In a Sunday referendum (September 25), Cubans approved gay marriage and adoption overwhelmingly backed by the government that also boosted rights for women, the national election commission said on Monday.More than 3.9 million voters voted to ratify the code (66.9%), while 1.95 million opposed ratification (33%), Alina Balseiro Gutierrez, president of the commission, said on state-run television on Monday. 

“Justice has been done,” Cuban President Miguel Diaz-Canel wrote in a tweet. “It is paying off a debt with several generations of Cuban men and women, whose family projects have been waiting for this law for years,” he said. 

Media reports including one on Reuters explained that the 100-page “family code” legalizes same-sex marriage and civil unions, allows same-sex couples to adopt children, and promotes equal sharing of domestic rights and responsibilities between men and women. An analysis of the preliminary findings of the results from the electoral commission showed 74% of 8.4 million Cubans eligible to vote participated in the Sunday referendum.

Official Twitter accounts showed the room erupting in applause and the president leaning back and smiling at the news. It was the Cuban president himself who led the campaign for the adoption of the code. Sunday’s turnout in the referendum by Cuban standards was relatively modest, and a 33% ‘no’ vote relatively large in the communist-run country, where previous referendums have seen the government position receiving near unanimous approval.

The dissent is an indication of both how Cuba is changing and the current dire economic circumstances, which have seen long power outages and lines for food, medicine and fuel.

Sunday’s vote was also the first of its kind since most residents have had access to the internet, which has let dissenting views spread more widely. 

India and same sex marriage 

As of 2022, same sex marriages are not legally recognised in India by the law though several couples do co-habit together. In the pathbreaking 2018 judgement, Navtej Singh Johar v/s Union of India, the Supreme Court that upheld an earlier landmark judgement of the Delhi High Court de-criminalises homosexuality, also ruled that same sex couples would be granted the basic right of companionship so long as it is consensual, without coercion and force. The issue of legal marriage lies pending in the courts. In 2020, Delhi HC issues notice to Union in a plea to recognise same sex marriage

The court is slated to hear the matter on marriage equality of same sex couples under Hindu Marriage, Special Marriage and Foreign Marriage Act The Delhi High Court has issued a notice to the Union of India in a plea seeking registration of marriage of same sex couples under the Hindu Marriage Act.  The petition was filed by members of the Lesbian Gay Bisexual Transgender+ (LGBT+) community and activists Abhijit Iyer Mitra, Gopi Shankar M, Giti Thadani and G. Oorvasi, as reported by The Hindu. 

The plea submits that under The Hindu Marriage Act, Section 5 clearly lays down that marriage can be performed between ‘any two Hindus’ under the Act. Since the language in the legislation is gender neutral, it should apply to same sex marriages. While there is no statutory bar under the Hindu Marriage Act and Special Marriage Act against gay marriages, they were not being registered throughout the country. “As a result of the same, there are many benefits that would otherwise be available to heterosexual married couples that are not available to them,” the plea added.

Further, the prohibition of same sex marriage on the basis of sexual orientation and gender identity was violative of the principle of equality guaranteed under the Constitution of India, stated the plea citing examples of Australia, Germany, Canada, Spain, South Africa, Brazil and England, where same-sex marriages are legal. Apart from this petition, the High Court noted that two other similar petitions are pending before the court. One petition was filed by two women seeking a direction to be issued to the Marriage Officer, South East Delhi to solemnise their marriage under the Special Marriage Act. The second petition has been moved by two men, who got married in the United States but their marriage registration was denied under the Foreign Marriage Act (FMA) as it excluded same-sex marriages.

Since, the petitions deal with the same issue under the Hindu Marriage Act, Special Marriage Act and Foreign Marriage Act, the court has clubbed the pleas.

Taiwan, became 1st Asian Country to Legalize Gay Marriage (2017) 

In a landmark judgement delivered on May 23, 2017 judges from Taiwan’s Highest Court ruled in favour of Chi Chia-wei, legalizing gay marriage, making the small, island nation the first in Asia and setting a precedent for other Asian countries.

The court has given the country’s parliament two years to amend existing laws or create new ones to ensure equal treatment of individuals with respect to marriage laws.

Back home in India, the Delhi High Court, in the case of Naz Foundation V. Government of NCT Of Delhi And Others, had ruled in favour of the LGBT community in 2009. The Court had asked the Indian parliament to amend laws according to the recommendations of the 172^nd Law Commission of India Report. The report may be read here. Despite this and the 2018 SC judgement, progress has been slow. The LGBT community still suffers from exploitation, discrimination and denunciation.

Just like India, in Taiwan the fight for rights of the LGBT community, is not recent. The issue of same-sex marriage has been a source of contention for decades in Taiwan. The key plaintiff, Chi Chia-wei, a gay-rights activist, has been fighting for gay rights since the 1980s and first sought a gay marriage license 16 years ago according to Focus Taiwan Reports. Chi Chia-wei’s suit claims that the prohibition against same-sex marriage violates the rights guaranteed in the Constitution by Article 7 which declares that all citizens, irrespective of sex, religion, ethnic origin, class or party affiliation, to be equal before the law, and Article 22, which states that all other freedoms and rights of the public that are not detrimental to social order or public welfare are guaranteed under the Constitution.

The obiter dicta of the Grand Justices reflect their liberal, reformist outlook.The Justices called sexual orientation an “immutable characteristic that is resistant to change.” This, in our opinion is the most logical definition of the sexuality of an individual, knowing that it is internal and natural and not an externally developed sentiment. The court further said that, “Allowing single people to have the autonomy to decide whether to marry and whom to marry, is vital to the sound development of personality and safeguarding of human dignity, and therefore is a fundamental right.”

The alliance of Taiwan Religious Groups for the Protection of the Family and representatives from Buddhist, Taoist, Christian and Lamaist groups, rallied against this decision of the Court. However, it was the key campaign issue for President Tsai Ing-wen, who took office one year ago, and the legislature has been weighing a change to Taiwan’s Civil Code.

Taiwan, in 2017, joined 20 other countries from across the world which have legalised same-sex marriage. Netherlands was the first to legalise same-sex marriage(2000), followed by Belgium (2003), Spain and Canada (2005), Finland, Ireland and United States (2015) and now Taiwan (2017). India, certainly has a lot learn from this international reform. The first step in the right direction was taken by the Delhi High Court in 2009 as discussed above, but the Supreme Court took a U-turn in 2013, when it overruled the order of the Delhi High Court. This was then set aside in 2018.

The Supreme Court Judgement may be read here.

Contradiction in Indian law 

While Section 377 of the Indian Penal Code, 1860 criminalised homosexuality primarily on the basis of the form of sexual intercourse till 2009 and then 2018, the Constitution of India – the supreme law of the land, protects and promotes diversity, ensures an egalitarian society where freedom should no longer be a privilege. Although Part III of the Constitution provides certain rights to the citizens, it only covers those citizens who form part of the ‘popular morality’.  The LGBT community does not form part of this ‘popular morality’ and hence is neglected. It is the right of each member of the LGBT community to be treated equally like other citizens, to live with dignity as enshrined in A 15 (1), (2), Part III, Constitution of India. As given, “the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”
 

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The post Large majority ratifies ‘family code’ legalising gay marriage; Cuba appeared first on SabrangIndia.

The court has given the country's parliament two years to amend existing laws or create new ones to ensure equal treatment of individuals with respect to marriage laws.

Back home in India, the Delhi High Court, in the case of Naz Foundation V. Government of NCT Of Delhi And Others, had ruled in favour of the LGBT community in 2009. The Court had asked the Indian parliament to amend laws according to the recommendations of the 172^nd Law Commission of India Report. The report may be read here.Sadly, little has been done in this regard. The LGBT community still suffers from exploitation, discrimination and denunciation. Hopefully, this progressive judgement passed by the Taiwan High Court will motivate the Indian law makers to finally frame laws to protect the preferences and rights of its diverse populace.

Just like India, in Taiwan the fight for rights of the LGBT community, is not recent. The issue of same-sex marriage has been a source of contention for decades in Taiwan. The key plaintiff, Chi Chia-wei, a gay-rights activist, has been fighting for gay rights since the 1980s and first sought a gay marriage license 16 years ago according to Focus Taiwan Reports. Chi Chia-wei’s suit claims that the prohibition against same-sex marriage violates the rights guaranteed in the Constitution by Article 7 which declares that all citizens, irrespective of sex, religion, ethnic origin, class or party affiliation, to be equal before the law, and Article 22, which states that all other freedoms and rights of the public that are not detrimental to social order or public welfare are guaranteed under the Constitution.

The obiter dicta of the Grand Justices reflect their liberal, reformist outlook.The Justices called sexual orientation an "immutable characteristic that is resistant to change." This, in our opinion is the most logical definition of the sexuality of an individual, knowing that it is internal and natural and not an externally developed sentiment. The court further said that, “Allowing single people to have the autonomy to decide whether to marry and whom to marry, is vital to the sound development of personality and safeguarding of human dignity, and therefore is a fundamental right."

The alliance of Taiwan Religious Groups for the Protection of the Family and representatives from Buddhist, Taoist, Christian and Lamaist groups, rallied against this decision of the Court. However, it was the key campaign issue for President Tsai Ing-wen, who took office one year ago, and the legislature has been weighing a change to Taiwan's Civil Code.

Taiwan will now join 20 other countries from across the world which have legalised same-sex marriage. Netherlands was the first to legalise same-sex marriage(2000), followed by Belgium (2003), Spain and Canada (2005), Finland, Ireland and United States (2015) and now Taiwan (2017). India, certainly has a lot learn from this international reform. The first step in the right direction was taken by the Delhi High Court in 2009 as discussed above, but the Supreme Court took a U-turn in 2013, when it overruled the order of the Delhi High Court.

The Supreme Court Judgement may be read here.

What the Indian diaspora fails to understand is that Homosexuality is innate to the Indian culture and has been a part of our multihued heritage. Ancient texts such as Shrutis and Smritis make a mention of the existence of Homosexuals and Trans genders. The Kamasutra, another ancient Indian text makes explicit mention and portrayal of various relations existing between individuals of different as well as same genders. Sculptures and paintings in the Khajurao Temple, Ajanta and Ellora caves are evidence of the deeply rooted connection of homosexuality and Indian heritage.

Quite contrary to this, the ‘progressive’, ‘modern’, Indian society of today considers acts of homosexuals and transgenders as taboo. Accepting the Tibetans and not the Transgenders, allowing communal movements and not LGBT movements, criminalising homosexuality and not marital rape; isn’t this a reflection of the hypocrisy of the Indian polity?

The percentage of the population strongly preferring same-sex, sexual acts and relationships, and thus identifying as lesbian, gay or bisexual, is thought to be somewhere between 1% (a figure generally considered too low) and 10% (a figure generally considered too high). In India 25 lakh individuals have been identified as lesbian, gay or bisexual, as per a report submitted to the Supreme Court in 2012. The irony is, these are only the few who have come out of the closet. The rest, perhaps the majority, still fear the stigma attached hence, do not reveal their sexual orientation and identity. The Indian laws lag behind when compared with the rest of the world as they fail to identify, accept and protect the members of the community.

On the contrary, Section 377 of the Indian Penal Code, 1860 criminalises homosexuality primarily on the basis of the form of sexual intercourse. This is the biggest obstacle in the path to equality. The Constitution of India – the supreme law of the land, protects and promotes diversity, ensures an egalitarian society where freedom should no longer be a privilege. Although Part III of the Constitution provides certain rights to the citizens, it only covers those citizens who form part of the ‘popular morality’.  The LGBT community does not form part of this ‘popular morality’ and hence is neglected. It is the right of each member of the LGBT community to be treated equally like other citizens, to live with dignity as enshrined in A 15 (1), (2), Part III, Constitution of India. As given, “the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”

It is important that the ground of ‘sex’ must include the sexual orientation of the individuals along with the ‘gender’ as these develop over time, differently for every individual depending on the genetical make up. Further, A 19, Part III, Constitution of India, provides certain rights and freedoms to individuals which we are well aware of. Of course, these rights are subject to reasonable restrictions in the interest of the sovereignty and integrity of India and maintenance of public order. The LGBTQ communityis not harming the integrity and sovereignty of India and clearly forms an integral part of our society. At the same time, we know, it may be against the ‘popular morality’ but is not against ‘constitutional morality’ or public order. Then why are those belonging to the LGBT community prevented from taking an apartment on rent or buying a house or property? Why are the queer individuals discriminated against on public forums? Why is it difficult for a transgender to get a white-collar job? Why is a homosexual harassed, treated as an inferior being, abused, exploited, stigmatized? Clearly because the Constitutional interpretations have not expanded so as to include them.

As citizens of India, can’t lesbians, gays, transgenders and bisexuals live their lives with as much freedom as the rest of the Indians? Provisions need to be made to enable these individuals to acquire property, reside in a house, work freely and violations of the same need to be made punishable. A 21, Part III, Constitution of India, states, “No person shall be deprived of his life or personal liberty except according to procedure established by law.”  Though not explicitly, the A 21, does provide Right to Privacy to the citizens of India. Thus, what individuals do in private with consent should not be a crime. If the state does not involve itself in consensual sexual acts of heterosexuals, why should it criminalise consensual sexual acts of homosexuals? S 377, Indian Penal Code, 1860, is a draconian law of the British colonial powers, with a misconception that homosexuals indulge in anal sex which amounts to sodomy. The law fails to take into account, the feeling of mutual love, care and security that partners provide to each other. Thus, if two men find happiness in cohabiting, they should be allowed to do so and S 377 should be amended. A 14, Part III, Constitution of India, provides, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”  This provision is not reflected in the current scenario. Evidence of mass human rights violations of members of the homosexual community is obvious, numerous cases have also been filed. However, little has been done by the police and other authorities to provide protection to the LGBT community. The courts still do not rule in the community’s favour. Thus, the question remains, are the doors of the Courts really open for the LGBT community in India?

Our fight here is not just to decriminalise sexual acts of homosexuals but to ensure that they are provided with the same rights as other citizens of India. We need to fight for their right to marriage, right to procreate or have children, right to work without discrimination, right to consent any and all acts done with partners, right to seek justice in the formal court of law and finally, right to be included and accepted as part of Indian society.

Related Articles:

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Concentration camps’ opened for Gay Men in Chechnya

The post Taiwan, 1st Asian Country to Legalize Gay Marriage, Shouldn’t India Follow Suit? appeared first on SabrangIndia.

Two worlds? Minaret in Brick Lane, East London. Andy Sedg/Flickr, CC BY-NC-ND

Governments in Britain have tended to treat Muslim citizens much like colonial administrations treated their subjects. Intermediaries – tribal leaders or religious figures – are found to establish communication between the empire and its people.

One positive thing about a recent ICM poll of British muslims is that it offers an alternative. The survey, carried out for a Channel 4 documentary, was never going to be able to reflect the complexity of British Muslim life accurately, but it does signal a shift by engaging directly with Muslim citizens.

How poll data is used is one way to test how colonialism’s legacy might linger on. The Daily Mail chose for its headline the quote: “Muslims are not like us and we should just accept that they will not integrate …” while Sky News highlighted that: “Half of British Muslims want homosexuality banned.”

Few media outlets rushed to use the headline that “86% of Muslims feel strong affiliation with UK, higher than the national average", although this too is one of the findings from the survey. It is an “us and them” framework that fails to spark debate about who “we” might be and why “they”, with all their differences, might need greater integration with us, as the report has suggested.

We don’t have space here to discuss how the category Muslim may be broken up across class, regional or ethnic background. Nor will we get into comparisons with others: whether, for instance, British Catholics, or for that matter, members of the Conservative Party, might have similar sentiments towards homosexuality.

Same stop. Same destination? Kamyar Adl/Flickr, CC BY

I want to focus on a more pervasive but implicit idea that allows the obsessive focus on difference. It is what Trevor Philips, the former head of the Equality and Human Rights Commission and presenter of the documentary, has called everyone else’s “centre of gravity”. A key aspect of that is the concept of secularism, which many take to mean the separation of church and state.

State of affairs

There is an underlying assumption that Islam as a religion is uncomfortable with secularism and that Muslims require “integration” to be able to live in secular states. This assumption finds forceful evidence in the desire expressed by 23% of the Muslims polled for some form of sharia law in UK. Critics who claim that Islamic thought and practice is uncomfortable with secularism may be right, but we need to pause and consider first what they mean by secularism. Is it the same thing that many Muslims might be uncomfortable with?

The most common assumption about secularism is that it is a separation of state and religion. This assumes a universal definition of religion as a specific set of ideas and practices that we can separate from other aspects of life. This definition is, of course, a product of a particular social historical context and not one that is universally true.

Part of life. The Koran. Mohammed J/Flickr, CC BY-ND

Colonialism was integral not just to exporting ideas about what constitutes a religion to other parts of the world, but on imposing that vision of religion on societies that did not demarcate the spiritual from the economic, the moral from the political.

Britain, a deeply Christian society right up to the early 1960s and where empire and Christianity were tied closely together in a “civilising mission”, imposed its definitions on its Asian and African colonies, actively reshaping religious practices. It is not widely discussed that the rigid codification of sharia, as well as Hindu practices, was a process started by colonial administration in India in the late 18th century.

In fact, the notion of religion as a compartmentalised aspect of human existence does not mean much for those who think of Islam, not as a set of specific practices or laws, but as a way of life, or “deen”, which has long been wrongly translated as “religion”.

More critically, the definition of secularism as a separation of church and state obscures a key reality. Historically, secularism has actually entailed the increasing control and management of religious thought and practice by the state. It is not a separation, but a relationship in which the state has increasing control.

In his nuanced analysis of secularism and its development within the European context, cultural theorist Talal Asad showed how this led not just to opening up of church property for market circulation, but also to a new closeness. Perhaps it is easiest if we think of secularism as an inversion of a previous relationship in the European context where the Roman Catholic church had extensive control over the state.

Saudi atheism

Within what we call the “Western” experience of secularism are many differences: the American constitution attempts to protect religious practice from heavy state intervention, leading to a highly religious citizenry. The French state has generally carried out very aggressive management of religious practice.

National Front posters in France highlight tension. EPA/CHRISTOPHE PETIT TESSON

Secularism as state management of religion is precisely the aspect that the vast majority of Muslims find alien. On the other hand, Islamists – by definition those who want to take over the state to transform society through their interpretation of Islam – find it an appealing prospect.

Unlike the Catholic church, which forms the bedrock of many European attitudes towards religion, Islamic practice has been fairly decentralised over the last 1,400 years. Sharia has been, for the most part, a set of guidelines rather than a set of laws, enforced not by the state but self-imposed through believers deciding to follow the scholarly opinions of particular muftis.

This self-imposition has allowed Islamic thought and practice much more entrenchment in social and political life. That Islam is not reliant on state imposition is precisely what makes it much more accessible to believers than the structured hierarchy of European churches.

Where states such as in Saudi Arabia have pursued state imposition, the level of disaffection with religious practice is very high. In recent decades, atheism has seen significant growth in the kingdom. So many have declared their atheism that the government last year passed a law against it.

Secularism, apparently a cornerstone of British values, is then something quite different from what mainstream understanding would suggest, as is the relationship of Muslims with it. Insisting on integration, without any questioning of dominant assumptions and beliefs, values and ideas, carries strong echoes of colonialism. How and why the UK’s “centre of gravity” came to be defined through its opposition to Muslims needs to be opened up if this report is to be an exercise in bringing us all together.

(This article was first published on The Conversation.)
 

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