India’s Supreme Court delivered a disappointing blow to the country’s queer community last week when it ruled against legalizing same-sex marriage in the world’s most populous country—but LGBTQ+ activists are vowing not to back down as they continue to press for equality under the law.
The ruling is a major setback after queer Indians have notched big victories over the past decade, including a court ruling decriminalizing gay sex, numerous rulings affirming the right of queer people to form relationships without harassment from families or police and passage of a landmark law recognizing trans people.
But while the Supreme Court decision contains many grand statements about the importance of queer people’s rights to autonomy and inclusion, in a 3–2 decision, the court stopped short of the plaintiff’s request for the right to legal recognition of same-sex marriage or the right to adopt children.
Reaction to the ruling was swift. Queer activists tore apart the decision’s reasoning on social media. Many expressed disappointment and despair. But others vowed to fight even harder for their rights.
One of the petitioners returned to the court the next day to symbolically exchange rings with his partner.
“It’s like the judges said, ‘We know you are being discriminated against, we know it’s unconstitutional, but there’s nothing we can do about it,’” Rajashree Raju, a board member of the Kerala-based organization Queerala, tells Xtra.
Rohin Bhatt, one of the lawyers who argued for legalization of same-sex marriage, tells Xtra that his team will be asking the court to review its decision, characterizing its approach to marriage as “very, very dangerous.”
“The Supreme Court says that the right to marry is a right that the Parliament can take away or bestow on citizens by law. If that is something that we accept as a legal proposition, tomorrow, Parliament can pass anti-miscegenation laws and they would be validly enforced by the court,” Bhatt says.
The Supreme Court firmly shot down the government’s argument that queerness is a foreign, Western or exclusively urban phenomenon, noting that queerness has always been a part of Indian culture. The Court also affirmed that queer people have a right to be treated equally by the government, although it left it up to the government itself to determine whether and how to recognize queer relationships. The Court also found that India’s 28 states could each legalize same-sex marriage if they so choose.
“They stretched themselves thin to talk about the discrimination queer people go through. It’s all platitudes unless it precipitates into actionable legal rights for the queer community,” Bhatt says. “This judgment is not worth the paper it’s written on.”
Proposed committee called “pinkwashing”
During hearings in April and May this year, the government of India had pledged to set up a committee to examine how best to legalize same-sex couples’ rights. But the government has not announced any plans or timelines to actually do so, and while the court did direct the government to follow through, it has no way of enforcing it.
Queer activists are skeptical of the government’s motives. Bhatt suggests that the committee—hastily suggested by the solicitor-general in court—was nothing more than a tactic to delay the hearings or preempt the court’s judgment.
“Somehow [the committee] has made its way to the final adjudication,” he says. “The government has refused to say what is the mandate of the committee, who will be the members, who will be consulted, what will be the timeline. The government can say we are consulting and nothing comes of it for a few years, and then we have to go back to the court. The committee is pinkwashing the judgment and nothing else.”
Some queer Indians perceive hostility from the ruling Bharatiya Janata Party (BJP) toward queer rights and go so far as to suggest that the government intimidated the court into holding back marriage rights.
“There was an intense political campaign against it,” says Prashanth Gupta, an LGBTQ+ activist from Chennai who has asked to use a pseudonym because of fear of reprisals. “The law minister made almost threatening statements. He said, basically, if five wise men decide to do what is against the will of the people, there might be implications. And then he left it there.”
Law Minister Arjun Ram Meghwal, appointed in May shortly after the Supreme Court heard the marriage case, is a vocal opponent of LGBTQ+ rights, and had previously tabled legislation to criminalize gay sex during the brief period when courts had decriminalized it between 2009 and 2013. (The Supreme Court later finally decriminalized gay sex in 2018.) His appointment was seen by some as a message to the LGBTQ+ community and the courts.
Gupta says that the BJP’s “troll army” weaponized anti-LGBTQ+ talking points imported from the U.S. to mobilize Indians against queer people.
“They were taking stuff off Ben Shapiro and Libs of TikTok,” Gupta says. “They used transphobic comments from the U.S., the slippery slope, right-wing talking points, making women scared of trans women being in women’s bathrooms. People in India weren’t even talking about that before.”
Activists say that online hate speech seems to have gotten worse after the ruling.
“Online hate comments have been increasing,” Raju says. “In the past two days, it’s been the peak, to be honest. It’s been really difficult looking at these comments on online news portals talking about the judgment.”
One activist in Hyderabad said it’s been disheartening to see religious minorities come together to oppose queer rights.
“Hyderabad is famous for religious inclusion and harmony. When it comes to LGBTQ+ issues, it is so agonizing to see the communities come together to fight against us,” says Anil, the founder and president of queer advocacy group Mobbera.
Activists say they will continue to push for their rights through a variety of avenues.
“I think the next steps are sort of on all fronts. In terms of lawyers, to argue for things that are much less than marriage—more simple things like asking for joint bank accounts, joint insurance—and hopefully those judgments will help build up to a stronger legal package,” says Mihir, a queer lawyer from Bangalore, who asked not to use his surname.
But when asked if he thinks the case for equal marriage was filed too soon—if India just wasn’t ready for same-sex marriage—Mihir equivocates.
“I have a lot of queer friends in long-term relationships who can’t wait to get married. One of the petitioners was a lesbian couple and one had a chronic condition during COVID. If anything happened, one of them had no rights in terms of visitation, or in death. The urgency was there. It’s never too soon on a personal level. On the other hand, I understand. The public support wasn’t strong, the jurisprudence wasn’t that strong,” he says.
Although the Supreme Court gave the government clear directions to fight discrimination, including ending police harassment of queer and trans people, Bhatt says the devil is in the details of implementing those directions.
“These directions are not something the court has issued for the first time. Will anything come from this? The answer is no,” he says. “People shouldn’t hold their breath waiting for these directions to manifest themselves into executive actions.”
Queerala has had a court case since 2020 seeking an effective ban on conversion therapy, for example. While the courts have ruled that no one should be forced to undergo conversion therapy—a direction repeated in the Supreme Court’s decision—there is no real enforcement, Raju says.
“That’s why we want a blanket ban,” she says. “Psychiatrists and psychologists practise conversion therapy, but also religious and homeopathic medicine practitioners practise conversion therapy of some kind. The most common practice is to drop queer children in addiction centres, because homosexuality is seen as an addiction by some ignorant practitioners. We want a definition, and also punishments. Unless that’s defined in law, there’s nothing we can do to prevent it.”
Many activists are saying that an important step is to increase visibility of queer people in India, including a recognition of the intersection between queer/trans rights and the rights of other minorities, including racial, religious and caste minorities.
“There has to be a popular culture of the queer rights movement making its presence felt on the streets, in politics, in the media, etc. It’s important that all of us make our presence felt,” Bhatt says.
While queer people have made impressive gains in rights and visibility over the last five years, queer Indians are clear-eyed that the battle for full equality is going to be a long struggle.
“It’s been 75 years since independence that we’ve been fighting for our basic human rights,” Anil says. “Our fight is a little longer than we expected. Our fight will not stop here. Though it is a heartbreaking moment for LGBTQ+ people across the country, the spirit hasn’t gone.”