Will India offer a rainbow of hope for the LGBTQ+?

The Human Rights Campaign Foundation tracks developments in the legal recognition of same-sex marriage across the world. The momentum for this cause has been building up for many decades now, with 32 countries having already legalised same-sex marriage (the first country to do so was the Netherlands in 2000). Two countries that made history this year by legalising same-sex marriage were Slovenia and Cuba. Will India take a cue?

On October 4, 2022, the Slovenian parliament passed an amendment allowing same-sex couples to marry and adopt after Slovenia’s top court ruled 6-3 in July 2022 that Slovenia’s laws allowing only opposite-sex couples to get married and adopt children were a violation of the Constitutional prohibition against discrimination. This decision came just weeks after a liberal government took national office, replacing the earlier one led by right-wing conservatives. The Minister of Labour, Family and Social Affairs, Luka Mesec later released a public statement welcoming the move, highlighting how his government had held a pro-marriage equality stance over the past eight years. In fact, in 2015, Slovenia held a public referendum to equalise marriage laws in the country. However, in a landslide loss, only 36.5 per cent of voters voted in favour of marriage equality, while a whopping 63.5 per cent voted against it. Thus, this new verdict by Slovenia’s top court is indeed remarkable. Slovenia, which emerged from the break-up of Yugoslavia, is the first former communist country to endorse this reform in Central Europe, as most of its neighbours still do not allow civil unions or same-sex marriages. If Slovenia is the first post-communist country to make LGBTQ+ history in 2022, then Cuba is the first communist country to do the same, that too by public referendum (a process that failed in Slovenia).

In September 2022, Cubans overwhelmingly accepted a new “family law” that extended marriage rights to same-sex couples as well as expanded rights for children and grandparents. The code, which was almost 100 pages long and contained more than 400 articles went through more than two dozen drafts and hours of debate at community-level meetings. An overwhelming percentage of voters (66.9 per cent) voted in favour of the new code, as compared to 33.1 per cent who voted against — an uncannily opposite trend to Slovenia’s 2015 referendum on marriage equality. Once all the votes were cast in Cuba and the results were in, President Miguel Díaz-Canel, who supported the law, celebrated the results, by, tweeting “Love is now the law.”

It should be noted that both Cuba and Slovenia have an ugly history of homophobia as well as a promising story of gradual progress and acceptance. As social work scholar, Bogdan Lešnik points out, in the Federal Socialist Republic of Yugoslavia, “unnatural fornication between persons of male sex” was a criminal act. In 1977, the new Slovenian penal code dropped the offence and the age of consent was set uniformly to 14 years of age. During the 1970s, the liberal group of Yugoslavia began to gain prominence and eventually, the new Yugoslav constitution in 1974 decentralised, amongst other things, the regulation of sexuality. Since the 1990s, sexual orientation was included in the anti-discrimination clause of the penal code as well as of the employment act, and the collection of data on “sexual behaviour” was prohibited by the act of protection of personal data. However, when the new state constitution was written in 1991, sexual orientation was not included in its anti-discrimination clause. Calls to legalise same-sex marriage in Slovenia first appeared in 1989, but no legislative action was taken until 1995. Finally, in 2005, Slovenia recognised “same-sex partnerships” which granted same-sex “partners” rights that focused primarily on alimony and property matters, not medical care, adoption, insurance, inheritance, and a bouquet of other rights that opposite-sex married couples enjoyed.

As for Cuba, International Development scholar Evie Brown highlights the state’s controversial relationship with sexuality rights. The early Revolution period of the 1960s was marked by extreme homophobic attitudes. Male homosexuals, along with dissidents, intellectual elites, and religious people, were sent to agricultural camps for hard labour, ‘rehabilitation’, and communist instruction — for the state viewed them as “counter-revolutionary”. However, social attitudes began changing in the 1970s with the legalisation of homosexuality in 1979 an amendment was made in the Penal Code that removed prison sentences for homosexual acts.

And in 2010, Fidel Castro apologised for the bad treatment of homosexuals during his regime. Currently, major advocacy on the advancement of LGBTQ+ rights is undertaken by the Centro Nacional de Educación Sexual (CENESEX) — an organisation that works on sexual education, including LGBTQ+ rights, violence against women, sexual health, adolescence, and other issues. CENSEX’s director is Mariela Castro Espín, daughter of former president Raúl Castro.

Her personal image alone carries gravitas and has aided in the rapid advancement of LGBTQ+ rights in Cuba. Writing for Cuban Studies, Mariela Castro Espín herself discusses in detail CENESEX’s work on sex education and stressed the value of doing so “with the political, social and economic support of the state” to promote “a higher awareness of the problems demanding a greater depth in scientific knowledge and an improvement of one’s actions”. Clearly, these efforts have paid off.

Will India be the country to watch out for in 2023?

Will 2023 be the year of possibilities for the LGBTQ+ community in India? The Human Rights Campaign Foundation has listed India as a country “to watch out for” the legalisation of marriage equality. But while the Delhi High Court hears multiple petitions seeking to recognise this right, stiff opposition exists from the current ruling national government, the BJP. In responding to these petitions, the government has stated that it views marriage as a “bond between a biological man and a biological woman” a statement that itself contravenes a 2019 Madras High Court verdict (Arunkumar vs The Inspector General of Registration) which affirmed the marriage of a cis-male and a transwoman under the Hindu Marriage Act, 1995. Furthermore, the government went on to argue that even though same-sex conduct was decriminalised in the private sphere (in Navtej Singh Johar vs Union of India, 2018), this did not automatically entitle same-sex couples the “public right” to marry.

By looking at the Navtej verdict through such a narrow lens, the government is also grossly overlooking a slew of previous landmark Supreme Court cases on marriage that affirmed an adult’s individual choice to marry whoever they wanted to, for example, in Lata Singh vs State of UP (2006), India’s top court held that: “This is a free and democratic country, and once a person becomes a major, he or she can marry whosoever he/she likes” (in the context of inter-caste marriage). In Shafin Jahan vs K M Asokan (2018) (also known as the “Hadiya case”), the same court held that “Neither the state nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters. They form the essence of personal liberty under the Constitution” (in the context of inter-religious marriage). Interestingly, the same judge who wrote affirming opinions in both cases is the new Chief Justice of India, Justice DY Chandrachud, someone who not only has a history of supporting LGBTQ+ rights, but also privacy rights, rights for people with disabilities, and abortion rights. The recent rollback of abortion rights by an ultra-conservative US Supreme Court in Dobbs vs Jackson Women’s Health Organisation (2022), despite the presence of a Democratic President, shows just how powerful courts can be in shaping people’s personal lives and experiences in spite of government opposition. But India seems to be on the opposite side of the playing field — with an anti-gay government in power and a purported pro-gay Supreme Court. Public opinion on homosexuality remains low in India so a referendum-style vote to legalise same-sex marriage would most likely fail, and what this also means is that there is a lot of scope for social awareness — lessons that India should learn from Cuba.

At the moment it seems as though the progressive realisation of rights for the Indian LGBTQ+ community can either come from the Courts or by a change in the national government in the next general election — which is in 2024. What path will India take? Only time will tell.

(The author is a Programme & Communications Manager at the Vidhi Centre for Legal Policy and Nyaaya and can be reached at sahgalkanav@gmail.com)

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