India Archives - Countering Backlash

Marriage equality in India: still miles to go

The queer community in India has been continuously fighting for social equality over the last few decades, given the colonial era laws like Section 377 that criminalised same sex relationships and the Criminal Tribes law that outlawed entire transgender community. Lesbian, gay, bisexual, transgender, intersex, queer and asexual (LGBTQ+) groups have struggled in police stations, courtrooms and on the streets to access their rights as equal citizens of the country, given the widespread stigma and discrimination faced daily, not only within homes and neighbourhoods, but within private and state institutions.

The long-standing fight for equal rights

After many challenges and setbacks, the LGBTQ+ community was able to gain a few significant victories. These include landmark cases such as National Legal Services Authority (NALSA) v. Union of India (2014) where the Court held that the state must recognize persons who fall outside the male-female binary as ‘third gender persons’ and that they are entitled to all constitutionally guaranteed rights. This was followed by Justice KS Puttaswamy v. Union of India (2017) in which the court held that the Constitution protects the right of a person to exercise their sexual orientation. The most recent judgement was Navtej Singh Johar and Ors v. Union of India (2018) in which the court held that Section 377 is unconstitutional to the extent that it criminalizes consensual sexual activities by the LGBTQ+ community. In 2019, the government of India enacted the Transgender Persons (protection of Rights) Act that recognized the right of transgender persons to have a self-perceived gender identity, prohibited discrimination and upheld their rights to residence, healthcare, education and employment.

However, there were still a lot of areas of struggle for the LGBTQ+ community in India, for example, in recognising relationship status for same sex couples. This was met with stiff opposition that led to coercive therapies, forced separation or forced marriages and state custody. In the absence of any legal recognition of long-term LGBTQ+ relationships, surviving partners were disregarded when it came to claiming insurance or employment-related benefits, nominee rights for healthcare or even share of property.

In 2022, several Writ Petitions seeking marriage equality for LGBTQ+ couples were submitted in the High Courts and the Supreme Court of India. The key asks were that LGBTQ+ persons should have a “Right to Marry” the person of their choosing, regardless of religion, gender and sexual orientation; and that the Special Marriage Act (1954), which enabled two people of different religions or castes to marry, should also include LGBTQ+ couples by using gender-neutral terminology; likewise, the petitions called for changing the Foreign Marriages Act (1969). In addition, the petitions also called for changes in the Child Adoption laws and regulations to enable LGBTQ+ couples to adopt children together; one petition asked for the right to ‘chosen families’. The final ask was for preventive and protective measures by district and police authorities to ensure the safety of adult consenting LGBTQ+ couples from the violence they faced from their birth families.

The Supreme Court ruling and its impact

The petitions were all clubbed together and came up before a five-judge Constitution Bench of the Supreme Court that gave its verdict on the 17th of October 2023 (Supriyo@Supriya Chakrabarty and Ors vs Union of India), denying the claim for marriage equality. Although all five judges accepted that any two people have the right to live and build a life together and that such relationships should be protected from violence and discrimination by the State, they failed to reach a consensus on giving queer couples the status of a legally recognised “civil union”. Three of the judges argued that any legal status to such unions can only be granted through enacted legislation. Disappointingly, all five judges unanimously found that there is no “fundamental right to marry” within the Constitutional framework, a position that is in contradiction with Article 16 of the Universal Declaration of Human Rights (1948) that recognizes the right to marry and start a family. The court refused to propose any change to the Special Marriage Act (1954) or Foreign Marriage Act (1969) to make the terms gender-neutral, on the grounds that this would be intruding into the legislative domain.

On the issue of transgender persons, all five judges agreed with the proposition that a transgender man has the right to marry a cisgender woman under current laws; similarly, a transgender woman has the right to marry a cisgender man. A transgender man and a transgender woman can also marry. Intersex persons who identify as a man or a woman and seek to enter into a heterosexual marriage would also have a right to marry.

The minority opinion said the LGBTQ+ community has a fundamental right to form relationships and that the state was obligated to recognise and grant legal status to such unions, so that same-sex couples could avail the material benefits provided under the law. The right to choose a partner was the most important life decision. This right goes to the root of the right to life and liberty guaranteed under Article 21 of the Indian Constitution. The minority judgement went ahead to declare that not granting the same rights as those that accrue within marriage to those in civil unions would be violative of the Constitutional promise of no discrimination on the basis of sex. Regarding the Child Adoption issue, the minority opinion was that adoption Regulations discriminate against unmarried couples.

In terms of protection from harassment by families and the police, the Chief Justice of India made very compelling directions to the State to protect the rights of LGBTQ+ couples against discrimination and harassment, especially by the police. Even in the absence of formal marriage rights, this specific instruction for law enforcement agencies could go a long way in easing the problems faced by couples exercising their choice of intimate partner, especially lesbian, bisexual, intersex and trans women. This is something that needs to be widely spoken about.

What will the future look like for the LGBTQ+ community in India?

Despite not granting new rights to the LGBTQ+ community, the judicial discourse has certainly moved ahead in terms of recognizing the various forms of discrimination acknowledged earlier in NALSA and Navtej Johar. The Constitution Bench firmly countered the government’s claims that queerness was an alien, urban or elite phenomenon, asserting “pluralistic social fabric” and an “integral part of Indian culture”. All judges acknowledged the inequity and intolerance faced by the LGBTQ+ community, as well as the denial of access to certain benefits and privileges that are available to heterosexual married couples.

In other gains, the State had volunteered to set up a committee chaired by the Cabinet Secretary for the purpose of defining the scope of entitlement of queer couples who are in unions. They may pass an Act creating civil unions, or a domestic partnership legislation, or perhaps, rather than the Union Government, the State legislatures could take action and enact laws or frameworks. The possibilities are not encouraging, however, given the government has already expressed that same-sex marriages are not “comparable with the Indian family unit concept of a husband, a wife and children”.

The split verdict is a clear setback to the long struggle for equal rights of the LGBTQ+ communities, who remain unsure about how far the conservative forces will take up the directions of the Court to bring about the much-needed changes. It is imperative to continue to discuss and engage with familiar and unfamiliar groups and social institutions. This fight shall continue until no one can deny the rights that are due to the LGBTQ+ community as equal citizens of the country.

Domestic workers in India demand justice

Domestic workers in India are demanding justice and respect. Anita Kapoor, a founding member of the Shahri Mahila Kaamgar Union (SMKU – an unregistered union working with domestic workers in the Delhi-NCR region), shares the experiences and demands of domestic workers through their own words for International Domestic Workers’ Day.

We, the domestic workers, are on the margins of society due to the utter neglect of society and the Government. Our situation was further worsened by the Covid-19 pandemic and consequent lockdowns. We were swamped by death, illness, hunger and helplessness. We left our livelihoods in the cities. We walked thousands of kilometres to return to our villages on hungry stomachs. Where was the government then?

Domestic workers were accused of being carriers of the virus. Our employers began to look at us with eyes of hatred. Where was the government then?

In the name of the pandemic, we, women domestic workers, became unemployed and injustice was inflicted upon us. Where was the government then?

Who gave the police an open license to harass us on the streets when we were struggling with these worries?

The Covid-19 lockdowns ruined our lives

We worked hard to earn a livelihood and a life of dignity, but the pandemic pushed us to a situation of utter helplessness. Many domestic workers lost their livelihoods and income and had no idea when they would be reinstated. Not only did they not have monthly incomes, but they also lacked rations and health services due both to the lockdowns and to poorly designed support measures. This was the time that domestic workers and their households needed support the most, and yet we found that our appointed representatives did not extend their hands in support.

The methods used to deal with the pandemic perpetrated caste violence, economic, exploitation and religious atrocities. The education of children was wrecked. Bodies were flowing in rivers. There were long queues at cremation grounds and graveyards. There were oxygen shortages in hospitals. Large companies were given debt relief. The economy was in tatters. but crowds for elections were exempted. People were permitted to join the Kumbh Mela. The courts and systems of justice were closed. Instead of the parliamentarians being open to hearing people’s issues, parliamentary sessions were cut short and anti-people farmers’ laws and labour laws were passed. The regime was absent.

Our employers exploited our vulnerability during the Covid-19 pandemic to decrease wages and convert our working status to full-time live-in workers. For us, it was not the Covid-19 virus that was the problem, but the violence inflicted on us by our employers – the decrease in our wages, the non-stop 24-hour workday, the hateful looks, the cruelty – these were our real struggles.

These have been lasting effects on domestic workers, undoing all the progress we made in the past decades. Previously, we had the power to voice our demands, even if it was only for four days of holiday and a 500 INR bonus during festivals. But the pandemic robbed us of even that limited bargaining power and the capacity to organise.

The issue of unemployment is rife in our sector. The demonetisation of the Indian currency in 2016, followed by the pandemic, has caused us to sink under the weight of indebtedness and economic burdens. Our husbands and even our children do not have secure employment. We feel the burden of running our households. As a result, we are not always in good physical or mental health.

Our demands

Given the situation and challenges faced by domestic workers, we have several demands for the Government. We demand appropriate wages, a day’s leave in a week, fixed hours of work in a day and the assurance of provident fund, pension, workers’ social security, etc. We demand a regulator for the employers so that the many atrocities and forms of violence against workers stop.

It is important for domestic workers to speak together about what happened during the Covid-19 pandemic and about the issues that we continue to face to this day. It is important for us to document and investigate these issues and demand accountability from the government. In this work, we all have a collective responsibility. Across India, various organisations are conducting public hearings calling for accountability. Allied domestic workers’ unions must also join hands with the National Platform for Domestic Workers to put pressure on the government to concede our demands. We must investigate government policies by setting up public inquiry committees in different places. This is our fundamental constitutional duty. It is our responsibility to undertake. All the people of this country have to join in these efforts.

The voices of domestic workers proclaim:

“COVID is a symbol of the violence and atrocities against domestic workers”

“Respect, dignity, love and rest – this is our demand as workers”

“Pay us the right price for our work- this is our slogan as workers”

“Let us gain our rights as workers – this our demand as domestic workers”

“Domestic work is work! Recognise domestic workers as workers!”

“Fix minimum wages for domestic workers now!”

“Fix our hours of work now!”

“We are workers, not slaves!”

“On the issues of livelihoods, the government will be investigated by us/ its own citizens”

“On the issue of domestic workers, the government will be investigated by us/ its own citizens”

“We will ensure accountability for what happened with us!”

This blog was produced in collaboration with Countering Backlash partner, Gender at Work Consulting – India, and originally written in Hindi (translation provided by Sudarsana Kundu and Shraddha Chigateri).

Who wins when human rights are set against each other?

Activists and development practitioners have historically used human rights to advocate for changes in law and policy to protect the rights of vulnerable communities or groups. More recently, academic research on human rights, and development practitioners have noted how ‘gender-restrictive groups are succeeding at using the language and legal tools of the human rights framework to present their anti-rights efforts as right-affirming initiatives’.

Significant efforts have been made to understand how these gender backlash narratives are built, such as research on forms of resistance and backlash, co-option, discourse capture and more. One such narrative tool to build gender backlash is when anti-gender-rights actors create a false narrative showcasing one community’s rights as being detrimental to another’s. This constructed narrative of a competition between the rights of two marginalised communities limits the frame of discourse to these communities, thus protecting existing power hierarchies.

This blog is based on original research for the dissertation for my M.A Gender and Development degree at the Institute of Development Studies. My work, since then, with Young People for Politics, Rejuvenate, and CREA has also been instrumental in writing this blog. In the paragraphs below, I expand on the role of ‘competition of rights’ in serving gender backlash agendas. Here is what I’ve found:

How is the narrative of ‘competing rights’ staged?

Rehana Fathima, a feminist activist from Kerala, India, uploaded a video of her children drawing on her naked upper body as a political act against sexualising women’s bodies, calling for action to reinterpret female bodies. My research on this ‘political act’, and responses to it by the State and other institutions, illustrate the ways in which her feminist gesture was eclipsed by a discourse on child safety.

In encouraging her children to draw on her naked upper body, Fathima was seen to be forwarding her own political agenda at their expense; she was accused of ‘sexual abuse’. My study revealed ‘censure’ from sites of legitimate authority, and ‘discourse capture’ were tools used to stage this competition between Fathima’s right to gender justice and her children’s right to safety.

These trends are seen globally; a more recent example is the trans-exclusionary stance promoted by the United Nations Special Rapporteur on Violence Against Women (SR VAW). In November 2022 the SR VAW urged the Members of Scottish Parliament in a public letter to reconsider the Scottish Gender Recognition Reform Bill (GRR), which proposed simplifying the process of gender self-identification for trans persons. The SR VAW argued that the proposed reform provides an opportunity for perpetrators of violence to identify as women and access women-only safe spaces, thus risking further perpetration of violence against already vulnerable cis women.

In both cases, the accusations are not supported by any evidence, but are taken as legitimate concerns due to the authority of the inquirer. This narrative creates a false co-relation between the advancement of rights of one group with risks faced by another. It twists and repurposes the narrative shifting focus from the original cause – in Fathima’s case desexualising female bodies, and in the case of the Scottish GRR self- identification for trans persons– allowing for discourse capture. Additionally, backlash actors form intentional alliances to ensure cohesive action leading to this form of discourse capture. In instances where such overt alliances are not formed, such as in Fathima’s case, there continues to be cohesion across backlash actors because the narrative is built on gender norms coded into the socio-cultural, political, and economic institutions.

In the competition of rights, anti-gender-rights activists identify one group as ‘in need of protection’ and create a moral panic. Fathima’s children were assumed to be incapable of understanding the political act they helped create. Hence, none of the stakeholders engaged with the children to assess if they had consented to participating in Fathima’s political act, which is a valid concern with regards to upholding the children’s rights. In case of the SR VAW, the letter had the support of multiple trans exclusionary feminist and women’s rights groups. The SR VAW decided to represent their concerns, while disregarding the many representations made by feminist collectives who support self-identification for trans persons and oppose the arbitrary correlation between right to gender self-identification and increased risk of violence against cis women. Through this form of narrative building one group is identified as more vulnerable (i.e., children and women respectively in the above cases) and as having homogenous needs. Their rights are considered to be more valuable than those of persons belonging to less normative groups. This narrative of competing rights separates groups into neat boxes, ignoring the many intersections and critical ally-ship across marginalised groups and communities.

Piercing the smokescreen of competing rights

This form of narrative backlash not only disrupts progressive gender rights agendas but is built on and promotes existing gender normative and oppressive structures. While creating counter-narratives is essential, it is also critical to proactively build popular narratives that delegitimise, or create an adverse environment for, the work of backlash actors. Here are four recommendations:

Human rights are indivisible: Rights are inseparable by nature and the rights of one community cannot be upheld by denying the rights of another.
Nothing for us without us: All gender-rights discourses must ensure deep representation from the communities of rights holders themselves. Diversity and dynamism in representation is essential to counter backlash.
Gender is never binary: Discourse on gender rights and development initiatives for gender-based rights must consciously include agendas that challenge gender binaries and represent non-normative forms of thought and action; it must not be depoliticised
Be an ally –step up and/ or make space: Rights movements cannot exist in silos; therefore cross movement ally-ship is an important aspect of countering gender backlash. Gender rights are intrinsically linked to all human rights. We must learn to step up and give up our space in support of each other across movements.

Empty promises: Continuing the fight for trans rights in India

Despite a rich cultural tradition of gender-fluidity, the transgender community in India have been stigmatised as a ‘criminal tribe’ through a colonial-era law. The community has struggled for their rights over decades, and only after significant engagement with the judiciary were they finally counted in the population Census of 2011.

It wasn’t until findings of an Expert Committee in 2013 into the discrimination of the transgender community that there was significant legal change. After a Public Interest Litigation, the Supreme Court of India ruled that transgender persons had the right to self-identify as male, female or a third gender. It also brought into law that the constitutional rights to life, dignity and autonomy would include the right to a person’s gender identity and sexual orientation. The government then brought in the ‘Transgender Persons (Protection of Rights) Act 2019 (TG Act)’, and issued the Rules in September 2020, which are used to enforce the act.

But the transgender community has seen little change, and still face discrimination in everyday life.

“The teacher said to my father, ‘Take your son away, keep him somewhere else, I cannot teach him in school. Only if he behaves properly, I’ll be able to teach him in school’. I tried really hard but I was never able to behave ‘properly’. … my walk was different; my voice was different…”

The poster reads: “‘You shouldn’t come looking like this, You shouldn’t walk around like this, You should walk like a boy.’ This is how I would be thrown out of school.” A representative of the transgender community. Why does this injustice continue in Education despite the guarantees in the Transgender (Protection of Rights) Act 2019 and the Rules (2020)?” Credit: Centre for Health and Social Justice.

Discrimination remains

The TG Act and Rules have many provisions, including a simpler process for self-identification, setting up a Welfare Board and a Transgender Protection Cell, and creating separate infrastructure in hospitals, jails, shelter homes, as well as separate washrooms everywhere, yet none of this has been implemented.

“Despite the reading down of Section 377 or the passing of the Transgender (Protection of Rights) Act 2019, we have not received any opportunities or benefits that have been promised to us in law.

The only change is that in forms and documents there’s been the addition of the word “Others” or “Transgender” but these terms really have no benefit for us.”

The disregard of the mandatory Equal Opportunity policy in all establishments leads to continued discrimination against the community in all social settings, including families, neighbourhoods, educational institutions, public places and limits opportunities to find employment. Many in the transgender community have not had access to schooling, and are not able to read the TG Act and know what their legal rights are.

“When we approach the police, their response is, ‘Wait outside; do you expect us to listen to you right away? Are you going to give us instructions?’”

Demanding action for trans rights

The Centre for Health and Social Justice (CHSJ) (partners of Countering Backlash) and the transgender collective Kolkata Rista, led an event in July, sharing findings from a recent scoping study they conducted. The event brought together members of the transgender community along with senior officials from the police department, the health and AIDS Control department, and correctional facilities, to showcase three short films and posters which highlight the discrimination transgender people face in education, healthcare, work, and from the police.

The event started the creation of a support system for the transgender community with the institutions that attended, who must use their power to enact positive social change. Kolkata Rista also launched a community crisis response and support cell with a helpline which will respond to any incident of violence or harassment and discrimination faced by the transgender community in Kolkata. It will include a safe space for shelter and medication or counselling.

The scoping study carried out by CHSJ with people in the transgender community brought out the lack of meaningful change in their situation despite their aspirations for self-improvement. The study also found that key people in the police department, health department and HIV/AIDS prevention programmes who have the power and knowledge to enact change have not yet carried out training for their staff on the TG Act of 2019 and the Rules.

Watching the stories of their own lives and struggles unfold in the films was an emotional experience for the community members. They shared painful experiences of rejection and humiliation and how a lack of opportunities to make changes in their lives affected them. The police officials and those leading AIDS programmes pledged that they would do more to provide meaningful support after watching these films and hearing their stories.

Now, those words must become action, and we must keep a vigilant eye on progress to make sure that rights are realised.