Man, I feel like a woman: Can gender debate be kept away from same-sex marriage discourse?

On April 18, as a five-member bench of the Supreme Court began hearing the matter of same-sex marriage, Chief Justice of India DY Chandrachud told Solicitor General Tushar Mehta that the latter was passing a “value judgment” in saying that the very notion of a biological man is absolute, or the notion of a biological woman is absolute.

A visibly flummoxed SG, interjected saying, “A biological man means a biological man, it is not a question of notion.”

The CJI said, “Of course, it is. There is no absolute concept of a man or an absolute concept of a woman at all.”

For a few seconds, the SG seemed at a loss of words. He then spoke more assertively. “Biological man means man only. It means matlab biological man.”

The CJI tried to explain. “A biological man is not a question of what your genitals are. It’s far more complex. That’s the point,” he said.

For the uninitiated, SG, representing the Centre in the case, was contending that acceptance of societal relationships (referring to marriage) is never dependent on court pronouncements. It comes only from within and that even the legislative intent of the Special Marriage Act has been “relationship between a biological male and a biological female”.

The Centre has maintained that the matter should be settled in Parliament not pronounced in a court of law.

The court is nevertheless hearing the matter. It was during this hearing that CJI Chandrachud asked about what is the canvas that petitioners in the same-sex marriage case are looking to open. Senior advocate Kapil Sibal, who is appearing in the case for Jamiat Ulema-i-Hind, said, “There are also issues of personal law — adoption, succession, several issues that arise and that is the canvas your lordships should be looking at.”
He added that the court should either go into everything or nothing and not examine the issue “piecemeal”, leaving confusion in its wake.

Supreme Court Chief Justice DY Chandrachud and SG Tushar Mehta argue during the #SameSexMarriage case#SupremeCourtofIndia #SupremeCourt pic.twitter.com/M2DrMKsdaK

— Bar & Bench (@barandbench) April 27, 2023

But can issues of adoption, succession or custody of children in cases of divorce be decided upon by a court without a complete understanding of genders?

The gender bender

A few days after the SG found himself unable to explain the concept of a ‘biological man’, repeating ‘a biological man is a biological man’, he returned better prepared.

Mehta, on April 26, said, “A person who does not identify with any gender is called agender, genderless, and there are people who change gender as per surroundings… Then there is gender change as per mood swings… there is amicagender where gender changes as per friends they have, anogender where gender identity fades in and out with intensity and comes back with another gender identity.”

Having being accused of passing a value judgement on April 18, the SG said, “These are facts without value judgment. Will it be prudent to lay down regulations even if the court gives them the status of marriage? This is inconceivable.”

Same-sex marriage is just one among the myriad issues that concern gender. Just when some thought that the debate over gender and sex is settled – with genitals determining sex and gender being determined by behaviour and how one choses to identify themselves – the debate over the rights of people in their gendered identities is gaining momentum.

There are talks in the world about the rights of ‘men who menstruate’ alongside women. In March this year, a ‘man’ delivered a baby in Kerala. Zahad, an accountant from

Thiruvananthapuram, welcomed the baby with his partner Ziya, a classical dancer. In sports too, the debate on gender is raging.

There are talks about moving to a gender-neutral society where whether one is a man, or woman, or agender, or amicagender, or anogender, does not matter in determining their rights.

So, should India use the opportunity to open up the debate on gender? Some believe focusing on the gender debate at this juncture would be counterproductive to the same-sex marriage issue.

“The gender debate is critical, and I have been part of the discourse for almost a decade. In my early 20s, I participated in a campaign against Gender-Based Violence called Must Bol. In my individual capacity, I reached out to many young college students to talk about gender norms and dismantle roles and expectations attached to body and gender. So, it is not that the debate about gender is new in the public sphere or in academic discourse,” Nandan Singh Latwal, a Delhi-based Audiovisual consultant, who identifies himself as (a) queer person, told The Federal.

“However, just focusing on a debate in and around gender at this juncture will put a pause on the dissemination of rights for LGBTQIA++ couples who are seeing a right to marry,” he adds.

“I personally don’t believe in the institution of marriage, but I stand for the rights of those who want to enter the institution irrespective of their gender identities,” Latwal says.

But is the time right for society to talk about same-sex marriage?

Feminist writer, publisher, activist and co-founder of Kali for Women, Urvashi Butalia, says those raising such questions are afraid of change.

“It is not right to say ‘whether it is the right time or not’. Who will decide when is the right time? For change to come, for people to get their just rights, the time is always right. Such arguments are made by people who want to stand in the way of change. Just because someone is afraid of change, you cannot stop change,” Butalia tells The Federal.

Butalia doesn’t think the issue of same-sex marriage should be left to drag on in Parliament too.

“Marriage is not just a legal bond. It is about love, emotion and affiliations too. Why should same-sex couples not be allowed to share the same bonds like heterosexuals. They are only sanctifying the institution of marriage. How can anyone stop them,” she says.

Butalia says the canvas that opens as a result of allowing same-sex marriages should be dealt with as and when issues arise. “We can’t tell someone that they can’t marry because we don’t know how they will be able to adopt children. Or, how will they claim custody of children in case they decide to separate. That can be decided as and when the issue arises,” she says.

A Delhi University professor, who wishes to remain anonymous, agrees with Butalia on staring the debate but differs on the route it should take. She argues that Parliament, not judiciary, should be the place for opening up the debate.

“It is indeed the right time to discuss this issue. A ‘New India’ will have newer debates on its plate, and we should be open to that. That being said, we need to talk first and legalise later through the legislature,” she says.

She believes that the society is moving towards a gender-neutral future.

“We are moving towards a gender neutral future, slowly but surely. The society, its relations and institutions, (including sports and prisons) as we know them today are going to change – and not just because of the gender debate but also because of disruptors like science and technology. We don’t know what shape they will take, so we need to work on an elaborate blueprint for this future,” the DU professor tells The Federal.

Butalia too believes that there is no telling what shape this debate could take.

“I can’t say what shape this debate would take. What will happen to sports or how will inmates be segregated in prisons. We are entering into a realm that we didn’t allow ourselves to see and understand for so long. As we make progress towards a gender-neutral society, we all might be massively confused. Some may feel lost. At the same time, we may come face to face with our ambivalences because we only think in terms of binaries. It is both scary and exciting because no one knows what lies at the other end. But I am sure this moment offers great potential to open up,” Butalia says.

Not everyone sees this as an exciting time.

“If we are going to talk about gender neutrality and letting out sporting arenas and prisons and restrooms become open to all, we are in fact going to open up the doors to a lot of problems. There can be so much misuse of such a system. And I think the biggest sufferers here would be the cis women. They have fought hard to come out and claim their space in society. You cannot just open up everything to everyone without weighing in on the consequences,” says Advocate Reena*, an intervener in the same-sex marriage case.

“The system of marriage too is a function of an evolutionary process. The society arrived at this system as it evolved. The laws, whether codified or uncodified, that guide marriage today in India have been framed with an understanding of the Indian society through public participation. An aspect that concerns society cannot be decided upon without including the society.”

“In the US, same-sex marriage is said to have been legalised through a ruling of a 9-judge bench. But four judges on that bench dissented and only five were in favour. So, technically, it is one judge whose voice made the difference,” she says.

Reena contends that while it fine for people to express their sexuality and be what they want to be, “why are we trying to propagate the message that one should aspire to be gender neutral?”

“Using gender-neutral pronouns for everyone can reduce instances of misgendering, but it also reduces opportunities to acknowledge gender identity. Why do we want to do that?” she asks.

A Supreme Court advocate, who wants to remain anonymous for the story, says, “This is Privileged Discrimination. We are sort of saying it is important for the society to become gender neutral quickly and not focusing on the impact it could have.”

“We cannot just talk about giving away rights based on gender without considering the biological sex part of a person. The issue of same-sex marriage will make children in such arrangements vulnerable and confused. This is dangerous not just for the child, but the society as a whole,” she says.

“We have biology that provides an empirical proof that only biological man and biological woman can procreate. The family unit includes a husband, a wife and children which means a biological man as a ‘husband’, a biological woman as a ‘wife’ and the children born out of the union between the two. What is the need to cause a disruption in this order?”

“If same-sex people want to stay together, they can, but why insist on marriage? As far as rights are concerned, a law can be made, which recognises that same-sex people in union can have inheritance or property rights, but why disturb the existing order,” the SC advocate says.

But National Council for Transgender Person member Reshma Prasad objects to sex being used as the sole determinant for identities. “The government’s use of biological man and biological woman in its arguments is problematic. It goes against the spirit of the Transgender Persons (Protection of Rights) Act, 2019. It is sad that there is no understanding of transgender rights in society. It is important therefore to open up the gender and sex debate. There are 72 types of gender identities and 55 types of sexual identities. A lot of people who are part of these identities need protection from violence and exploitation in their relationships. The government needs to protect them. It cannot be done without first acknowledging their existence,” she says.

“We as transgenders, do not therefore accept the term same-sex marriage or homosexuals. We talk about sexual minorities. And only when the society opens up the debate, would it be able to acknowledge why we are saying what we are saying,” Reshma tells The Federal.

“The society is moving towards change and we must therefore ensure that the foundations of this change are solid and can be built upon.”

The DU professor feels the impact of ‘this change’, which is moving towards a gender neutral society, on cis women’s fight for their rights is a critical aspect of the debate.
“This is one of the most important questions of this debate. A knee-jerk decision can undo decades of work and vitiate the safe spaces that have been painstakingly created by cis women. But let us not forget that a gender neutral society will also relieve the pressure on cis women; we just need to figure out the best way to get there,” she says.

We may not know what the best way is till we have started the journey. The same-sex marriage debate and the issues of gender being raised around it could open up the way to undertake that journey.