JOIN USRuth Bader Ginsburg: A legacy resonates
The death of Ruth Bader Ginsburg at age 87 when she was serving as a Justice of the Supreme Court has been mourned by those invested in a progressive American constitutionalism. If there is one unbroken thread which defines her legacy both as a Justice of the Supreme Court for over 27 years and her pioneering work as the lawyer for the American Civil Liberties Union’s Women’s Rights Project which she headed, it is her germinal contributions to gender justice.
As a civil liberties lawyer in Frontiero v. Richardson, she argued for the equal treatment of women who served in the military.
In part, it was her brief in this matter which contributed to the judgement where the Supreme Court struck down a law which gave unequal family support to a woman military officer, famously outlawing laws which encoded discrimination ‘rationalised’ by an ‘attitude of “romantic paternalism”; which, in practical effect, put, women, not on a pedestal, but in a cage.’
Ginsberg in Washington
Why is this particular US legal history of fighting gender discrimination of any interest to those of us in India? This history matters because the Indian Supreme Court has generally been open to influences from all parts of the world and US Supreme Court decisions have been cited and then incorporated into Indian law. The key problem faced by LGBT persons even till today is that there is discrimination in educational establishments, access to housing as well as spousal rights. If there is a stereotypical perception of LGBT persons as ‘dirty and animal-like’ it flows from Section 377 of the IPC. If there is a perception that hijras are thieves it flows from the Criminal Tribes Act wherein ‘eunuchs’ were considered a criminal tribe. If there is a perception that LGBT persons intimate relationships are not worthy of respect it flows from the heterosexist stereotypes encoded in marriage laws.
We need to take forward this fight against stereotypical laws (which have real-life effects) which discriminate against LGBT persons and violate the constitutional guarantee of equality and non-discrimination.
The fact that today there are precedents in Indian law to strike down discriminatory laws which encode stereotypical perceptions of LGBT persons, we owe to Ruth Bader Ginsburg’s pioneering legacy.
(The author is a lawyer & writer based in Bengaluru. He is the co-editor of Law like love: Queer perspectives on law.)