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Oct 17, 2023, 4:54am EDT
South Asia
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India’s top court refuses to legalize same-sex marriage, leaving decision to Parliament

A member of the lesbian, gay, bisexual and transgender (LGBT) community reacts on the day of the verdict on same-sex marriage by the Supreme Court in New Delhi, India, October 17, 2023. REUTERS/Anushree Fadnavis
REUTERS/Anushree Fadnavis
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India’s Supreme Court ruled Tuesday that it did not have the power to legalize same-sex marriages, saying any reform would have to come from the country’s Parliament.

The five justices on the bench remained unpersuaded by petitioners’ arguments that India’s Special Marriage Act – a civil marriage law where the state sanctions marriages rather than religion — should also apply to same-sex couples. But the court said that LGBTQ couples have a constitutional right to the benefits enjoyed by heterosexual couples — including the right to adoption — and ordered the creation of a governmental panel to address the other concerns of same-sex couples, like pensions and ration cards.

Activists did see a small win for LGBTQ marriages involving transgender people after the court ruled that these marriages can be considered heterosexual if the two people do not identify of the same sex.

Although a small step forward for LGBTQ rights, the ruling is a victory for Prime Minister Narendra Modi’s Hindu nationalist government, which argued that same-sex marriage is a “Western” and “urbanist” concept that is incompatible with Indian society. 

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During the hearings, the Indian government invoked the U.S. Supreme Court’s overturning of Roe v. Wade to support their argument that the judiciary should not interfere with the legislature. While the Chief Justice of India, D. Y. Chandrachud, acknowledged the limits of judicial power, he rebuffed the government’s lawyers for using the Dobbs case, saying that India has long “debunked” the U.S. Supreme Court’s view that women have no autonomy over their bodies. “We have gone far beyond” that, Chandrachud said. But like the Dobbs case, the petitioners’ arguments also centered on the constitutional right to privacy, when it comes to gender identity under the Indian civil marriage law.

India’s Supreme Court signaled its continued support for transgender recognition during the hearings. The court in 2014 ruled to establish a third, neutral gender in a win for trans rights activists. That legal backing was used by the justices to dismiss the government’s arguments that marriage was the legal recognition of a union between a biological man and woman. “It’s not the question of what your genitals are,” noted the chief justice during oral arguments. “It’s far more complex, that’s the point.”

A Sikh couple’s recent LGBTQ wedding has directly challenged some of India’s marriage provisions. The couple — a woman and a trans man —
had their relationship solemnized in September by a Sikh priest who later said he was unaware of the groom’s transition. Although Sikhism’s governing body condemned the wedding and launched an investigation into the ceremony, authorities have said that there is so far no evidence to suggest that legal religious codes were violated. Law enforcement said that they cannot charge the couple with a felony, but that the couple is ineligible for social benefits and legal protections granted to heterosexual couples.

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