*by Y. Leela Krishna Reddy and Saachi Minocha.
“Sometimes, by upholding equal rights for a few, courts necessarily must require others to forebear some prior conduct or restrain some personal instinct. Here, that would not seem to be the case. Assuring equal protection for same-sex couples does not diminish the freedom of others to any degree. Thus, same-sex couples’ right to marry seems to be a uniquely ‘free’ constitutional right. Hopefully, even those opposed to or uncertain about same-sex marriage will see it that way in the future.”
- US District Judge John Heyburn, Timothy Love v. Steve Beshear
Introduction
Rights for the LGBTQ+ community are not merely about the right to exist in private spaces but about the freedom to be visible, to live authentically, and to have one's love and identity recognized in the public sphere. Although the legal recognition of same-sex marriage is but a part of the broader movement towards the full legal recognition of queer individuals as equal human beings, it is a vital step in dismantling centuries of systemic exclusion and discrimination. Marriage as a social institution not only grants same-sex couples visibility and personal fulfilment but also grants a host of rights that flow from the legal recognition of marriage such as inheritance, adoption, spousal benefits, and medical decision-making rights.
The global movement towards legal recognition of same-sex marriage has gained significant momentum in recent decades. Initially spearheaded by Western countries, the movement began with the Netherlands, which became the first country to legalize same-sex marriage in 2001. Since then, numerous countries across Europe, the Americas, and parts of Oceania have followed suit. Despite the progress, many regions, including large parts of Africa, the Middle East, and Asia, have been slower in embracing these changes due to cultural, religious, and political opposition. In South East Asia, the movement toward same-sex marriage has seen a more gradual and uneven trajectory. India does not currently recognize same-sex marriages, as marriage is traditionally defined under Indian law as a union between a man and a woman. The landmark judgment of Navtej Singh Johar v. Union of India (2018) decriminalized homosexuality by striking down Section 377 of the Indian Penal Code to the extent that it criminalized consensual same-sex relationships. While this was celebrated as a significant step for LGBTQ+ rights in India, this decriminalization did not extend to the recognition of same-sex marriages and there has been no progress in over half a decade. On the other hand, Thailand has emerged as a leader in LGBTQ+ rights within the region by making significant strides toward the legal recognition of same-sex relationships.
Thailand’s Progressive Step: Legalisation of Same-Sex Marriage
“Today love triumphed over prejudice, after fighting for more than 20 years. Today we can say that this country has marriage equality.”
- Plaifah Kyoka Shodladd, Member of the Parliamentary Committee on Same-Sex Marriage
For decades, Thailand has been perceived as a relative haven for LGBTQ+ individuals in Southeast Asia, known for its vibrant queer culture and general atmosphere of tolerance. However, this social acceptance has long stood in contrast to the lack of legal recognition for same-sex partnerships. The struggle for marriage equality in Thailand spans over two decades, marked by persistent activism and political advocacy.
A major setback occurred in 2020 when the Constitutional Court upheld the definition of marriage as exclusively between a man and a woman. Nevertheless, activists continued their campaign, gradually building support among lawmakers and the public. This persistent effort finally bore fruit in 2024 with a series of legislative victories. On March 27, 2024 Thailand's House of Representatives passed a marriage equality bill with overwhelming support. The Senate approved the final reading of the law on June 18, 2024 with 130 out of 152 senators voting in favor. The historic process culminated on October 13, 2024, as King Maha Vajiralongkorn signed the bill into law, setting January 22, 2025, as its effective date.
The new legislation marks a significant departure from previous laws. It redefines marriage as a partnership between two individuals, replacing gender-specific terms with inclusive language. This law finally aligns the Thai law with societal acceptance and allows same-sex couples to enjoy full legal, financial, and medical rights, including the ability to adopt children, inherit property, and make medical decisions for incapacitated partners.
India’s tryst with the recognition of same-sex marriage
“All queer persons have the right to choose their partners. But the State cannot be obligated to recognize the bouquet of rights flowing from such a Union. We disagree with the CJI on this aspect.”
- Justice Ravindra Bhatt, Supriyo @ Supriya v. Union of India
The Supriyo @ Supriya v. Union of India (hereinafter ‘Supriyo’) judgement is the latest landmark Supreme Court [“SC”] judgment in India on the issue of same-sex marriage. While the court recognized the dignity of LGBTQ+ individuals and rejected the notion that queerness is unnatural or confined to urban areas, it ultimately refrained from legalizing same-sex marriage. The venerable judges stated that a gender-neutral interpretation of the Special Marriage Act may not be equitable and could result in women being exposed to vulnerabilities in an unintended manner. The Supreme Court, in refusing to recognise the fundamental right to marry has established a position contrary to international human rights law, particularly Article 16(1) of the International Declaration of Human Rights and Article 23(2) read with Article 26 of the International Covenant on Civil and Political Rights that guarantee all men and women the right to marry and a found family (see as argued here).
While the court recognised that denial of the right to marry to queer couples would ultimately also result in a denial of benefits such as a PF, ESI, pension etc to same-sex couples which has an adverse and discriminatory effect, Justice Bhat opined that these concerns can be addressed by the parliament through a High-Powered Committee. This deferral of duty to the parliament to address the issues faced by the sexual minorities and the legalization of same-sex marriage is extremely problematic, largely due to the burdens of inertia that exist within the parliament.
As articulated by Rosalind Dixon, legislative bodies often face capacity constraints that hinder them from addressing rights-based claims of minority groups in a timely or prioritized manner. Even when a legislature intends to act constitutionally, the procedural and political realities make it difficult to allocate sufficient attention to claims lacking majoritarian support. In the context of the rights of the LGBTQ+ community, which have historically faced social ostracization and legal exclusion, the court's decision to “pass the baton” to Parliament overlooks the fact that progress in this domain in India has been largely court-driven (see here) unlike Thailand where the legislature took a proactive role.
One remedy that the court could have considered is a Suspended Declaration of Invalidity [“SDI”], a method developed in the Fourie case and used in other jurisdictions to address the issue of same-sex marriage (as argued by several scholars see here, here and here). Through an SDI, the court could have declared the existing legal framework on marriage to be unconstitutional on the grounds of violating equality, while simultaneously giving the legislature a reasonable time frame to amend the law, thus preserving the separation of powers. This approach would allow the necessary parliamentary debate while safeguarding the rights in question. Furthermore, marriage extends beyond simple legal recognition, involving an interconnected web of rights such as maintenance, adoption, and inheritance. Given the interconnectedness of these rights, judicial clarity on how these would apply to same-sex couples is essential, and an SDI would provide breathing space to have discussions and build a structured framework for such considerations.
Parliament in Limbo
“Traditionally, liberty has been understood as an absence of State interference in a person’s right to make choices. However, contemporary scholars have come to the conclusion that the role of the State in perpetuating social prejudices cannot be ignored. In effect, where State does not intervene it automatically allows communities with social and economic capital to exercise dominance over communities who have been historically marginalised.”
- CJI D.Y. Chandrachud while delivering the keynote address on “Identity, the Individual and the State: New Paths to Liberty”
The Supriyo judgment reiterates the principle of strict separation of powers while declining to legally recognise same-sex marriage. The court has clearly delineated that is within the parliament’s purview to make a law on marriage, as it is a statutory right that flows from a legally enforceable customary practice. Subsequently, the central government vide gazette notification dated April 16, 2024, has constituted the Committee to examine measures to prevent discrimination against the queer community in access to goods, services, and social welfare entitlements, ensuring protection from violence, harassment, or coercion, safeguarding queer individuals from involuntary medical treatments and surgeries and any other relevant issues that would empower the queer community.
The government committee has taken several interim measures such as the directions issued by the Department of Food and Public Distribution to states and Union Territories to treat queer partners as part of the same household for ration cards. The Department of Financial Services has clarified that there are no restrictions on queer individuals opening joint bank accounts or nominating their partners. The Ministry of Health and Family Welfare has issued letters to states on LGBTQ+ rights in healthcare, banning conversion therapy, ensuring access to sex reassignment surgery, and sensitizing healthcare staff. It is also developing guidelines for mental health and medical intervention for intersex children.
While these measures address immediate concerns such as access to welfare benefits, healthcare, and protection from discrimination, they fall short of addressing the fundamental issue: the lack of legal recognition of same-sex marriage. By focusing on administrative reforms rather than granting marital rights, the government is sidestepping the central issue of equality for queer couples. Without the legal right to marry, queer individuals remain excluded from crucial protections and privileges, including inheritance rights, spousal benefits, and family rights. The committee’s actions, while a step forward, are ultimately insufficient to guarantee true equality for the LGBTQ+ community.
In this context, the court's reliance on administrative measures and the formation of a committee is not a substitute for robust legal reform. While the committee's initiatives are a positive step, they are ultimately piecemeal solutions that do not address the systemic exclusion queer individuals face due to the lack of marriage equality.
Conclusion
Thailand's progressive leap toward the legal recognition of same-sex marriage offers a beacon of hope for LGBTQIA+ rights across Asia. It demonstrates that, with persistent activism and a responsive legal framework, true marriage equality can be achieved. For India, however, the struggle for same-sex marriage remains fraught with legislative inertia and judicial reluctance. While administrative reforms may address some immediate concerns, they cannot substitute the social and legal recognition that marriage provides. While India's journey towards equality for the LGBTQIA+ community has been slow and with many setbacks, the lessons from Thailand offer a roadmap—one that draws from sustained activism, unwavering commitment to human rights, and boldness in taking a leap towards a gender-neutral understanding of ‘marriage’. By embracing these lessons, India can turn its limp toward progress into a decisive stride, ensuring that equality is not just a promise, but a lived reality for all its citizens.
*Y. Leela Krishna Reddy is a third-year law student pursuing a B.B.A. LL.B (Hons.) at the National Law University, Jodhpur.
*Saachi Minocha is a second-year law student pursuing a B.A. LL.B (Hons.) at the National Law University, Jodhpur.
The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.
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