India's Top Court Refuses To Legalize Same-Sex Marriage: A Major Blow To LGBTQ+ Community

India's LGBTQ+ community is grappling with another setback after the country's top court refused to grant legal recognition to same-sex marriages, with the judges passing the responsibility of the decision to the Parliament.

In a history-making moment in 2018, India's Supreme Court (SC) had scrapped a colonial-era law that made homosexuality punishable and expanded the rights for the LGBTQ+ community. However, five years later, the SC's Tuesday verdict leaves around tens of millions of LGBTQ+ people in the world's largest democracy still deprived of the right to marry.

The five-judge bench, headed by Chief Justice of India DY Chandrachud, ruled against the legalization of same-sex marriage in the country. The judges unanimously agreed not to make changes to the country's Special Marriage Act, and the majority view was to let the legislature decide on same-sex marriages.

The verdict seemed to agree with the strongly-held opinion of Prime Minister Narendra Modi's government about the legislature being the right forum to decide on the issue.

While delivering his judgment Tuesday on marriage equality, Chandrachud said queer and unmarried same-sex couples could jointly adopt a child. He was backed by Justice SK Kaul, who also said India's adoption laws should make room for the rights of queer people. However, the three other judges on the bench opposed the idea, thus slashing hopes of adoption for queer couples.

Sakshi Juneja, founder of Gaysi Family — a media platform and safe zone for queer Indians — called the verdict a "let down."

"We know we will get over it eventually but the very thought of fighting the same fight seems daunting at this moment," Juneja told International Business Times. "What was being asked for, were simple basic human rights. Yet our highest court had it in them to turn us down, and put us back at the mercy of the Union Government, the States and the Parliament ... Right now, all I am able to feel is anger."

In a country where queer people face violence from their own family members, a positive verdict would have allowed them to choose who they consider family and also have the state acknowledge the same, said Don Hasar, co-Founder of the Himachal Queer Foundation.

"The marriage equality verdict was not just about getting married to the person you love but also about the other things that come with it," they said.

A positive verdict would have meant same-sex couples "can open a bank account together, buy things together [and] be each other's nominees. In the event of one partner's death, the other partner decides what to do with the body," Hasar said. "These were the things that were possibly relevant to me, being a trans couple."

"Many of us don't want to follow hetero-normative structures and we often are shunned by our birth families. We have our chosen families and communities," said Mangala Dilip, a queer writer from Bangalore. "This is our lifeline and by refusing to acknowledge this, they have yet again discredited our way of life."

Although the overall judgment was a major blow to the LGBTQ+ community, the judges' comments on homosexuality not being an urban or elitist concept were welcomed.

The SC also directed the government to take measures to sensitize the public about queer rights and ensure that queer people are not discriminated against.

The police were also given directives by Chandrachud, who said, "there shall be no harassment to queer community by summoning them to the police station solely to inquire about their sexual identity."

Chandrachud noted that people of the queer community can't be forced to return to their families or to undergo any hormonal therapy, both of which are problems largely faced by LGBTQ+ Indians today.

Hasar, who worked in the rural areas of the state of Himachal Pradesh, said they often come across cases of discrimination against LGBTQ+ people.

In several instances, family members have gone to the extent of kidnapping queer individuals, and in such cases, the police often sided with the former, Hasar said, drawing from their own personal on-ground experiences.

"Even though the chief justice has mentioned directives to the police, who is going to do the work of sensitizing these authorities? We work in rural regions. It's very different from how things work in urban spaces," they told IBT.

"We have had the Trans Act 2019 since 2019 but even till date, in rural regions, there is no sensitization whatsoever. We have been going door-to-door and talking to people about the act, about the rights," Hasar said.

"Even though there is legal sanction, we need some kind of important work to be done by the government on a socio-cultural level to make sure that the stigmatization" and the "homophobic, transphobic gaze is gone," they added.

During the Tuesday verdict, the bench asked the government to set up a committee to decide the rights of queer couples and consider ways to enable the opening of joint accounts, include a partner's name in official documents and more.

"A committee will take its own course and time to come to any conclusion," said Simmi Nanda, founder of BeUnic, an LGBTQ+ Community driven platform helping entrepreneurs scale their business.

"The road to legalization and legislature is a long one," Nanda added. "The community is preparing to reach out to lawmakers, Members of Parliament and Members of the Legislative Assembly to take it forward in the parliament now."

Many from the LGBTQ+ community shared their feelings of sore disappointment from being "bread-crumbed" in a society that is dominated by conservative values.

"Seeing the social media coverage between today and yesterday, I was genuinely hopeful," a Bengluru-based doctor from the LGBTQ community told IBT. "I truly believed that in today's social climate, a bench of Supreme Court judges would have to see logic and reason and give a positive verdict. But when the verdict turned out to be majorly a 'no,' it really stung."

LGBTQ+ Indians struggle to live open and authentic lives due to traditional family expectations and societal pressures. Hence, for a community still fighting for acceptance in a conservative society, letting the legislature decide on the contentious issue of same-sex marriages leaves LGBTQ+ people with little faith due to the government's anti-queer sentiments.

"The Supreme Court has failed the people of this country. We have been bread-crumbed and left to the mercy of a Government that has made its anti-queer stance very clear," said a queer wildlife conservationist from the city of Pune. "We are not equal citizens in this country but instead reduced to lessers begging for simple, every-day privileges that heterosexual citizens rightfully enjoy."

"The way the verdict was worded sounded like the SC didn't want to take the onus of spearheading this change and very conveniently put the onus on the Parliament, which won't be doing anything about this issue given the current right-wing majority," said a 31-year-old queer illustrator from the state of Gujarat.

Some LGBTQ+ individuals say the verdict isn't about allowing marriage to be on the cards for an Indian homosexual; it has more to do with being seen equally in the eyes of the law, just like a heterosexual person.

"While marriage is a cisgender-heteronormative concept and I personally don't care for it, I know that many in the community do want to get married. Some want kids too. It's heartbreaking to know it's going to take them even more time for these dreams to come true," the illustrator added.

"Marriage is certainly not an item of priority for queer people living in the margins of India's traditionalist society. Ask any queer person you know- if you even know an out-and-proud one that is," said a marketing professional from the LGBTQ+ community, reflecting on the dearth of Indians who are open about their sexuality.

" ... There seems to be no light at the end of the tunnel for India's queer people, and this is regardless of the governing political party at the center," she added.

"For me, personally, it was more than getting married. It was all the other important benefits that should be normal," Hasar also said about the verdict.