“We will not stop fighting the good fight”: Grace Banu

(As told to Saranya Chakrapani)

“In May 2018 Ishan, a transman, then 33 years old, made headlines after he married Surya, a 31-year-old transwoman in Thiruvananthapuram, Kerala, under the Special Marriage Act (SMA).

"Four months later on September 6, 2018, a five-judge Supreme Court bench struck down Section 377, which criminalised homosexual activity.

"The judicial body called it an ‘anachronistic colonial law’ that violated fundamental rights to equality, freedom of expression, life and privacy. For many of us, this came as a pioneering step towards the protection and preservation of the fundamental rights of the LGBTQIA+ community.

"That year, we felt like a significant shift had occurred in our historic fight for dignified coexistence in society.

"In 2019, the Madurai bench of the Madras High Court solemnised the marriage between Arun Kumar and Srija, a transwoman, under the Hindu Marriage Act. In a nuanced judgment, Justice Swaminathan quoted previous Supreme Court rulings to state, “one needs not only physical vision in the eye but also love in the heart,” before deeming their union valid.

“It must be noted that four years later, the couple still awaits registration authorities to complete the formalities that make them legally married. This is the kind and extent of systemic exclusion that we as a community have always intimately known and lived with.

"But coming back to precedents, as recently as April, the Chief Justice, along with other justices, stated - while hearing petitions seeking legal sanction to same-sex marriages - that the notion of ‘man’ and ‘woman’ was not an absolute based on genitals.

"To us as a community, these have been important milestones reflecting what we believe had been a sensitive and progressive judiciary that instinctively saw merit in upholding the rights of gender minorities.

"It is the judicial reasoning that brought all these big changes to fruition that was precipitously challenged by the Supreme Court’s judgement on October 17, when it refused to give legal sanction to same-sex marriages. The grounds on which this judgement was passed, struggle to hold water.

"In their judgements, Justices Chandrachud and Sanjay Kishan Kaul recognised the right to form a civil union, but justices Ravindra Bhat, Hima Kohli and P S Narasimha ruled that since there is no unqualified right to marriage under the Constitution, it cannot be recognised as a fundamental right.

"The five-member bench however declared that queer couples should be able to cohabit without any threats of violence, coercion or interference. But at a juncture where we are debating ways to build a level playing field for the LGBTQIA+ people in Indian society, it is critical to acknowledge that we, as a community, have never stopped fighting for our most fundamental rights - from early education to housing, employment and social security, and most notably, safety and inclusion.

"For many queer persons from lower socio-economic homes who are abandoned by their biological families, schooling is interrupted, personal safety is violated and financial autonomy is never found - all this while they buckle under the mental trauma of evolving through their own gender dysphoria, along with battling the queer and transphobia in their communities.

"Given that these fundamental rights are still a distant dream, cohabiting with safety and acceptance in a rural or urban setting is a far cry. All these challenges ensure that most sections of the LGBTQIA+ people in the country cannot lead lives of full potential and purpose.

"Even as the Supreme Court has held that the self determination of one's gender is at the core of fundamental rights to dignity, freedom and personal autonomy guaranteed under Article 21 of the Constitution, the restricting nature of the SMA, which recognises marriage only between a ‘man’ and a ‘woman’, disempowers us from availing the “the bouquet of entitlements” as pointed out by the CJI (such as adoption, medical insurance, pensions, and disability and social security benefits) that heterosexual couples enjoy.

"Self-determination isn’t just a means to make bureaucratic procedures for our community easier; instead, it is key to us gaining the agency to make autonomous decisions for ourselves. The Supreme Court’s judgement on same-sex marriages renders this right toothless.

"This court cannot either strike down the constitutional validity of SMA or read words into the SMA because of its institutional limitations” - the bench had said in its latest judgement. While it has passed the buck to the Parliament to enact laws that recognise queer marriages or not, we must remember that the Supreme Court has in the past taken the responsibility to course correct what the legislature hasn’t.

"One of the greatest examples of this is how the it laid down the Vishakha Guidelines preventing the sexual harassment of women at the workplace well before the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) or PoSh Act was introduced in 2013.

"In 2018, the Supreme Court once again went against the provision in the state legislation that restricted the entry of women of menstruating age into the Sabarimala temple. It declared this possible on the grounds that the ban violated the fundamental right of freedom of religion as per Article 25 of the Constitution.

"Despite being well aware of the state of gender minorities in the country, why couldn’t an exception be made by the Supreme Court in the case of same-sex marriages too?

"My heart and my rebellion remain strong for those members of the queer community who are born into generationally oppressed castes and communities, and for whom a legal validation to marriage would act as an unparalleled shield against powerful social and cultural hierarchies that subject them to dehumanisation at every level - from their homes to educational institutions, workplaces, communities, and the larger society. This holds truer for those members of the community who live in rural areas.

"Our hopes have been shattered but as with any oppressed group that has compensated for judicial oversight, reclaimed its place in society over decades and fought its way to victory, we too shall not stop fighting the good fight."