The California Supreme Court ruled on May 15th that same-sex couples should be permitted to marry, rejecting state marriage laws as discriminatory. The California ruling is considered monumental by virtue of the state's size — 38 million out of a U.S. population of 302 million — and its historic role in the vanguard of the many social and cultural changes that have swept the country since World War II. In San Francisco, the reaction was reported to be jubilant. On 18th May, a popular newspaper daily reports that two women in Tiruvottiyur, Chennai who were very ‘intimate’ had set themselves ablaze, clasped to each other, unable to cope with their relatives’ opposition to their intimacy. There is still a sense of revulsion among the Indian community about accepting several ‘other’ types of human relationships which are gaining legitimacy across the globe. The California judgment was not a one-off dispensation but a culmination of widely held public debates, Supreme Court judgments of various States and of USA and legislative interventions.
The Congress at first took a conservative role. In 1996 it enacted the Defense of Marriage Act ("DOMA") to empower the States to deny the legitimacy of same sex marriages. But the constitutionality of measures denying recognition of same-sex marriage was suspect, especially in light of the U.S. Supreme Court's apparent shift in its consideration of gay and lesbian rights. The Court had earlier found that a state sodomy statute enforced only against homosexuals violated no constitutionally protected rights (Bowers v. Hardwick, 478 U.S. 186, 191 (1986). In contrast, in 1996 in Romer v. Evans, 517 U.S. 620, 623 (1996), the Court found that a state constitutional amendment that barred anti-discrimination measures that protected lesbians and gay men violated the U.S. Constitution's Equal Protection Clause by subjecting one group to a disadvantage that no other group had to suffer. In so doing, the Court took the remarkable step of invoking the landmark dissent in Plessy v. Ferguson (163 U.S. 537, 559 (1896) (Harlan, J., dissenting), in the opening paragraph of its decision: The Constitution "neither knows nor tolerates classes among its citizens." Unheeded then, those words now are understood to state a commitment to the law's neutrality where the rights of persons are at stake. The Court made clear that it would not countenance a legal distinction that raised the "inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected."
These laws have immediate relevance to maintenance rights, claims to custody of children born through donors and surrogates outside the bonds of marriage, rights to succession and all property rights connected with them. We have not had any public debate of any serious nature in this area. Not merely this, another boundary untouched by legislation or public concern has been the rights of transsexuals. A NGO having close links to the ruling establishment appears to have prevailed on the state government to undertake a census of the numbers and needs of the transgender community in Tamil Nadu, The government is also reported to have started work through the Welfare Board for the Transgender community to address the problems of AIDS prevalence among the community and the problems caused by Section 377 (the antisodomy law), IPC. Another problem intimately connected is recognizing their gender status for employment.
There has been no legislative initiative and NGOs have done little to espouse their cause. It is surprising that the affected persons have not complained about the discriminatory practices in the job market through litigation route. The problem lies just here. They have not worked for their rights within the legal system but look for avenues to indulge in humiliating practices. The gender stereotypes are almost accepted as the only communities that deserve social concern, and by our apathy we are derailing large sections of ‘other people’ to take to degrading life styles. There are discriminatory practices employed against so many other people living along the fringes. A private airline company advertising for jobs in India bars entry to persons who have tattoos on any visible part of the body. Any number of advertisements could be shown to make explicit statements of preferences to physical appearances for prospective employees. Perhaps, we need legislation like the Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 or expand the definition of disability to include persons who belong to the above categories as well.
In Part 6 of the ‘Voice Divine’ (Deivathin Kural), Kanchi Paramaacharya, while explaining the subtle meanings of Adi Sankara’s Soundarya Lahari extols the beauty of the Divine Mother, who has profusion of love for all Her children. He recalls at the same breath the example of Ashtavakrar who was ugly but even the Gnanis looked only to him for spiritual guidance for the depth of his learning and felt attracted to him by his beauty of erudition. The ability to love fellow beings brings an intense quality of beauty to the person who can practice it in all forms of interactions. What is love in the context of human relationships is societal concern through legislation in the legal context. The Law Commission of India is recommending a change of law for deleting attempt to suicide as an offence. Will the Law Commission also look into the human rights angle and the need for assimilating people in the fringes into the vortex of legislative concern through non-discriminatory laws?