in detail by the Petitioners in the Marriage Equality Petitions.

2.2 The State of Tamil Nadu also recognises this social protection given by marriage, and thus has marriage assistance schemes to assist daughters of poor parents, orphan girls, widows who remarry, widows daughter’s marriage and inter-caste married couples through the Dr. Dharmambal Ammaiyar Ninaivu Widow Remarriage Assistance Scheme, E.V.R. Maniammaiyar Ninaivu Marriage Assistance Scheme For Daughters Of Poor Widows, Annai Therasa Ninaivu Marriage Assistance Scheme For Orphan Girls, Dr. Muthulakshmi Reddy Ninaivu Inter-Caste Marriage Assistance Scheme.

2.3 An argument has been advanced by the Union Government that marriage is not necessary or important for the members of the LGBTQIA+ community, and that their fundamental rights are not denied because they are not able to get married. Restrictions within the existing matrimonial law framework were highlighted, and the submission of the Union Government can be condensed to – “They can exist in this country, but they cannot get married in the current legal framework, and this inability to get married is not a violation of their fundamental right”. This is an incorrect understanding of the law, and the requirements of this community. For a persecuted group who are more often than not asked to leave or are thrown out of their birth families and familial homes owing to the stigma associated with their existence, LGBTQIA+ individuals struggle to find their footing in society. They choose their families and they build their community. Living in as domestic partners does not stand on the same footing of marriage today. In the Hon’ble Supreme Court judgement of D.Velusamy vs D.Patchaiammal, it was held that even the protection under the Protection of Women from Domestic Violence Act, 2005 was only available to couples who are in a live-in-relationship if their domestic relationship “is in the nature of marriage”.

2.4 Thus, for the Union Government to gate-keep this institution, which by its very laws and policies gives rise to various benefits, is tantamount to deliberately depriving the LGBTQIA+ community- an already vulnerable portion of Indian society of the rights and benefits available to heterosexual people.

2.5 The importance of marriage as a social institution that gives rise to benefits, responsibilities, duties, and oversight by the status cannot be replicated through any other form of living arrangement or domestic partnership both in the Indian legal framework as well as the Indian cultural context. A short and non-exhaustive list outlining the protection offered by marriage includes:

Protection offered through Marital Status

• Unless both or one of the individuals to the marriage want to dissolve their union, nobody else can do it. This aspect is invaluable to members of a community who are frequently deliberately separated by birth parents in order to prevent their relationship from proceeding further.
• It is easier to find accommodation in rental houses as a married couple, than it is as unmarried people in India right now. This is extremely useful to members of the LGBTQIA+ community who are more often than not asked to leave their birth families, unable to find permanent jobs as their education certificates and identity proof is not immediately available to them, and they have to move from one place to another in search of employment
• The benefits of opening a joint bank account, purchasing life insurance with nominees as a spouse will now extend to the LGBTQIA+ community.
• The ability to take health related decisions and be the nominee of their partner in the case of emergencies will now extend to the LGBTQIA+ community. Hospitals and health care professionals all require either blood relatives or spouses to sign off on life-saving treatments and surgeries, and at present, this crucial benefit is not available to members of the LGBTQIA+ community, many of whose members are separated and cut-off from their birth families who refuse to accept their choices and a community where members are also at risk of sexually transmitted illnesses.
• In addition to providing security during the life-time of a couple, marriage also grants benefits that can make it easier to navigate through the death of a spouse such as compassionate appointment, the right to receive mortal remains, and makes it easier to execute a will or obtain a legal heir certificate to carry out formalities after the spouse’s death.

3. CAN THE EXISTING PERSONAL LAWS BE MODIFIED TO INCLUDE THE LGBTQIA+ COMMUNITY?

3.1 The Hindu Marriage Act uses the terms “bride” and “groom”. The Special Marriage Act uses the terms “persons”, “parties”, and in the declaration uses the terms “husband and wife”. The Christian Marriage Act uses the terms “persons”. Removing the gender barrier in terminology can happen if the words bride, groom, husband, and wife are replaced by the words persons and spouses.

3.2 The list of prohibited relationships can be merged and make way for one comprehensive list so that the concerns of the legislature about inter-familial marriages are met.

3.3 The legal age to marry can be modified to become 18 – the age of majority. This is particularly important for LGBTQIA+ persons as parents who identify that their children are gender-nonconforming at an early age try to get their children married off as soon as possible.

4. NOTICE PERIOD REQUIREMENT IN THE SPECIAL MARRIAGE ACT

4.1 The existing framework in the Special Marriage Act involves a notice period requirement that is unconstitutional. Following the notice intending marriage, details of the people intending to marry will be publicly exhibited in their respective jurisdictions. This can have devastating consequences for LGBTQIA+ individuals who have fled from their birth families, and risk confinement, institutionalisation, forced conversions, and even honour killing. The 30 day objection period is also a cause for concern, as the word objection is not defined, and anybody can object. The notice period will place already vulnerable and persecuted individuals at grave risk, and will cause many hurdles in implementing marriage equality among members of the LGBTQIA+ community.

4.2 Thus, the Tamil Nadu government should support declaring Section 5 and 6 of the Special Marriage Act as unconstitutional. Any rights granted to the members of the LGBTQIA+ community with respect to marriage under the Special Marriage Act regime cannot be implemented when the notice period clause is still in force.

5. A STEP FORWARD IN THE FUTURE OF PERSONAL LAWS – THE RIGHT TO CHOSEN FAMILY

5.1 While the right of LGBTQIA+ individuals to marry can definitely improve the quality of life of queer individuals and is the right step forward, the future of the community can only be safeguarded when they have the right to choose their families. Unlike cis-heterosexual relations where familial bonds are strong and regulate social conduct and life, many members of the LGBTQIA+ community are forced to leave or are thrown out of their birth families and their native villages/ community.

5.2 Legal recognition to chosen families, by granting ration cards, identity proof in the same address, protection to couples forced to flee natal families, rights to parenting and custody, inheritance, rights of chosen family members to make medical decisions, insurance, and extending government incentives and schemes that are given to other families can greatly benefit the community.

5.3 In addition to this, any change in law or policy would be incomplete without adequate sensitivity training being given to law enforcement agencies and other departments who come in contact with LGBTQIA+ individuals when they are at their most vulnerable. Hence, sensitisation programs to police and prison authorities, district and state legal service authorities, judiciary as per the order of the Madras High Court dated 07-06-2021 in Sushma and another vs Commisioner of Police and others is the need of the hour. The State of Tamil Nadu can rest assured that the signatories to this note, and community leaders at the grassroots level will render any assistance required to facilitate these programs.

Thanking you,

Representatives of
Kattiyakkari, Nirangal Charitable Trust, Orinam, SAATHII, Sahodaran, Tamil Nadu LGBTIQ Movement. Thozhi, and Trans Rights Now; and individual activists

தமிழுக்கு இங்கே கிளிக் செய்யவும்

Image credits: Gokul

A Report on the findings from a closed door public hearing on April 1, 2023
PDF report is available in
English | Hindi | Marathi | Bengali

Organised by PUCL and National Network of LBI women and Transpersons
17th April, 2023 The Supreme Court hearings in front of the five-judge Constitution bench headed by the Chief Justice of India (CJI) DY Chandrachud on Marriage Equality start tomorrow. These proceedings have generated a lot of interest all over the country and the world, but even more so has set many queer and trans hearts racing in multiple ways, and not similarly. It is with this precise moment in mind that PUCL and the National Network of LBI women and Transpersons are releasing this report to the public today.

This report is not about Marriage Equality, though the right to marry is one of the recommendations made by the panelists. But this report is very much about the lives of the queer and trans persons whose rights will be debated not just in the Supreme Court, but all around us, in the media, on the streets, in houses and where you have. The voice of the State has already become clear in the invocation of sanskar, sacrament, and such like in the defence of the cis and heterosexual marriage and family. There is a slew of voices all around defending the existing structures of families and opposing the right of not just queer and trans persons, but also inter-religious and inter-caste heterosexual couples to live as they desire.

This moment therefore, is as much about families, and not just about marriage. While the focus is on the demand for marriage equality for queer and trans folx, the legitimacy given to assigned families is as much under question. Chosen families and intimacies cannot be thought of without also looking at the reality of what assigned families do to their queer and trans children.
This report is about the families that are assigned to us and those that often are the biggest road blocks to being able to live the way we want to. The families that are supposed to be spaces of nurture, care and support, turn against their own children (often at very young ages), treat them with utter disregard and violence, and force them to conform to socially accepted ideas of what is “normal” without any regard to the individual’s dignity or personhood. Stigma and violence run deep within the space of these families that are assigned to us at birth (or adoption).

A closed-door Jan Sunwai or Public Hearing on Familial Violence on Queer Trans People was organised by the People’s Union for Civil Liberties (PUCL), along with the National Network of LBI (Lesbian, Bisexual, Intersex) Women and Trans Persons (The Network) to bring these concerns in to focus was held on April 1, 2023 before an eminent panel of judges, lawyers, academics and activists. 31 queer and trans persons testified in front of the panel. The focus of the testimonies was on the relationship with the assigned (natal) families and the various struggles that the testifiers had undergone to be able to live their lives.

Today we bring to you this report, Apnon Ka Bahut Lagta Hai, with the findings and recommendations of the Panel which comprised of: Retd. Hon Justice Prabha Sridevan, Chennai; Asif Iqbal, Co-Founder, Dhanak, Delhi; Divya Taneja, Special Cell for Women and Children, Mumbai; Kavita Krishnan, Feminist Activist, Delhi; Manjula Pradeep, Anti-Caste Feminist Activist, Ahmedabad; Mihir Desai, Senior Counsel, Mumbai; Paromita Chakravarti, Feminist Academic, Kolkata; and Veena Gowda, Feminist Lawyer, Mumbai.

The community and civil society organisations included in the Network are: Nazariya: Queer Feminist Resource Group (Delhi), Sappho For Equality (Kolkata), Sahayatrika (Thrissur), Orinam (Chennai), Raahi (Bengaluru), QT Centre (Hyderabad), Hasrat-e-Zindagi Mamuli (Mumbai), Vikalp Women’s Group (Vadodara), SAATHII (pan-India), and unaffiliated individuals.

Click here for PDF report

IN THE MEDIA: ARTICLES ASSOCIATED WITH THE JAN SUNWAI REPORT, THE PRESS CONFERENCE, THE BORAH  PETITION AND ADV VRINDA GROVER’S INTERVENTION
(most recent first)

1. Saranya Chakrapani. Indelible mark on psyche: new report reveals violence LGBTQ community faces from families.
   YourStory. May 1, 2023.
   https://yourstory.com/socialstory/2023/05/new-report-reveals-familial-violence-on-queer-youth-community
2. Rituparna Borah. Marriage Equality: Family Means Everything, But So Does Chosen Family.
   The Quint. April 28, 2023
   https://www.thequint.com/gender/chosen-family-queer-and-trans-persons-life-marriage-equality
3. Article 14. Our Own Hurt Us the Most: Familial Violence in India
   Youtube. April 27, 2023.
   https://www.youtube.com/watch?v=tfr7lCbn10k
4. Namrata and Shreyashi. Marriage equality – petitions, pushback and politics.
   Varta. April 26, 2023
   https://vartagensex.org/2023/04/26/marriage-equality-petitions-pushback-and-politics/
5. Rajiv Shah. Queer, trans persons ‘testify’: Marital rape, forced marriage, threat of disinheritance>
   CounterView. April 26, 2023.
   https://www.counterview.net/2023/04/queer-trans-persons-testify-marital.html?m=1
6. Sayan Bhattacharya. Marriage equality: What good is symbolic recognition of one’s relationships sans rights?
   Down To Earth. April 25, 2023.
   https://www.downtoearth.org.in/blog/governance/marriage-equality-what-good-is-symbolic-recognition-of-one-s-relationships-sans-rights–88940
7. Namita Bhandare. Marriage equality: How the case impacts us all.. 
   Hindustan Times.  April 23, 2023.
   https://www.hindustantimes.com/ht-newsletter/htmindthegap23042023.html
8. Vivek Divan. Overlooked in the marriage equality conversation: The marginalised among LGBTQI community. Indian Express : April 20, 2023
   https://indianexpress.com/article/opinion/columns/overlooked-in-the-marriage-equality-conversation-the-marginalised-among-lgbtqi-community-8566506/
   
9. Pragya Singh. ‘Family Must Go Beyond Blood and Marriage’—Petitioner in Marriage Equality Case. NewsClick. April 20, 2023
   https://www.newsclick.in/family-must-go-beyond-blood-and-marriage-petitioner-marriage-equality-case
10. Chayanika Shah. In Marriage Equality Case, Queer and Trans Persons Assert Right to Define Family
    NewsClick. Apr 20, 2023
    https://www.newsclick.in/marriage-equality-case-queer-and-trans-persons-assert-right-define-family
11. Sabrang India. Our own hurt us the most: Familial violence in the lives of queer & Trans persons within marriage equality debates  Sabrang India. April 18, 2023.
    https://www.newsclick.in/marriage-equality-case-queer-and-trans-persons-assert-right-define-family
12. Mihir Rajamane. Petition Explained: Marriage Equality under the Special Marriage Act and Freedom from Violence by Rituparna Borah and others March 31, 2023.
    https://mihirxr.wordpress.com/2023/03/31/petition-explained-marriage-equality-under-the-special-marriage-act-by-rituparna-borah-and-others/
13. Anmol Arora. The petition you need to know about from the same-sex marriage hearings that start today LiveMint. April 18, 2023.
    https://lifestyle.livemint.com/relationships/it-s-complicated/the-petition-you-need-to-know-about-from-the-same-sex-marriage-hearings-that-start-today-111681805877468.html
14. Shreyashi Ray.Beyond Marriage Equality: Chosen families and the right to live our lives as we are.
    Vidhi Centre for Legal Policy. April 18, 2023.
    https://vidhilegalpolicy.in/blog/beyond-marriage-equality/
15. Poushali Basak. The Fight for Saving Queer-Trans Lives Is More Than Just Securing Equal Marriage Rights. The Wire. April 12, 2023.
    https://thewire.in/lgbtqia/queer-trans-deaths-equal-same-sex-marriage
16. TheNewsMinute.Marriage equality alone will not free queer persons from violent families: Civil society orgs. The News Minute. April 3, 2023.
    https://www.thenewsminute.com/article/marriage-equality-alone-will-not-free-queer-persons-violent-families-civil-society-orgs

In 2018, the Supreme Court of India decriminalized consensual and private same-sex relationships in Navtej Singh Johar v. Union of India- – a landmark judgment that overturned the Supreme Court’s own ruling in Suresh Kumar Koushal v. Naz Foundation which upheld the now notorious Section 377 of the Indian Penal Code. Even though the Navtej judgment was momentous, it was merely the first step in the long fight for LGBTQIA+ equality- a step that should never have taken the Indian courts so long in the first place.

But even after Navtej, the journey for LGBTQIA+ acceptance has not been easy in India, especially for those living in small towns and rural areas. A lack of LGBTQIA+ friendly-spaces and radio silence on the issue of sexuality and gender identity has made it difficult for not only society to accept the LGBTQIA+ community, but also for LGBTQIA+ people to come to terms with their own identities. But in spite of these challenges, LGBTQIA+ activists across the country have continued to work tirelessly to change laws and mindsets alike. Back in 2017 (even before Navtej), Opposition party politician Dr. Shashi Tharoor tabled an anti-discrimination and Equality Bill in the Indian Lok Sabha that is comparable to the Biden Administration’s recently introduced Equality Act. However, unlike Biden, Tharoor wasn’t able to pass his Bill, ostensibly because of its radically transformative nature.

More recently, the BJP-led Central Government slammed efforts to legalize same-sex marriage in India by responding rather acerbically to three separate petitions seeking to secure these very same rights. The Government stated same-sex couples in India did not have the fundamental right to marriage because the Navtej judgment merely decriminalized ‘a particular human behavior’. Rather, the Government said, marriage in India should remain restricted to ‘biological men and biological women’.

The Government’s counter-affidavit also claimed that “Western ideas cannot be imported to the Indian context”; yet failed to prove how the idea of same-sex marriage was inherently ‘Western’. In fact, the terminologies of “western”, and “eastern” themselves are contested and require significant academic deconstruction. To merely claim that something is “western” or “eastern” is indeed a sign of intellectual laziness. The Government’s argument falls apart further when one considers the curious cases of two Asian, non-Western countries– Taiwan and Thailand. Taiwan not only legalized same-sex marriage back in 2019 but is now on track to legally recognize international same-sex marriages . Thailand is also considering expanding the scope of marriage to also include same-sex relationships. Moreover, rich historical and sociological evidence of the existence of same-sex marriage in India has been well-documented by scholar Ruth Vanita in her 2005 book Love’s Rite: Same-Sex Marriage in India and the West. This affirms that there is nothing quintessentially ‘western’ about same-sex marriage in India.

Two more of the Central Government’s arguments are grossly egregious. The first has to do with the Government’s labelling of sexual orientation as a “particular human behaviour” and the second is the Government’s idea of marriage as constitutive of a union between only ‘biological’ men and women. If we consider the first argument, we see that the Government’s line of reasoning is false because sexual orientation is not a behaviour, it is an integral aspect of one’s identity. Here is an excerpt from the Navtej judgment that drives this point home: “Sexual orientation is immutable, since it is an innate feature of one’s identity, and cannot be changed at will. The choice of LGBT persons to enter into intimate sexual relations with persons of the same sex is an exercise of their personal choice, and an expression of their autonomy and self-determination.” So, if one’s orientation is indeed intrinsic to one’s being and concomitantly, can’t be changed, then why should homosexuals be denied the same legal rights that their heterosexual counterparts enjoy- which includes the legal recognition of marriage? Ironically, arguments of ‘behaviour and choice’ are never made against heterosexuals because they constitute the majority in society, so much so that their sexual orientation is not only seen as the de facto ‘normal but also codified in multiple personal laws in the country that recognize various forms of opposite-sex unions. Yet, not a single law in India exists that recognizes LGBTQIA+ unions.

I wonder whether it is even morally justified for a country that prides itself (no pun intended) in the diversity and the multiplicity of its people, to deny a large section of these very same people equal rights?

The Government also claims that marriage can only be between a “biological man” and a “biological woman”, yet fails to define what a ‘biological woman’ is. In 2019, the Madras High Court ruled that the meaning of the word ‘bride’ in Section 5 of the Hindu Marriage Act “cannot have a static or immutable meaning”. Rather, it had to be expanded to include not just biological women, but also Transwomen, Transgender people, and intersex people. The Court further opined that the Constitution was a living document that needed to evolve with changing times in order to be relevant; furthermore, in Shafin Jahan v. Asikan K.M., (2018) it was already decided that “the right to marry a person of one’s choice is integral to Article 21 of the Constitution”. Why then, were these progressive arguments not made to grant equal rights to same-sex couples? Expanding the scope of marriage to same-sex couples does not take away anyone else’s rights. Rather, it makes for a more inclusive and diverse family unit. For a community that routinely experiences stigma, discrimination, and ostracization in Indian society, legalizing same-sex marriage would have been one way of rectifying historical wrongs. To argue that same-sex marriages could somehow cause “complete havoc with the delicate balance of personal laws in the country” (as the Government has also stated in its counter-affidavit) is gaslighting, plain and simple.

It isn’t surprising that valiant displays of compassion, courage, and love still threaten the small-minded and cold-hearted.

I loved my cousin brother Raghu*. I liked to think I was the one in the family he was closest to, the one he would confide in, seek advice from.

Well, not close enough, evidently.

One morning, three years ago, Raghu called me on the telephone. Without preliminaries, he announced to me that he loved men, not women, and hung up just as abruptly. This, just weeks after he had become father to a baby boy, and a year or so after his marriage.

Later that day, Raghu, all of 26, ended his life in the south Madras flat where he and his family lived.

I wish I could say I had suspected something like this was brewing when he made that call to me, the call that was to be our last conversation. I hadn’t.

Love and forgiveness. I wrestle with these each day. Through love, one can overlook others’ faults, however significant they may be. Through forgiveness, one seeks peace.

Raghu, I wish I could forgive you easily for ending your life, leaving your wife and infant son behind, casualties of the choices you made. Forgiving you remains a struggle, though I try. Questions race through my mind all the time. Why could you not have thought about your preferences beforehand, and avoided drawing her into your life? Did we, as a family, make it so difficult for you to admit your different orientation? Or, was it your desire to conform, to not hurt your parents, that drove you to consent for marriage in the first place? What of the hurt that engulfed everyone when you chose to depart?

Raghu, wherever you may be now, I still love you, my brother. Your difference did not matter to me then, nor does it now. I wish you happiness wherever you may be. And I continue to try to forgive.

To the readers of this note, I ask that you live and let live. If you have a sibling, child, friend or other loved one who has a different orientation, please do not let this difference come in the way of your love for them.

And if you are yourself differently oriented from the so-called mainstream sexuality, be strong in your convictions. Going against family expectations may cause some grief, but that is nothing compared to the devastation resulting from the choices that Raghu – and I fear there have been many like him through the ages – felt compelled to make.

*name changed

This piece is based on a note submitted by an Orinam reader, and is being posted on Sept 10, World Suicide Prevention Day. If you or someone you know is depressed or suicidal, please seek help. Some crisis support resources are here.