A gay judge is great but LGBTQ need much more than that


Saurabh Kirpal is slated to be the first openly gay judge in the Delhi High Court. In a more perfect world, only his qualifications to be a judge would matter. That he is gay should be incidental, neither something to celebrate nor hold against him.

Yet it’s hard to deny the suspicion that his nomination, pending since 2017, fell victim to his sexuality. It was deferred every year. The government denied the red flags had anything to do with his orientation. Its concern, reportedly, was Kirpal’s Swiss partner whom the Intelligence Bureau deemed a “security risk”.

The irony is rich. The government that is now so concerned about Kirpal’s partner is the same government that is in steadfast denial of same-sex partners otherwise. It refuses to countenance the idea of same-sex marriage and it affords no recognition to same-sex partners. But when it came to Kirpal, in the eyes of that same government his partner suddenly became a very significant other.

WAY TO GO: Kirpal’s story is inspiring but progress is about boring things like joint bank accounts, custody, insurance, etc.

At the end of this month, the same-sex marriage hearings will come up before the Delhi High Court. Some observers say India is lucky that it already has a Special Marriages Act that can bypass religion and could be a way to allow same-sex civil marriage. But the government has already made its stance clear. It has insisted that just because homosexual sex was decriminalised it did not mean homosexuality was being legitimised. Thus recognition of same-sex marriage was off the table as far as the government is concerned.

But as the case of Kirpal’s partner proves, these lines are trickier to navigate than we ever imagine. It was inevitable that the ball would not stop rolling at decriminalisation just because the government drew a line in the sand. Gay people cannot come out of the shadows yet leave their relationships in the closet. One could debate about whether marriage should be the top priority for the movement and whether the whole idea of tying benefits to marriage is outdated but it’s only natural that LGBTQ people would want the same rights as everyone else. If the right to choose one’s partner is part of the right to privacy, and if it is not criminal to choose a partner of the same sex, then why should that partner be denied public recognition? As Kirpal writes in the introduction to his anthology Sex and the Supreme Court, “Autonomy implies the right to choose and decide the course of one’s life for oneself. That freedom, however, is meaningless without the ability to act upon it.” When the US Supreme Court was hearing the Defence of Marriage Act (DOMA) in court, Justice Sonia Sotomayor asked the defending counsel, “Outside of the marriage context, can you think of any other rational basis, reason for a state using sexual orientation as a factor in denying homosexuals benefits?” The lawyer admitted “Your Honour, I cannot. I, I do not have anything to offer you in that regard.”

Currently the debate around marriage in India is caught up in symbols and rituals. Does Dabur get to give a lesbian twist to Karva Chauth in an ad for skin bleaching products? Can fashion designer Sabyasachi pair a mangalsutra with low necklines and suggestive intimacy? Can Tanishq show a Muslim family organising a traditional Hindu baby shower for their Hindu bahu?

But marriage is not only about bindis, mangalsutras and Karva Chauth. It’s not even about the right to have a big fat gay wedding (which are happening anyway). It’s about something much more basic. The pandemic lockdown drove that point home. Suddenly an NRI married to an American same-sex partner realised her long-time partner could no longer come to India, no matter the emergency. In the government’s eyes, she was just a tourist and the country was closed to tourists. The rules were relaxed for OCIs (Overseas Citizen of India) whose spouses were Indian nationals but same-sex spouses were left out in the cold because their marriage was not recognised by the government. A same-sex couple can live together, raise a child together, take care of an elderly parent together but they are still strangers in law. For that matter they can even do Karva Chauth if they like, but they cannot easily access things other couples take for granted like a joint bank account or a family health insurance plan.

In the end progress is about these boring things.  The first openly gay judge on the Delhi High Court makes for a good news story. It will be a point of inspiration for many. It is something to be welcomed but what LGBTQ Indians ultimately need are those joint bank accounts, the health insurance plans, joint custody of children and hospital visitation rights.
Just like every other couple.

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Disclaimer

Views expressed above are the author’s own.



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