Members of the LGBTQ community participate in a pride parade in Mumbai.
Credit: PTI Photo
Queer rights are enmeshed in a complex tapestry of laws that span ideologies, geographies, and political systems — and are shaped by a confluence of multiple factors, including, but not limited to, religion, culture, and politics. If queer rights were truly a “Western phenomenon”, how do we explain the recent efforts by the Donald Trump administration in the United States to erase transgender identity from federal law? This is the same administration that, in its first term, expressed support for gay rights but has now changed course — not only by labelling gender as a binary construct but also by scrapping all federal diversity, equity, and inclusion (DEI) programmes, including those centered on advancing queer inclusion.
Just three days after Trump signed his executive order on transgender rights, Thailand made history for other reasons — it became the first Southeast Asian country to recognise same-sex marriage officially. Thailand follows the lead of two other regions in Asia — Nepal and Taiwan — to legally recognise same-sex marriage. India came close to achieving this distinction in 2023, but instead, its Supreme Court ruled against the queer community in the much-publicised Supriyo case, stating that the Constitution of India did not recognise the “fundamental right to marry” and that the power to recognise queer marriages lay with the legislature, not the judiciary.
However, what the court did clarify in its judgement was the fact that the phenomenon of queer marriages (and by extension, queerness itself) was not a “Western” construct. “It is evident that it is not queerness which is of foreign origin but that many shades of prejudice in India are remnants of a colonial past,” wrote the former Chief Justice of India, D Y Chandrachud in his minority opinion in Supriyo.
Interestingly enough, India recognised the “third gender” more than a decade ago (in 2014), and in 2019, passed a national law expanding the statutory protections available to the transgender community. While this law was widely criticised by the transgender community for being inadequate (and rightfully so), it is still light years ahead of where the United States is today.
Thailand, too, still does not officially recognise the full gamut of transgender people's rights, but both Thailand and the United States recognise same-sex marriage, while India does not. If this doesn’t sound complicated enough, it gets better: Pakistan, a country that centres religion in lawmaking, has strict prohibitions against homosexuality and continues to criminalise consensual same-sex activity, yet guarantees equal rights to transgender people since 2012 (through a Supreme Court judgement, Muhammad Aslam Khaki and others vs SSP (Operations) Rawalpindi and others).
What this demonstrates is that queer rights are enmeshed in a complex tapestry of laws that span ideologies, geographies, and political systems — and are shaped by a confluence of multiple factors, including, but not limited to, religion, culture, and politics.
In juxtaposing the recent developments in Thailand with those in the United States — two countries with significantly different political systems and legal frameworks — we see that any argument asserting the recognition (or lack thereof) of specific rights for sections of the queer community, based on the mythical “East vs West” hemispherical divide, must be critically questioned. Thailand is a civil law jurisdiction with a constitutional monarchy system, in which the King is the official head of state. The United States, on the other hand, is a common law jurisdiction following a federal republican model of governance, with an elected president as its head of state. Yet, both countries agree that marriage equality ought to be the law of their respective lands. How come?
Noted anthropologist Emiko Ohnuki-Tierney writes in her essay Against ‘Hybridity’: Culture as Historical Processes, that the East-West dichotomy is a “useless and false” concept rooted in a nineteenth-century Eurocentric view that regarded the “West” as superior and the “East” as inferior. It seems that these arguments are being repackaged in India today to assert that certain cultural identities — such as queer marriages — are “Western” to Indians and are, therefore, antithetical to modern-day Indian sensibilities. But this could not be further from the truth. After all, queer issues are not treated uniformly in either the “East” or the “West”. So, to say that queer rights are exclusively “Western” can simply not be true. Yet even if we do accept the “East” versus “West” argument, then shouldn’t the “West,” led by the United States, be at the forefront of advancing transgender rights? The US government and its Supreme Court have, over the years, done the opposite — chipping away at several other significant rights, such as the right to abortion, affirmative action policies, and now DEI policies — rights that many of us here in India take for granted. By comparison, India has a solid legal framework protecting women’s right to abortion and has enshrined affirmative action in its constitution. And even though the Supreme Court ruled against the queer community in Supriyo, in the months since, the central government has appointed a high-level committee (called the “Supriyo Committee”) to look into the concerns of the queer community and formulate policies to address them. No such comparable committee for advancing transgender rights can be imagined under the
current Trump presidency.
Yet in no way does this imply that India, Thailand, or the so-called “Eastern bloc” is on the cusp of advancing queer rights. Pakistan, for example, has also recently rolled back transgender rights. In 2023, the Federal Shariat Court struck down a provision of Pakistan’s Transgender Persons (Protection of Rights) Act, 2018, which had previously allowed transgender people to change their gender markers on official documents to match their gender identities. Similarly, journalist Emmy Sasipornkarn who reported on Thailand’s same-sex marriage law writes about her skepticism regarding its potential spillover effect across the rest of Asia. Sasipornkarn notes that other countries in the region continue to deny equal marriage rights to gay people, despite varying levels of public support. According to Sasipornkarn, Vietnam has the highest level of public support for same-sex marriage in Southeast Asia, yet refuses to recognise it by law. Therefore, India can play a critical role in fostering change by ensuring that the existing rights of transgender people are not watered down and that the full panoply of rights currently available to heterosexual couples is extended to those in queer relationships.
(The author is a communications manager at Nyaaya, the Vidhi Centre for Legal Policy and can be reached at sahgalkanav@gmail.com)