By Rajiv Shah
Even as the Supreme Court begins hearings in front of a five-judge Constitution bench headed by Chief Justice of India DY Chandrachud on “marriage equality”, and the Bar Council of India (BCI) requesting the Apex Court to leave the issue for “legislative consideration” i.e., to Parliament, as the hearing would be treated as being against the culture and social religious ethos, a civil society report has insisted that “queer and transgender persons ought to be given the right to have a chosen family not defined by marriage, birth or adoption alone.”Based on a closed door testimony of 31 persons – 23 of them Hindus – the report, "Apnon ka Bahut Lagta Hai (Our Own Hurt Us the Most)”, published by the People’s Union for Civil Liberties PUCL and the National Network of LBI (Lesbian, Bisexual, Intersex) Women and Transpersons, explores the lives of queer and trans persons amidst continued invocation of ‘sanskar’ (morality) by the state in defence of heterosexual marriage and family.
It also comes at a time when there is not just “a slew of voices” opposing the right of not just queer and trans persons to “live as they desire”, but existence of extreme forms of “stigma and violence” against them. The panel of experts who heard the testimonies are: Justice (retired) Prabha Sridevan; NGO Dhanak co-founder Asif Iqbal; senior counsel Mihir Desai; feminists Kavita Krishnan, Manjula Pradeep, Paromita Chakravarti and Veena Gowda; and Divya Taneja, who is with the Special Cell for Women and Children, Mumbai.
The report claims, “Nowhere is the tight control by parents, families and, by extension, communities more evident than in the lives of queer and trans persons”, insisting, “The families that are supposed to be spaces of nurture, care and support, turn against their own children (often at very young ages), treat them with utter disregard and violence, and force them to conform to socially accepted ideas of what is ‘normal’ without any regard to the individual’s dignity.”
The testimonies point towards “physical, mental, and emotional” violence “from assigned families”, with queer and trans persons being subjected to “incarceration, starvation, sexual assault”, forced “treatment” by quacks and other so-called healers and mental health professionals, and “persecution across cities and states with the help of police.” Of the 31 who testified, seven are from dominant castes, nine are Dalits, and four are OBCs.
According to the report, “What emerged again and again through the testimonies was the pervasiveness of forced marriage and marital rape, in the lives of queer/ trans people, right from childhood and into adulthood.” It notes, “Marriage becomes an extension of corrective rape, at an age when the person has very little understanding of what marriage means, or how to prevent their husbands from molesting and raping them.”
The report underscores, “Some of the cis women who testified also spoke of being married off as children, at 14, forced to have children, and deal with torture and violence in the marital family for years on end before they could think of a way out of the marriage. This took place as a matter of course, without the natal family necessarily being in the know of their child’s gender identity or sexuality.”
The report says, “The pressure to marry cut across the testimonies from trans men and lesbian/ bisexual/ queer cis women, who together comprised the majority of the testifiers and was shared with the trans woman who testified as well. It also cut across religious and caste backgrounds, especially for the many who came from rural areas or small towns. There was also the standard argument used by families, that a person needed to be married off so as not to jeopardise their other siblings’ marriage prospects or marital harmony.”
It says, “Instead of acting as per the law, the police sided with the family and acted as moral guardians. Consequently, the violence perpetrated by the assigned family intensified, sometimes also encompassing friends, partners and people supporting the queer/trans individual. The testimonies also showed how they colluded with the family despite protection orders from courts.” While the courts may have acted positively in favour of queer and trans people, “the number of few people who have been able to access them is low”.
Given this framework, the report underlines, there is a need to create legally recognised relationship “outside the traditional understanding of marriage and family to support and execute queer and trans persons’ decisions and interests.” This is imperative as state machineries – the police, educational institutions, hospitals, financial institutions – “have failed to perform their duty in protecting and safeguarding rights of queer and transgender persons”, it adds.
Testifiers spoke of constant threats of disinheritance, execution of affidavits to relinquish right to ancestral and family property
The report notes, “We heard voices of persons who despite being treated with inhuman violence were still expected to give their entire or part earnings. Persons who had not lived with their natal families for years not having the right to give their earnings and properties to the ones who they lived with as partners or friends.”
In fact, says the report, testifiers “spoke of constant threats of disinheritance and denial of property rights”, pointing out, “Hindu testifiers were made to execute affidavits relinquishing their right to ancestral and family property. Due to the abuse and violence faced by such queer and trans persons they were not even in a position to contemplate a challenge to the legal validity of such affidavits.”
As for “a Muslim testifier living in an intimate relationship for decades", she was unable to "leave her property to her partner due to restrictions in her personal law. She wanted the option of not having to transfer the property during her lifetime." In fact, "Her partner not being recognised as her family meant she could not gift the property to her partner and would have to pay higher registration fees and taxes if she were to transfer it to her.”
It was also found during the testimonies “that adult individuals are not treated as adult persons with full citizenship by members of the family or state institutions. Many queer and trans persons themselves have been pushed to believe that they have no right to assert their full citizenship. There has to be a clear declaration and understanding that as adult citizens of the country they have every right to assert their identity and legal and constitutional rights.”
The report regrets, “In a context in which societal violence against inter-religious couples is on the rise, and various communities are already pushing to make parental permission a requisite for ‘love marriages’ between consenting adults, relationships which are queer as well or which involve trans persons are seen as even more of a threat and can trigger even greater violence.”
In fact, says the report, testifiers “spoke of constant threats of disinheritance and denial of property rights”, pointing out, “Hindu testifiers were made to execute affidavits relinquishing their right to ancestral and family property. Due to the abuse and violence faced by such queer and trans persons they were not even in a position to contemplate a challenge to the legal validity of such affidavits.”
As for “a Muslim testifier living in an intimate relationship for decades", she was unable to "leave her property to her partner due to restrictions in her personal law. She wanted the option of not having to transfer the property during her lifetime." In fact, "Her partner not being recognised as her family meant she could not gift the property to her partner and would have to pay higher registration fees and taxes if she were to transfer it to her.”
It was also found during the testimonies “that adult individuals are not treated as adult persons with full citizenship by members of the family or state institutions. Many queer and trans persons themselves have been pushed to believe that they have no right to assert their full citizenship. There has to be a clear declaration and understanding that as adult citizens of the country they have every right to assert their identity and legal and constitutional rights.”
The report regrets, “In a context in which societal violence against inter-religious couples is on the rise, and various communities are already pushing to make parental permission a requisite for ‘love marriages’ between consenting adults, relationships which are queer as well or which involve trans persons are seen as even more of a threat and can trigger even greater violence.”
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