Two Supreme Courts With Two Very Different Ideas of Gay Rights

To be gay in the US is to feel happy and proud, but why can’t the transnational Indian feel the same at home?

Having spent the first half of my life in India and the second half in the United States, I am often uncertain of which label to use while categorizing myself: Indian-American, an NRI, a first-generation immigrant, a diasporic citizen? This need to inhabit a category took on a renewed urgency since I started teaching American students about India.

Over the past five years, I’ve been spending my summers and winters at my home in Chandigarh conducting research, and returning to my home in Washington DC in fall and spring to teach. I am “transnational” in the conventional definition of the term; I speak multiple languages; I hold US and Overseas Indian citizenships; I have accounts in American and Indian banks; and I’ve dated individuals in both nations (my ex-boyfriend was from Haryana, and my current partner is from Wisconsin).

My loyalties are frequently split, often uncomfortably, down the proverbial bi-national middle. Despite inhabiting these two worlds, I have never wholly belonged to either. Each nation has betrayed me in its own way, denying me my fundamental rights and human dignity and for that my anger and resentment is also mutually apportioned.

Last week marked a shift in that equilibrium towards one of the two nations I call home. Up until last Friday, the American government had treated me like a second-class citizen, refusing me the rights that my siblings took for granted: the right to marry and build a family with the person we love. Despite a sizeable and very vocal opposition to same-sex marriage, the Supreme Court of the United States (SCOTUS) ruled in favor of marriage equality, privileging minority rights over populist sentiments.

Citing the 14th amendment that guarantees equal protection under the law, Justice Anthony Kennedy called marriage a fundamental right grounded in the clauses of the constitution that protect liberty and equality, the most sacred of American values. The five justices who authored the majority decision paved the way forward for future amendments of a legal system that discriminates against minorities, no matter how small. The SCOTUS’s decision enshrined, once again, the fundamental principle about free and fair societies that rights are granted by nation’s constitution, not voted by its citizenry.

All citizens in a democracy are entitled to the same rights. Reverberation of this victory for marriage equality will no doubt resonate far beyond the LGBTQ community. On Friday, love certainly won the day but so did principles of justice and equality we cherish so deeply.

Going home a bit depressed

Alas my cheerful disposition and renewed sense of faith in principles of law and justice were short lived as I started preparing for my bi-annual journey back to the motherland later this summer. Unlike the SCOTUS, Justices who comprise the Supreme Court of India (SCI) in December of 2013 ruled that I (along with nearly 25 millions other Indians) ought to be persecuted for my desires, punishable with imprisonment from ten years to life. Based on even the most conservative estimates on diversity in sexual preference, at least 2% of human being worldwide are almost exclusively attracted to individuals of the same gender, placing India’s LGBTQ population at around 25 million.

SCI’s justification to overturn the Delhi High Court’s judgment, referring to LGBTQ Indians as an inconsequential “miniscule fraction,” hence not worthy of equal rights and human dignity, felt like a slap in the face, the sharpness of its sting reignited in the aftermath of the SCOTUS decision. Whereas despite a vocal opposition and fear of conservative backlash the SCOTUS bravely upheld the principles of democracy enshrined in the American constitution, SCI took the cowardly way out and gave into populist sentiments and political pressure, betraying its citizenry and failing its commitment to uphold the values of equality enshrined within the Indian constitution.

It would be easy to simply walk away; renounce my Indian citizenship, sever my ties with the country of my birth, give up on the idea of ‘mera-bharat-mahaan’ (‘my India the great’) I cherished growing up. Many Indians living the United States, my family included, have already done that to some degree. Most Indians I meet in the US (gay and straight alike) harbor a sense of pessimism, the ‘Kuch nahi hoga!’ (‘Nothing will come of it’) attitude towards the nation they abandoned, perhaps as a justification for having left.

Amid the endemic corruption, the nepotism, and hunger for power and influence, the subject of human rights and more specifically the rights of a minority like LGBTQ Indians seem to cascade further down the list of issues Indian government and the SCI are willing to broach. It’s easy to conclude that India is hopeless. This sense of despair is seductive, and at times I find myself giving into it allure.

Yet each time I return, I meet individuals who against the odds have devoted themselves to the idea of a greater and a better India. Individuals like Dhananjay Chauhan, a social worker and gay rights activist from a working-class family who with little outside support and limited financial resources has managed to establish Saksham Trust, a Chandigarh-based NGO providing resources to LGBTQ Indians across Punjab and Haryana. For the past three years, Dhananjay, his proud family, and his colleagues have organized Chandigarh’s Gay Pride march, steadily growing numbers and visibility in a small conservative town where hearts and mind are often resistant to such change.

Perhaps these individuals don’t have other options, they cannot afford to leave the country of their birth to seek a better life elsewhere. Regardless their dogged determination to demand equality and dignity in the face of inconceivable adversities exemplifies the virtues upon which the idea of India was conceived. I am also inspired to see that similar movements are starting all across the country, no longer limited to urban metropolises like Delhi and Mumbai.

Uncommon courage of some Indians

The courage demonstrated by individuals like Dhananjay strengthens my resolve to keep working, keep fighting, and keep demanding change. These irruptions are also emblematic of the course charted by American LGBTQ pioneers and activist over the past five decades that culminated into the SCOTUS victory. History of gay rights in the US is marred with structural violence, bruising defeats, unbearable losses, and an unwavering perseverance that led us to this destination.

I have no doubt that the sacrifices of previous generation, which made this victory possible will continue to inspire future generation of activist and advocates. While the struggle for marriage equality in the US is officially over, many more frontiers (workplace discrimination, transgender rights, comprehensive sex education, access to adequate healthcare) remain uncharted.

Instead of giving into the pessimism in light of the SCOTUS’s ruling, I hope Indians (both gay and straight) are inspired by the American struggle for equality in the aggregate. While same-sex marriage seems like a distant dream for most LGBTQ Indians, the American example unequivocally demonstrates that it is not an unattainable one. As for me, the SCOTUS ruling gave me my first real taste of equality and freedom, and I’ve relished its every sweet sip. Now I want more!

I am returning to India with a renewed commitment to fighting for justice and equality. Indian Government and the SCI might disregard our demands for now, but as the strength of our movement grows and our voice grow louder, it will eventually have to confront the same fundamental questions about liberty and equality that the SCOTUS ruling elucidated. Indian Government and the SCI cannot keep denying our right to love who we want, and to choose not only our biological, but in the words of Anna Madrigal (the wise sage of Tales of the City) our “logical” families.

Harjant Gill is an assistant professor of anthropology at Towson University, Maryland. His latest film, Mardistan (Macholand) , is an exploration of Indian manhood focusing on issues of sexual violence, son-preference and homophobia.