Deepika Singh vs. Central Administrative Tribunal and others
A recent Indian Supreme Court ruling has acknowledged the existence of nontraditional partnerships, including same-sex parents, stepparents, single parents, and adoptive parents, and grants such parents equal protection and social benefits under the law.
Previously, the law failed to recognize nontraditional families’ entitlement to parental rights and benefits. The case came before the court after Deepika Singh, a pregnant nurse at the Post Graduate Institute of Medical Education and Research (PGIMER), was denied maternity leave because she had previously taken leave to care for her stepchildren. As per Rule 43 of the Central Civil Services (Leave) Rules, “a female Government servant with less than two surviving children may be granted maternity leave by an authority competent to grant leave.”
Singh, a mother of two stepchildren, was subsequently denied maternity leave for her biological child and filed a claim to challenge the maternity leave law. She first petitioned the Chandigarh branch of the Central Administrative Tribunal (CAT), then moved to the High Court, the head of a state’s judicial administration in India. After both institutions denied her request for maternity leave, Singh appealed to the Indian Supreme Court, the apex court within India’s judicial system. Eventually, the apex court ruled in favor of Singh and observed:
“Familial relationships may take the form of domestic, unmarried partnerships, or queer relationships. These manifestations of love and of families may not be typical, but they are as real as their traditional counterparts. Such atypical manifestations of the family unit are equally deserving not only of protection under the law but also of the benefits available under social welfare legislation.”
This change ensures same-sex parents no longer have to endure prolonged legal battles due to the lack of legal recognition. By extending parental rights and benefits, the law now protects nontraditional parents’ rights to seek paid maternity leave, child custody, and visitation, among other rights. The ruling could drastically affect over 2.5 million people who identified as LGBTQ+, according to a census by the Indian government in 2012.
The apex court’s latest recognition of LGBTQ+ parents, along with a recent series of historical judgments related to LGBTQ+ rights, has awakened hope for more rulings in favor of queer partnership.
LGBT Legal History in India
In 2018, a five-judge Bench in India unanimously overturned Section 377 of the British colonial penal code, which criminalized all sexual acts “against the order of nature.” The law was commonly applied to prosecute same-sex sexual activity. Today, Section 377 remains in effect in several former British colonies—Malaysia, Myanmar, Singapore, Sri Lanka, Pakistan, and Bangladesh—marking the detrimental legacy of British colonialism. However, Singapore has recently announced plans to follow India’s progressive steps. According to Singapore’s Prime Minister Lee Hsien Loong, the government intends to repeal Section 377a to “provide relief to some gay Singaporeans.”
Prior to British colonization, the existence of transgender people was prevalent and publicly acknowledged among India’s hijra communities and Hindu mythology. Hijra often refers to people who were born male but present in traditionally feminine ways. These people have played an important role in Hindu culture for over 2,000 years, performing rituals for the Mother Goddess Bahuchara Mata, Lord Shiva, or both. Hijras have been traditionally treated with a mixture of fear and respect, as they are believed to be endowed with the power to bless or curse.
In the 19th century, British officials attempted to eradicate hijras, whom they deemed a threat to public decency and colonial authority. Hijra communities were labeled as a “criminal tribe” that would instigate public disturbance. Authorities enacted anti-hijra laws to impose compulsory registration and unjustified scrutinization of hijra communities.
Despite the British Empire’s elimination attempt, the hijras survived dark times but suffered from escalating local discrimination due to colonial influences. It wasn’t until 2014 that the Indian Supreme Court decided to legally recognize the existence of the third gender and mandate government agencies to “remove the social stigma, promote transgender-specific health programs, and grant [transgender people] equal legal protection.” However, despite the legal acceptance, many hijras today are still subjected to marginalization, stigmatization, and unemployment.
LGBT Sex Workers
In modern days, hijras have been largely excluded from higher education and the workplace due to rampant discrimination. Consequently, many hijras are forced to subsist on prostitution and other sex work, leading to social stratification.
Research published in 2016 disclosed that a typical hijra sex worker earns only 3,000 rupees (less than 50 dollars) per month (from sex work). Besides low wages, these sex workers also suffer from physical abuse, forced condomless sex, and an increased risk of contracting HIV/STIs.
Despite India’s legal progress in the decriminalization of same-sex activity and recognition of LGBTQ+ partners, employment discrimination and society’s conservative attitudes impose further challenges.
Society’s Conservative View on LGBT Community
Indian society’s attitude toward the LGBTQ+ community is largely skewed toward the conservative side, and a major obstacle for LGBTQ+ Indians is family opposition. A lesbian couple, S Sreeja and Aruna, lived together until Aruna’s mother filed a missing person report. The police took Aruna away, and she was subsequently admitted to a mental institution in Thiruvananthapuram for conversion therapy. In 2018, S Sreeja petitioned the court to live with Aruna. The Kerala High Court ruled in favor of the lesbian couple living together.
This isn’t the only case in which conservative parents have vehemently opposed same-sex relationships and detained their children with possible police intervention. As conversion therapy still exists in India, LGBTQ+ people are subjected to not only external disapproval but also familial disapproval and mistreatment.
The court’s recent landmark decisions indeed herald ongoing transformation, but many family matters are handled outside of the justice system. In addition, discrimination remains rampant in various aspects: employment, housing, adoption, etc. It, therefore, raises the question of whether court decisions, such as decriminalizing homosexuality and recognizing queer parental rights, are principled or pragmatic approaches to addressing inequality. The recent verdicts offer certain levels of protection for LGBTQ+ people, but policymakers need to enact more anti-discriminatory measures to explicitly support people’s equal rights.
Featured Image Source: Los Angeles Times