Denying the right of marriages and a family over homosexuality is a gross violation of human rights
Research shows that the financial, psychological and physical wellbeing of gay individuals is enhanced by marriage and that the children of same-sex parents benefit from being raised by married same-sex couples within a marital union recognised by law and supported by societal institutions. Photo: iStock In the last few weeks, most of India has gone up to its toes over the debate and discourse on same-sex marriages. While the court hearing is in process, different arguments have stemmed both for and against its legalisation.
Approximately 10 per cent of the country’s population identifies as LGBTQIA+ and is clawing its way to the forefront to seek acceptance and normalcy. The debate regarding the necessity of the Special Marriage Act to accommodate same-sex marriages has never been this relevant!
Based on psychological theories, marriage preserves cohesion and social solidarity among couples and is based on mutual respect, love and trust.
As of 2023, same-sex marriages are legally recognised and held in 34 nations worldwide, the most recent addition being Andorra. However, even in these countries, there is ambiguity about adoption rights among same-sex couples.
Michael McConnell and Jack Baker were the first same-sex couple to marry in the United States in 1971 legally. The Netherlands passed the first law stating marriage equality between opposite-sex and same-sex couples, which came into effect in 2001. Understandably, this hue-and-cry regarding same-sex marriages is not new.
Homosexuality continues to be an extremely sensitive topic in Indian households and the society at large, where the concepts of sex, gender and sexuality are better swept under the carpet than debated and discussed in public. As psychiatrists, in our practice, we see homosexuality to be more taboo than ‘sexuality’ itself.
While many consider this an ‘urban’ issue, it is difficult to understand how something as homogeneously prevalent as homosexuality can be solely related to urbanisation. Sexual identity and orientation are often ingrained and choices and not something related to class or that can be imposed!
September 2018 marked a major milestone in the LGBTQIA+ movements in India when consensual sexual intercourse between two adults of the same sex was decriminalised by repealing Section 377 of the Indian Penal Code for this situation.
Also, since August 2022, as per the Indian Supreme Court judgement, LGBTQIA+ individuals can attain rights and benefits equal to married couples as a ‘live-in couple’, which is analogous to cohabitation. Unlike marriages, the rights, benefits and commitments of ‘live-in relationships’ are not regulated by any law.
However, certain pieces of legislation offer various rights to the live-in couple, like the protection of women from the Domestic Violence Act, 2005.
Yet, the gradual integration of homosexuality into the normal texture of society has faced a setback during the recent debates regarding whether or not homosexual marriages and adoption of children by same sex couples should be legalised.
So, as the nation is rapt to hear the final arguments this week by the Supreme Court to answer a consolidated group of petitions to legalise same-sex marriage brought by several LGTBQIA+ couples, let’s take a glance through a different lens.
At a societal level, marriage stands as the institution recognising unwavering social, emotional, physical and financial companionship, the seedling which grows into a family and provides a certain fulfilment and social stature.
Denying that right just on the basis of homosexuality appears to be a gross violation of human rights.
There are many instances across years where same-sex partners have lived their entire lives together, denied any recognition of being a couple or unable to adopt children despite having the financial and emotional capacity to do the same.
Even though the law has recognised the existence and need for protection of ‘atypical families’ like single-parent households, the law still does not allow same-sex couples to adopt a child with both of them as parents.
Especially in a country like India, where the family unit and social connections are highly valued, denying homosexual couples the right to the same seems like a huge discrimination. Thus, the issue of legalisation of same-sex marriage paves the way to much larger societal changes leading to a milieu of a much more accepting and diverse community.
If we can accept single parenting, what prevents us from accepting same-sex parents? Is our reductionistic traditionalism creating a ‘mental block’ to think differently?
Couples usually come to me to resolve internal conflicts and communication issues. But a gay couple surprised me last year.
They said, “It’s not what lies between us that we are worried about. The entire society has so many problems with us and our marriage — we want to know, doctor, how can we make our bonds stronger as an example to the world for people like us.”
This was indeed an eye-opener! Why should reproductive and sexual rights be any different based on sex and gender? Besides, gender is a social construct. So are the gendered roles of a marriage.
In a civilised world, should we really act as a barrier between a consensual couple, irrespective of their gender and orientation? Marriage is between two individuals; a man and a woman can have socially intersecting and exchangeable roles. Hence, homosexual marriages can be as stable as heterosexual ones.
This has been firmly brought into perspective by the recent words of Chief Justice of India DY Chandrachud, “There is no absolute concept of a man or an absolute concept of a woman at all”. This has since been translated in various languages and interpreted in different contexts.
Further, on the third day of the hearing, a United Kingdom Supreme Court case was referred to. This case led to the UK Parliament enacting the Marriage (Same Sex Couples) Act, 2013.
According to this Act, “What matters most is the essential quality of the relationship, its marriage-like intimacy, stability and social and financial inter-dependence. Homosexual relationships can have exactly the same qualities of intimacy, stability and inter-dependence that heterosexual relationships do”.
Research shows that the financial, psychological and physical wellbeing of gay individuals is enhanced by marriage and that the children of same-sex parents benefit from being raised by married same-sex couples within a marital union recognised by law and supported by societal institutions.
Studies in social science indicate that the exclusion of homosexuals from marriage stigmatises and invites public discrimination against them, further leading to their ‘othering’ and violation of human rights.
The gender roles are not watertight. Be it providing emotional fondness by the mother or physical security by the father — these are interchangeable, as we see in the case of single parents. Hence, this cannot be an argument against same-sex marriages.
Further, generational expansion is one of but not the only offshoots of a marriage. It’s every couple’s right to decide whether they want an offspring.
The Indian Psychiatric Society — the largest professional body of psychiatrists in India — recently gave a press release reiterating that homosexuality is not a disorder and LGBTQIA+ individuals should have as many rights as any other citizen of India towards marriage, adoption, education and employment.
The release also highlighted the absolute lack of evidence that same-sex parents are any different from others in adopting or parenting their children.
I am not a legal expert. But as a mental health professional and a physician, I can safely comment that any law that propagates and promotes human rights and prevents stigma in a minority population will be largely welcome.
Decades of oppression, othering and ostracization of the LGBTQIA+ community and constantly living in fear of one’s own sexual identity or orientation can lead to inter-generational trauma within this community.
Normalising homosexuality within society will be associated with inclusion and acceptance as well as positive mental health.
Legalising same-sex marriages is a welcome step to provide legal rights to these couples to cohabit, marry, adopt and build a family life, which many desire. Each one of us as individuals, society and administration or policymakers is an equal stakeholder in upholding the rights of sexual minorities.
Marriage is a personal choice and is associated with reproductive rights. Respecting this choice brings about autonomy, respect, dignity and equality within any community.
To extend what Justice Chandrachud said, “Nothing is absolute and it all depends on how flexible and open-minded we can get for other’s wellbeing.”
Debanjan Banerjee is a consultant neuropsychiatrist and sexologist, Apollo Multispecialty Hospitals, Kolkata
Views expressed are the author’s own and don’t necessarily reflect those of Down To Earth
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