Day 5 Of Same-Sex Marriage Hearing: 'Laws Needs To Have Gender-Neutral Reading'

Day 5 Of the Supreme Court hearing marked the end of arguments on the same-sex marriage petitions and the beginning of the arguments made by the Centre.

The arguments for the same-sex marriage petitions were concluded today by Advocates Karuna Nundy, Arundhati Katju, Amritanand Chakroborty, Shivam Singh, Manu Shrinath, Jaideep Gupta, Thulasi Raj, and Tanushree Bhalla.

Day 5 of the Supreme Court hearing saw the counsels for the petitioners of same-sex marriage advocate for a gender-inclusive reading in the Special Marriage and Foreign Marriage Act. Furthermore, they proposed that a third gender be incorporated during a gender-neutral reading of the word 'spouses'. The latter was acknowledged by the CJI.

The third gender is meant to be inclusive of the transpersons category. Transpersons today are viewed as wives and husbands when they enter a matrimonial relationship post-gender reassignment surgery.

Advocate Bhalla argued for the word cisgender, transgender and intersex persons to be included in a gender-neutral reading of the acts. Additionally, she argued for intersex persons who identify as a wife also be incorporated in the gender-neutral reading. She also argued for impotent married couples to stay together should they wish to after a year of cohabitation with proven impotency.

Advocate Gupta brought forward that queer persons are forced to undergo conversion therapies and are also forced into heterosexual marriages. He argued that such practices needed interruption.

Day 5 Of Same-Sex Marriage Hearing

Advocate Chakroborty appeared for a petitioner who jointly holds the guardianship of a child with his spouse in Denmark but is denied the same rights here as they are not a heterosexual couple.

Chakraborty argued that it is not fair for a child to be denied the protection of parents jointly just because parents might have a different sexual orientation. The child is being deprived of their family in the process.

The Solicitor General Tushar Mehta made his appearance for the Union Of India speaking against same-sex marriage hearings post-lunch hours on day 5 of the Supreme Court hearing.

SG Mehta made a strong argument opposing same-sex marriages. He argued against queer persons as their genders changed with mood, surroundings, and company as per his sources. Thus the law could not be built to incorporate a whimsical category as per his arguments today. He also went to the extent of giving the example of Dobbs v. Jackson Women's Health Organisation which granted him the CJI's displeasure. In Dobbs's case, the US Supreme Court had left women bereft of any bodily agency. India on the other hand, has made progress in the opposite direction by granting unmarried mothers bodily autonomy to access abortion.

SG Mehta stated that for any societally complex issues, it should be the legislature who should be hearing the matter. The CJI countered that by that measure every other important societal issue would need to be avoided by the judiciary starting from hearings like Maneka Gandhi to Shayara Bano.

The CJI pointed out during the ending of the day's hearing that some countries like Latvia gave the legislature three months to enact a law. When there are no laws the judgements are made by the judiciary holds.

Suggested Reading: Lavender Marriages And Brain Drain: Day 4 Of Supreme Court’s Same-Sex Marriage Hearing