These cards are intended to illuminate and inspire – to show both the complexity and continuity of our struggles. We do this through showing the issues at stake, and how and why this is backlash; a timeline of events; the individual and collective actors working for and against backlash; and, finally, successful countertactics. […]
Countering Backlash: Reclaiming Gender Justice. Synthesis Report of Research Over Six Years
This report distils six years of collaborative research (from late 2019 to early 2026) by the Institute of Development Studies and 11 partners across seven countries on how contemporary gender backlash operates, and how feminist, queer, and other social movements are resisting it. It argues that current backlash is not simply anti-feminist business as usual but a qualitatively different, globally proliferating mode of patriarchal crisis management, emerging amid intersecting crises, authoritarianism, and deepening inequalities. […]
EVENT: Struggles for gender justice and fair legal systems in headwinds
A Parallel Event to the 70th UN Commission on the Status of Women, CSW70
Join us in a discussion on defending gender justice in a time of institutional crises and eroding access to justice. Researchers from different regions share insights from case studies on the erosion of gender justice, and push-back on strategies for progress, to debate with the audience on urgent needs for defending and advancing access to justice for all. Legal systems are struggling to eliminate discriminatory laws. Policies and practices are becoming less inclusive whilst structural barriers take new forms. What can different actors do to turn the tide together?
This discussion on defending gender justice in a time of intensified backlash against women’s rights, institutional crises and eroding access to justice draws on recent multi-year research from across the global South. The panel of experts from Bangladesh, Brazil, Lebanon, Uganda and the UK will be guided in an interactive format to briefly share their insights from findings on the erosion and push-back against gender justice, interspersed with facilitated audience questions for a live discussion on what is needed to defend and advance access to justice for all. We will first root the discussion in brief insights from policy case studies from Global south – ranging from family law to domestic violence and sexual offences legislation – which illustrate the persistence of discriminatory laws, and the shrinking space for inclusion in policy and practice, as structural barriers deepen and take new forms. We will then also share strategies adopted by women and human rights defenders to navigate these challenges and to resist the erosion of gender justice at multiple levels. What can different actors do together?
Co-chairs: Laura Turquet, UN Women, and Jerker Edström, IDS
Speakers:
- Sohela Nazneen, IDS, Uk
- Lata Narayanaswamy, University of Leeds, UK
- Maíra Kubik Mano, Nucleus for Interdisciplinary Women’s Studies (NEIM/UFBHA), Brazil
- Tessa Lewin, IDS, UK
- Sofia Orrebrink, Sida, Sweden
- Vivek Rai, UN Women
Where
- In person only
- Salvation Army (Lower Level), 221 E. 52nd St. New York, NY 10022
When
- Friday 13th March, 10:30 am – 12:00 pm (EST)
Register
- Register on the NGO CSW website: Event #18459
Institutionalising Backlash: Anti-Gender Frameworks as a Means to Justify Democratic Erosion in the United States
This study explores the increasingly visible relationship between anti-gender backlash, authoritarianism, and right-wing populism in the United States […]
Countering Backlash partner AIW wins prestigious award
We are excited to announce that our partner organisation the Arab Institute for Women (AIW) at the Lebanese America University (LAU) has won at the Times Higher Education (THE) Awards Arab World 2024.
Winning in the category of ‘Research Project of the Year: Arts, Humanities and Social Sciences’, judges of the THE Awards said that “some social science projects provide the knowledge a society needs at a vital moment in time. AIW’s entry is a great example – with solid academic research and a collaborative approach to engage with society, their work is having a real-world impact in an area of vital importance”.
Myriam Sfeir, executive director of AIW shared that “it’s very gratifying to receive this award, especially at such a critical time for our country and our region. It gives us greater visibility, opens more doors and highlights the Institute’s day-to-day efforts to develop a culture of change”.
This award comes at a pivotal moment as LAU celebrates 100 years of Education, Empowerment, and Innovation and AIW half a century of leading the charge to mainstream gender issues within the institution and bridging the gap between academia and activism to advance gender justice.
AIW was established in 1973, building upon the Lebanese American University’s rich history as a school for women. At that time, it was the first such institute in the Arab region, working at the intersection of academia and activism. It remains one of the first globally and one of the few in Lebanon. The Institute advances gender equality and advocates for gender justice concerns nationally, regionally and globally through research, education, development programmes, and outreach.
“It fills me with immense pride to belong to this institution, which has always been a strong supporter of AIW and continues to be,” adds Myriam. “AIW is a small but mighty institute, and we promise to always walk the walk.”
AIW’s research on the Countering Backlash programme focuses on improving the understanding of gender backlash in Lebanon, and strengthening strategies to counter. They have published research on ‘Backlash in the Lebanese Media’, ‘Understanding Backlash in Lebanon’ and ‘Deconstructing Anti-Feminist Backlash: The Lebanese Context’, as well as numerous opinion-pieces – all available on the Countering Backlash website.
Backlash and Beyond: Anti-LGBTQ Lawmaking and Existential Panic in Ghana, Kenya and Uganda
This paper is based on a discourse analysis of select anti-LGBTQ laws, draft laws and related parliamentary proceedings in 2023 in Ghana, Kenya and Uganda, and reveals how efforts at expanded criminalisation seek to further regulate, police and constrain sex, sexuality, gender, family, and African subjectivities and nationhood. […]
Backlash in the Lebanese Media
This research report from the Arab Institute for Women explores the presence of backlash in Lebanese media, and how it is used. […]
Understanding Backlash in Lebanon
This research report from the Arab Institute for Women explores definitions of backlash, and how backlash should be understood in Lebanon. […]
5 ways funding is crucial for organising and defeating gender backlash
Backlash from conservative, patriarchal, religious and political forces is often seen as ‘the cost of doing business’ by feminist or LGBTQ+ activists. Yet how do philanthropic institutions who support gender justice respond to the scaled-up, well-financed and globally coordinated anti-gender ideology backlash today? How do they support and collaborate with activists and civil society organisations to expose and win against the ‘opposition’?
Lisa VeneKlasen explores this in Countering Backlash’s latest working paper ‘Anti-Gender Backlash: Where Is Philanthropy?’. It is written primarily for gender justice and women’s rights activists and researchers in the global South who struggle to make sense of the philanthropy ecosystem, and to gain a partial view of the map of actors most closely aligned with their agenda.
With the focus of UN Women’s 68th Commission on the Status of Women (CSW) 2024 around ‘financing with a gender perspective’, here are five takeaways from the paper.
1. Gender is the ‘canary in the coalmine’
Coordinated attacks on gender rights and activists are part of a larger authoritarian agenda that includes the targeting of ethnic and racial minorities, immigrants, environmentalists and more. The backlash against gender justice is a central pillar of the orchestrated rollback of democratic and progressive rights, politics and movements. Important collaborations between LGBTQ+ and feminist donors through the Global Philanthropy Project (GPP) and between women’s funds, such as the On the Right Track initiative, are funding research that tracks who’s behind the anti-gender movement and makes the connection between anti-gender, anti-democracy and authoritarian discourse and strategies, in addition to resourcing increased power and protection of activists.
2. Anti-gender funding is a juggernaut
Global anti-gender backlash is a juggernaut, stifling and reversing advances in racial, gender, and reproductive rights and justice, and attacking defenders in dozens of countries, and globally. As shown in the paper, research by the Global Philanthropy Project (GPP) finds that the anti-gender movement spent over USD$1 billion between 2008 and 2017, from organisations based in the United States alone while new anti-gender networks are emerging in Europe. These are the networks behind the passing of ‘anti-gay’ laws in Uganda and Ghana, for example. In 2023, research by the Institute for Journalism and Social Change (IJSC) found that the UK Government had been directly funding anti-LGBTQ+ churches in Uganda.
“Actors in the UK are now a ‘key producer and exporter of anti-gender narratives”
In contrast, justice philanthropy has been slow to respond, and many steps behind the anti-gender opposition with regard to coordination, amounts and ways of funding.
3. Donors are not making the connection between gender backlash and threats to democracy
Too few donors recognise how patriarchy and gender are ‘critical to the forces characterised by rising authoritarianism’, according to interviews for this research.
Trump’s election in 2016 and subsequent assaults on reproductive and gender-related rights have been a ‘wake-up call’ focusing philanthropic attention on the urgency of anti-gender backlash. But feminists in philanthropy suggest that it remains an uphill battle, and that women’s rights funding is generally decreasing.
They point to the different ways that characterising anti-gender backlash prevents donors from sharing a common understanding of the problem. The distinct frames donors use include: fundamentalist backlash, democratic backsliding, rising authoritarianism, anti-gender, anti-feminist, anti-‘gender ideology’, anti-rights, anti-abortion, anti-democracy, the far right, religious nationalism, and the opposition.
A report published in September 2023 from the Astraea Lesbian Fund for Justice, ‘Global Resistance to Anti-Gender Opposition’ explores this issue. It recommends that donors’ responses ‘keep it simple’ (e.g. use words like ‘conservative’ or ‘fundamentalist’) to help forge a shared narrative and communicate to the general public.
Backlash is nothing new, and many feminists and gender justice activists are frustrated by a perceived lack of donor urgency. One donor advisor shared that some activists in the Middle East, feel like the recent framing of ‘anti-gender-Backlash’ is a Western export by Northern donors who are only now realising the extent of the problem because of Trump.
Several philanthropic foundations, such as Ford Foundation, Oak Foundation, and Wellspring, are prioritising global South-led research and other strategies to fill knowledge gaps. GPP plays a central role in gathering analysis and coordinating the growing interest across the philanthropic sector.
4. Donors must also fund collaboration among feminist activists and organisers directly
The fact that philanthropic organisations are investing time and funding to coordinate and scale up their responses is promising. For example, GPP’s ‘Shimmering Solidarity Summit’ in 2021 led to the establishment of the ‘Responding to Anti-Gender Initiatives’ (RAGI) to ‘energise and coordinate donor responses.’ According to GPP staff, there has been a significant increase in funding to LGBTQI+ groups and improved coordination since the summit, but new challenges are always emerging.
At the same time, funders recognize that prevalent funding siloes can create competition and prevent urgently needed collaboration. Improved donor collaboration is welcome, but it doesn’t substitute for more unconditional funding to enable activists and organisers to create their own spaces that are essential to power-building and aligning creative multi-sectoral strategies and unusual alliances to tackle and expose who’s behind backlash on multiple fronts. With more opportunities to strategise together, they would also have meaningful advice for their donor partners. Both a donor and activist approach to collaboration is essential.
5. Funders in search of ‘innovation’ while managing a heightened sense of risk
The philanthropic sector tends to seek out innovation and ‘big bets’. At times, the search for the new and better is at the expense of tried and tested strategies that are not as visible or exciting.
Not infrequently, new large-scale funding is directed toward the creation of new funding structures like collaborative and pooled funds to move money more quickly to groups and mitigate risk to the donors involved. Two new promising collaborative funds that have emerged in response to GPP’s analysis are Numun and Nebula. Both of these funds direct resources toward energised movement-driven collaboration to address important gaps.
Risk is not new to donors, though, in such a volatile political moment, donors are naturally concerned, especially as philanthropic foundations have faced attacks from governments. How to balance the risk of not funding movements at the scale needed to win against the risk of donor-directed political and legal attacks is a significant dilemma.
The seemingly contradictory push and pull of heightened risk vs a ‘moonshot’ mindset impacts how quickly and flexibly funding flows. This is particularly true for the less flashy organising and infrastructure-building necessary to resist and win against an ever-morphing foe in the long run.
Anti-Gender Backlash: Where is Philanthropy?
This working paper explores how philanthropic institutions with a history of supporting women’s and LGBTQI+ rights and democracy are seeing and responding to anti-gender backlash, and the background dynamics shaping the struggle. […]
Understanding gender backlash through Southern perspectives
Global progress on gender justice is under threat. We are living in an age where major political and social shifts are resulting in new forces that are visibly pushing back to reverse the many gains made for women’s and LGBTQ+ rights and to shrink civic space.
The focus of this year’s UN Commission on the Status of Women (CSW) calls for ‘accelerating the achievement of gender equality and the empowerment of all women and girls…’. This ‘acceleration’ would be welcome indeed. We are not so much worried about slow progress but rather by the regress in a tidal wave of patriarchal – or gender – backlash, with major rollbacks of earlier advances for women’s equality and rights, as well as by a plethora of attacks on feminist, social justice and LGBTQ+ activists, civic space and vulnerable groups of many stripes.
The Countering Backlash programme explores this backlash against rights in a timely and important IDS Bulletin titled ‘Understanding Gender Backlash: Southern Perspectives’. In it, we ask ‘how can we better understand the contemporary swell of anti-feminist (or patriarchal) backlash across diverse settings?’. We present a range of perspectives and emerging evidence from our programme partners from Bangladesh, Brazil, India, Kenya, Lebanon, Uganda, and the United Kingdom.
Here’s what you can find in our special issue of the IDS Bulletin.
Why we need to understand gender backlash
‘Anti-gender backlash’, at its simplest, it refers to strong negative reactions against gender justice and those seeking it. Two widely known contemporary examples, from different contexts, are Uganda’s Anti-Homosexuality Bill (passed in 2023), and the United States Supreme Court’s overturning of Roe vs Wade (which gave women the constitutional right to abortion) in 2022.
The term ‘backlash’ was first used in Susan Faludi’s (1991) analysis of the pushback against feminist ideas in 1980s in the United States, and historically, understandings of anti-gender backlash have been predominantly based on experiences and theorising about developments in the global north. More recent scholarship has afforded insights on and from Latin America and Eastern Europe.
Much explanatory work to date, if it does not implicitly generalise from global north experience, often fails to adequately engage with the ways these locally specific phenomena operate transnationally, including across the global south, and with its complex imbrication in a broader dismantling of democracy.
New ways of analysing gender backlash
The Issue presents new ways of analysing backlash relevant to diverse development contexts, grounded examples, and evidence of anti-gender dynamics. It aims to push this topic out of the ‘gender corner’ to connect it to contemporary shifts in relationships between faith, identity and state, governance, and the broader politics of democracy and economics, as seen from across the global south.
The articles in this special issue are grouped into three themes: one, on ‘voice and tactics’, including whose voices are being heard, and what tactics are being used?; two, on ‘framings and direction’, including how are ideologies spread, and how can we understand attitudes to change? and; three, on ‘temporality and structure’, including what is ‘back’ about backlash? What and who drives it, and how is it imbricated in broader trends and crises? Additionally, most articles proffer some thoughts and recommendations on the implications for directions to counter backlash, whether specifically for feminist movements, for other gender and social justice defenders, or for researchers and students.
Southern Perspectives
This Issue fundamentally challenges simple and reductive understandings of gender backlash. Diverse examples of politicised backlash are ‘mapped’ across geographies and viewpoints. This can help to build a more granular and multi-perspectival understanding of backlash, of its more subtle processes of co-optation and division, its connected across borders, regions, and continents, and the contextual and different strategies of resistance.
Understanding Gender Backlash: Southern Perspectives
The 30th anniversary of the Beijing Declaration and Platform for Action in 1995, and the 10th anniversary of the Sustainable Development Goals (SDGs), are fast approaching. And with global progress on gender justice being attacked around the world, we must find ways to combat gender backlash now.
The Countering Backlash programme has produced timely research and analysis on gender backlash, presenting a range of perspectives and emerging evidence on backlash against gender justice and equality, as such phenomena manifest locally, nationally, and internationally.
‘Understanding Gender Backlash: Southern Perspectives’ is our iteration of the IDS Bulletin, including contributions, insights, expert knowledge from a range of actors in diverse locations across South Asia, Sub-Saharan Africa, Brazil, Lebanon and the UK – and all part of the Countering Backlash programme.
The IDS Bulletin addresses the urgent question of how we can better understand the recent swell of anti-gender backlash across different regions, exploring different types of actors, interests, narratives, and tactics for backlash in different places, policy areas, and processes.
The IDS Bulletin will be launched by a hybrid event on 07 March 2024, ahead of the programme’s attendance at UN Women’s Commission on the Status of Women (CSW) 2024.
Articles
Jerker Edström; Jennifer Edwards; Chloe Skinner; Tessa Lewin; Sohela Nazneen
Institute of Development Studies (IDS)
Sohela Nazneen
Institute of Development Studies (IDS)
Cecília Sardenberg; Teresa Sacchet; Maíra Kubík Mano; Luire Campelo; Camila Daltro; Talita Melgaço Fernandes; Heloisa Bandeira;
Nucleus of Interdisciplinary Women’s Studies of the Federal University of Bahia (NEIM)
Maheen Sultan; Pragyna Mahpara
BRAC BIGD
Adeepto Intisar Ahmed; Ishrat Jahan; Israr Hasan; Sabina Faiz Rashid; Sharin Shajahan Naomi
BRAC James P Grant School of Public Health
Jerker Edström
Institute of Development Studies (IDS)
Abhijit Das; Jashodhara Dasgupta; Maitrayee Mukhopadhyay; Sana Contractor; Satish Kumar Singh
Centre for Health and Social Justice (CHSJ)
Shraddha Chigateri; Sudarsana Kundu
Gender at Work Consulting – India
Phil Erick Otieno; Alfred Makabira
Advocates for Social Change Kenya (ADSOCK)
Amon A. Mwiine; Josephine Ahikire
Centre for Basic Research
Tessa Lewin
Institute of Development Studies (IDS)
Nay El Rahi; Fatima Antar
Arab Institute for Women (AIW)
Jerker Edström, Jenny Edwards, Tessa Lewin, Rosie McGee, Sohela Nazneen, Chloe Skinner
Institute of Development Studies (IDS)
Event: Sustaining and expanding south-south-north partnerships and knowledge co-construction on global backlash to reclaim gender justice
We are living in a time of global unrest and division stoked by increasing polarisation in politics, authoritarianism and backlash on gender equality, inclusion and social justice.
This event, during the UN’s Commission on the Status of Women (CSW) 2024, explored how effective south-south-north partnerships can develop better and more nuanced understandings of gender backlash, to inform strategies for defending gender justice.
Based on research from the Countering Backlash programme, this event was a discussion between researchers, civil society activists, with bi- and multi-lateral development agencies. It provided insights from research and policy spaces on how we can work together more effectively to reclaim gender justice.
Starting in a panel format, speakers were asked to reflect on key insights from partnering in research on backlash, in activism and in international policy spheres. The co-chairs facilitated a dialogue between panellists and then opened up the discussion with the audience.
This event was hosted by the Lebanese American University, and co-sponsored by the Government of Sweden.
When
- 13 March 2024
Where
- In person – Lebanese American University, New York
Speakers
- Nay El Rahi, Activist and Researcher, Arab Institute for Women, Lebanese American University
- Phil Otieno, Executive Director, Advocates for Social Change Kenya (ADSOCK)
- Tessa Lewin, Research Fellow, Institute of Development Studies
- Jerker Edström, Research Fellow, Institute of Development Studies
- Ida Petterson, SIDA – Sweden
- Karen Burbach, Ministry of Foreign Affairs, Netherlands
- Constanza Tabbush, Research Specialist, UN Women
Co-chairs
- Myriam Sfeir – Arab Institute for Women, Lebanese American University
- Sohela Nazneen – Institute of Development Studies
Event: How is backlash weakening institutional contexts for gender justice globally?
Gender backlash is continually gaining momentum across the globe, and social and political institutions and policies are being dismantled. Gender justice activists and women’s rights organisations are having to mobilise quickly to counter these attacks.
With speakers from Bangladesh, Uganda, Lebanon, Serbia and India, in this official NGO CSW68 event we asked, ‘how is gender backlash weakening institutional contexts for gender justice globally?’ Speakers discussed: stalling and lack of implementation of the Domestic Violence Prevention and Protection Act (2010) in Bangladesh; the infiltration of conservative religious and political actors in democratic institutions in the context of Serbia and neighbouring countries; anti-feminist backlash as institutional by default in Lebanon; and the legislative weakening of institutional contexts in Uganda, examining Acts which exert control over Civil Society Organisations.
When
- 11 March 2024
Speakers
- Pragyna Mahpara, BRAC Institute of Governance and Development (BIGD)
- Sandra Aceng, Executive Director, Women of Uganda Network (WOUGNET)
- Nay El Rahi, Activist and Researcher, Arab Institute for Women (AIW)
- Nađa Bobičić, Researcher, Center for Women’s Studies Belgrade (CWS)
- Santosh Kumar Giri, Director, Kolkata Rista
-
Jerker Edström, Research Fellow, Institute of Development Studies (IDS)
Chair
- Chloe Skinner, Research Fellow, IDS
Partner Event: BRAC JPGSPH and BIGD hosts Stakeholder Roundtable on Online Anti-Feminist Backlash
Countering Backlash partner BRAC James P Grant School of Public Health (BRAC JPGSPH) held a roundtable discussion on ‘Anti-feminist Backlash in Online Spaces and Creating Counter-Moves’ in collaboration with BRAC Institue of Governance and Development (BIGD) in Dhaka, Bangladesh on 28th November, 2023.
The roundtable was moderated by Nazia Zebin, and the event featured research presentations by Raiyaan Mahbub and Israr Hasan from BRAC JPGSPH and Iffat Jahan Antara from BIGD which set the context for the discussion. The discussions focused on the current challenges of navigating gender justice agendas in the face of rising organised backlash and the delegitimisation of feminism in the consciousness of the mass populace on social media platforms.
Critical insights were shared by experts and lawyers working on issues of digital safety and justice, seasoned NGO personnel, activists, and young movement organisers who are at the forefront of experiencing online backlash as they work on ensuring democratise, safe and gender-friendly digital environments.
Online violence against women is real violence
The campaign for 16 Days of Activism Against Gender-Based Violence this year encourages citizens to share the actions they are taking to create a world free from violence towards women. But what is being done about the online misogyny and violence encountered by gender justice activists, individuals, and organisations fighting for women’s rights and creating awareness online? Do our laws, the state, and its citizens consider an action to be gender-based violence only when it results in physical harm, rape, sexual assault, murder, or something severe?
Every day, women of all ages and socioeconomic backgrounds become victims of online harassment and abuse in the form of trolling, bullying, hacking, cyber pornography, etc. Although there is no nationally representative data on victims of online gender-based violence, according to Police Cyber Support for Women, 8,715 women reported being subjected to hacking, impersonation, and online sexual harassment from January to November 2022.
Read the full op-ed by Countering Backlash partner BRAC BIGD on ‘The Daily Star’ website.
বাংলাদেশের পারিবারিক সহিংসতা আইন বাস্তবায়নে নেতিবাচক প্রতিক্রিয়া (ব্যাকল্যাশ) প্রতিরোধ
নারী ও শিশু নির্যাতন দমন আইন এবং পারিবারিক সহিংসতা (প্রতিরোধ ও সুরক্ষা) আইন ২০১০- এর মতো আইন থাকা সত্ত্বেও বাংলাদেশে পারিবারিক সহিংসতার হার অনেক বেশি। বাংলাদেশ পরিসংখ্যান ব্যুরোর তথ্য অনুযায়ী, প্রতি পাঁচজন নারীর মধ্যে প্রায় তিনজন (৫৭.৭%) তাদের জীবদ্দশায় কোনো না কোনো ধরনের শারীরিক, যৌন বা মানসিক সহিংসতার শিকার হয়েছেন। […]
Countering Backlash in the Implementation of Bangladesh’s Domestic Violence Act
Domestic violence rates are high in Bangladesh in spite of laws such as the Nari o Shishu Nirjatan Domon Ain and the DVPPA 2010. According to data from the Bangladesh Bureau of Statistics, almost three in every five women (57.7%) have experienced some form of physical, sexual, or emotional violence in their lifetime. […]
Event: Counting the cost: funding flows, gender backlash and counter backlash
Major political and social shifts are stifling the possibility of gender justice across the world. Analysing this backlash as operating on global, regional and local scales in this webinar, we ask, where is the money?
While predominant anti-gender backlash movements and actors appear well financed, those countering backlash face significant financial challenges, heightened in the context of rising authoritarianism and shrinking civic space.
In this event, we were joined by leading experts and partners from Countering Backlash and beyond. Isabel Marler from the Association for Women’s Rights in Development (AWID) presented a mapping of sources of funding for anti-rights actors, and interrogate what is effective in countering anti-rights trends, while Lisa VeneKlasen (Independent Strategist, Founder and Former Executive Director of JASS), explored ‘where is philanthropy on anti-gender backlash’? Turning to national restrictions, Sudarsana Kundu and Arundhati Sridhar from our partner organisation Gender at Work Consulting – India focused on the impacts of funding laws for women’s rights organising in India.
When
- 12 December 2023
- 13:00 – 14:30 UK time
Speakers
- Lisa VeneKlassen, Independent Strategist, Founder and Former Executive Director of JASS (Just Associates)
- Isabel Marler, Lead, Advancing Universal Rights and Justice, Association for Women’s Rights in Development (AWID)
- Sudarsana Kundu, Executive Director, Gender at Work Consulting – India
- Arundhati Sridhar, Gender at Work Consulting – India
Discussant
- Rosie McGee, Research Fellow, IDS
Chair
- Chloe Skinner, Research Fellow, IDS
Watch the recording
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.