Will India offer a rainbow of hope for LGBTQ+?
The Human Rights Campaign Foundation monitors developments in the legal recognition of same-sex marriage around the world. Momentum for this cause has been building for decades, with 32 countries already legalizing same-sex marriage (the first country to do so was the Netherlands in 2000). The two countries that made history this year by legalizing same-sex marriages are Slovenia and Cuba. Will India follow suit?
On October 4, 2022, the Slovenian Parliament adopted an amendment that allows same-sex couples to marry and adopt, after the Supreme Court of Slovenia ruled by 6 to 3 in July 2022 that Slovenian laws that only allow couples to marry and adopt children are contrary to gender, violation. constitutional prohibitions on discrimination. The decision comes just weeks after a Liberal government took office, replacing the previous one led by right-wing Conservatives. The Minister of Labour, Family and Social Affairs, Luka Mesec, later issued a public statement in which he welcomed the move and emphasized that his government had been defending marriage equality for the past eight years. In fact, in 2015, Slovenia held a public referendum to equalize the legal legislation in the country. However, in a landslide defeat, only 36.5 percent of voters voted in favor of marriage equality, while a whopping 63.5 percent voted against it. Thus, the new judgment of the Slovenian Supreme Court is truly exceptional. Slovenia, which emerged after the breakup of Yugoslavia, is the first ex-communist country to support this reform in Central Europe, as most of its neighbors still do not allow civil unions or same-sex marriage. If Slovenia is the first post-communist country to make LGBTQ+ history in 2022, then Cuba is the first communist country to do so, even with a public referendum (a process that failed in Slovenia).
In September 2022, Cubans overwhelmingly passed a new “family law” that extended legal rights to same-sex couples and expanded rights for children and grandparents. The code, which was nearly 100 pages long and contained more than 400 articles, went through more than two dozen drafts and hours of discussion at community level meetings. A sizable percentage of voters (66.9 percent) voted in favor of the new code, compared to 33.1 percent who voted against it—a strikingly opposite trend to Slovenia’s marriage equality referendum in 2015. When they were cast in Cuba all the votes and the results announced, 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 both an ugly history of homophobia and a promising story of gradual progress and acceptance. As the social worker Bogdan Lešnik points out, in the Federal Socialist Republic of Yugoslavia “unnatural fornication between persons of the male sex” was a criminal act. In 1977, the new Slovenian Criminal Code abolished this crime and uniformly set the age of consent at 14. In the 1970s, the liberal group of Yugoslavia began to gain in importance, and finally the new Yugoslav constitution of 1974 decentralized the regulation of sexuality, among other things. Since the 1990s, sexual orientation has been included in the anti-discrimination clause of the Criminal Code and the Employment Act, and the collection of data on “sexual behavior” has been prohibited by the Personal Data Protection Act. However, when the new state constitution was written in 1991, sexual orientation was not included in the anti-discrimination clause. Calls for the legalization of same-sex marriage in Slovenia first appeared in 1989, but legislation was not passed until 1995. Finally, in 2005, Slovenia recognized “same-sex partnership communities”, which granted same-sex “partners” rights that focused mainly on on alimony. and property matters, but not medical care, adoption, insurance, inheritance and a host of other rights enjoyed by same-sex married couples.
As for Cuba, international development expert Evie Brown highlights the country’s controversial attitude towards gender rights. The period of the early revolution in 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 labor, ‘rehabilitation’ and communist instruction — the state treated them as “counter-revolutionaries”. However, social attitudes began to change in the 1970s with the legalization of homosexuality in 1979, when the penal code was amended to abolish prison sentences for homosexual acts.
And in 2010, Fidel Castro apologized for the mistreatment of homosexuals during his regime. Currently, major advocacy for the advancement of LGBTQ+ rights is done by the Centro Nacional de Educación Sexual (CENESEX), an organization that works on sexuality education, including LGBTQ+ rights, violence against women, sexual health, youth, and other issues. The director of CENSEX is Mariela Castro Espín, daughter of former president Raúl Castro.
Her personal image alone is important and has contributed to the rapid progress of LGBTQ+ rights in Cuba. Mariela Castro Espín herself, writing for Cuban Studies, discusses in detail the work of CENESEX in the field of sexuality education and emphasizes the value of doing this “with the political, social and economic support of the State” in order to promote “a higher awareness of problems that require greater depth”. in scientific knowledge and improvement of one’s actions”. Clearly, these efforts have paid off.
Will India be the country to watch in 2023?
Will 2023 be the year of opportunity for the LGBTQ+ community in India? The Human Rights Campaign Foundation has listed India as one of the countries to “watch” for legalizing marriage equality. But while the Delhi High Court is hearing a number of petitions seeking to recognize this right, the current ruling national government, the BJP, is strongly opposed. In response to these petitions, the government has stated that it views marriage as a “bond between a biological male and a biological female”, a statement that itself contradicts a 2019 Madras High Court judgment (Arunkumar v Inspector General for registration), which validated the marriage of a cis-man and a trans-woman under the Hindu Marriage Act of 1995. Furthermore, the government argued that although same-sex behavior is decriminalized in the private sphere (in Navtej Singh Johar v. Union of India, 2018), , this did not automatically grant same-sex couples a “public right” to marry.
By viewing the Navtej judgment through such a narrow lens, the government also sorely overlooks a host of previous landmark Supreme Court cases on marriage that have upheld the individual choice of an adult to marry whomever he chooses, such as Lata Singh v. State of UP ( 2006), the Supreme Court of India ruled that: “This is a free and democratic country and once a person becomes a major, he can marry whomever he wants” (in the context of inter-caste marriages). In Shafin Jahan v. KM Asokan (2018) (also known as the “Hadiya case”), the same court held that “neither the state nor the law can dictate the choice of partners or limit the free capacity of each person to decide about them. matters. They form the essence of personal freedom under the Constitution” (in the context of interfaith marriage). Interestingly, the same judge who wrote the affirmative opinions in both cases, India’s new Chief Justice, Justice DY Chandrachud, is someone who not only supports LGBTQ+ rights, but also privacy rights, disability rights, and abortion rights. . The recent reversal of abortion rights by the ultraconservative US Supreme Court in Dobbs v. Jackson Women’s Health Organization (2022), despite the presence of a Democratic president, shows how powerful the courts can be in shaping people’s personal lives and experiences despite government opposition. But India seems to be on the opposite side of the playing field – with an anti-gay government in power and a supposedly pro-gay Supreme Court. Public opinion on homosexuality remains low in India, so a referendum vote to legalize same-sex marriage would most likely fail, but it also means there is plenty of room for social awareness – lessons India should learn from Cuba.
At the moment, it seems as if the gradual realization of rights for India’s LGBTQ+ community may come through the courts or through a change in the national government in the next general election – which will be in 2024. What path will India take? Only time will tell.
(The author is Program and Communications Manager at Vidhi Center for Legal Policy and Nyaaya and can be reached at sahgalkanav@gmail.com)