“Before the law sits a gatekeeper. To this gatekeeper comes a man from the country who asks to gain entry into the law. But the gatekeeper says that he cannot grant him entry at the moment. The man thinks about it and then asks if he will be allowed to come in later on. ‘It is possible,’ says the gatekeeper, ‘but not now’.” [1]

I suppose as queer individuals we have always desired that law recognise and affirm us, as can be seen from the dominant queer struggles urging the reading down of Section 377 or the growing traction within the queer community for gaining marriage equality. The State, which can be compared to the gatekeeper of law, has often rejected us, denied our existence, or worse, persecuted us. However, we have continued to believe in the emancipatory potential of law, hoping that it will come to our rescue if not now, then in the future. Law is often violent – it incarcerates, shames our so-called deviance, and classifies who is worthy and not worthy of gaining access to rights and what kind of rights can be ceded at a particular moment. Yet, we believe we can change the law, make it sensitive to our existence. It is not new to talk about the double-bind of law – its promise of rights and welfare and its violent reality. I believe that many of us are aware that the law does not always affirm the rights we seek or that its gatekeepers, the courts for instance, sometimes fail to enforce the rights that law has finally ceded to us, yet, it would be dishonest to not admit that many like me still desire the benevolence of law. This article is a critical engagement with this desire, where I specifically discuss the relationship between queer women and law.

Prior to analysing the relationship between queer women and law, it is imperative to clarify what I mean when I say ‘queer women’. I am cognisant of the work done by queer theorists like Eve Sedgwick and Judith Butler who have assailed the category of ‘woman’. They not only argue that the distinction between ‘male’ and ‘female’ is culturally constructed, but also that any feminist analysis devoted to analysing gender from the lens of the gender binary is grounded in heterosexist assumptions and helps to naturalise and reinforce heterosexuality. However, as Judith Butler states in her book Gender Trouble (1990), the gender binary is inescapable since we continue to act in ways that adhere to the cultural script of gender. Even subversive practices are constrained by the scripts that are available in the existing cultural framework  Hence, this article focuses on persons who were assigned the gender ‘woman’ at birth, and who are in a same-sex relationship. I use the word queer instead of lesbian and bisexual because of the varieties of sexual experiences, gender expressions and sexual and gender identities that slip through the cracks of these labels.

Ponni Arasu and Priya Thangarajah in their essay, Queer Women and Habeas Corpus in India: The Love that Blinds the Law (2012) tracked the ‘little known story of queer women and law’ amidst the almost exclusive focus of queer movements on Section 377, which was traditionally associated with queer men. Not discounting the symbolic significance of the struggle against Section 377, they offered an analysis of the Habeas Corpus cases involving queer women. Habeas Corpus petitions are a constitutional remedy that can be pursued in a High Court or in the Supreme Court, requesting the court to direct the relevant state authorities or persons to produce the person who is in their alleged illegal custody. Arasu and Thangarajah discuss an interesting set of cases which describes the fraught relationship queer women have with law, where these women use the very same tool of law that has been used against them as an instrument to resist familial oppression. Natal families would file Habeas Corpus cases against their daughters’ women lovers, alleging kidnapping, wrongful confinement or abduction. On the other hand, queer women would file Habeas Corpus cases against the natal family for release of their lovers from the family’s forcible confinement. Habeas Corpus cases are often also filed in matters involving a transman in a relationship with a woman, showing that such relationships are also subject to a patriarchal scrutiny by the natal families. In most of these cases, the courts would declare that adult women have the right to live together if they so wish even before Supreme Court decriminalised homosexuality. However, the courts were never exposed to or they never actually recorded the nature of the relationship between the women. Though there has been a legal debate on the application of Section 377 to women, the disclosure of the romantic relationship between the women risked criminal prosecution or at least the threat of it even if eventually women may not be convicted under Section 377 by a court of law. The outcomes of these cases were mixed. Despite the orders of the courts, families would still separate the couples. Arasu and Thangarajah discuss a case, where the court even rejected a Habeas Corpus petition on the ground that it was filed by a woman unrelated to the woman in the alleged illegal confinement since the language of intimacy between queer women was never articulated in the court. The intimacy was not absent, it was silent.

In 2018, the Supreme Court, while decriminalising homosexuality, affirmed the rights of queer individuals to choose their sexual partner(s). The courts have previously held that adult women have the right to live together. The Supreme Court judgment paved the way for recognising the queer desire between these women. Surabhi Shukla notes this change, where in Habeas Corpus cases, High Courts are acknowledging the romantic relationship between women. However, procedural constraints are placed on women in exercising their right to choose their partner and live with them. Shukla highlights cases where women who are being forcibly separated from their lovers are asked to declare in the court, in the presence of their family, that they wish to stay with their partner who has filed the Habeas Corpus case. Arvind Narrain discusses the family as a site of violence for queer women. Parents file police cases against their daughters’ partners, forcefully separate them, drive them into unhappy heterosexual marriages or abet their suicide. In the backdrop of this reality, it is appalling that the court demands that queer women make the declaration that they desire to live with their romantic partner in the presence of family, when it is the family which is being prosecuted for illegal confinement. The courts, in such cases, are not only unwilling to consider the social reality of queer women, but are also complicit in upholding the patriarchal claims of the family over the body and the lives of women.

Oishik Sircar in his scathing critique of rights as “spectacles”, argues that rights function in a manner where the marginalised repose faith in the emancipatory potential of law, however such abstract rights neither translate to change in reality nor end structural oppression – which in this case is carried out primarily by the institutions of the State and the family, who punish the ‘deviance’ of these women from compulsory heterosexuality. Further, women’s sexuality has always been regulated to maintain caste purity and any threats to it like inter-caste unions have been punished in high-caste society, with the complicity of State institutions. In the case of queer women, they refuse to perform their procreative function of birthing the next generation that can carry forward the caste lineage. They instead choose to engage in sexual activity only for the sake of sexual pleasure, a choice which is at odds with their gendered role in society.

The question that arises is: Why do we continue to trust law even when it betrays us so often? Are we blinded by the “spectacles” of justice as Sircar puts it? Are we just too naive to not see the heterosexist and patriarchal biases of law? Or, is it a strategic choice to pit one oppressive institution against another – family against the State as in Habeas Corpus cases? The latter might be benevolent at times since it claims a certain sensitivity to rights. In a courtroom, the State, the litigant, the defendant and judge, all speak the language of rights and justice. There is a certain uncertainty about the outcome of an encounter such as this, wherein queer women may indeed emerge victorious. Even if they lose, there is value in the contestations that take place in the courtroom, which challenge the homonegativity and paternalism of the State and the family. An outcome – based narrative of cases makes us lose sight of how ordinary queer women contributed in establishing a jurisprudence on the right of adult women to live together and they indeed lived together, even before the highest constitutional court of the country gave a name to their relationship. Hence, litigation is a political practice, where marginalised subjects encounter the State and in the case of queer women, also the family, and put these institutions to the task of defending their homophobic and patriarchal acts. For instance, in a Habeas Corpus case filed by a queer woman for the release of her woman lover, the family has to justify why they chose to forcefully separate the lovers and confine their adult daughter, and the State agencies like the police have to justify their inaction or complicity with the actions of the family. Litigations also embody and foster mobilisation that exist outside the courtroom, and hence legal struggles and political mobilisation are influenced and sometimes spurred on by one another.

The desire for law is then not unwarranted because it is a useful tool in changing or at least challenging the existing relations of power in a society. However, law has a line-drawing function, where recognition of one’s rights is conditional upon whether one has been recognised as a worthy subject. Indeed, law has increasingly recognised the romantic relationships between queer women; however, is it willing to acknowledge friendships and other forms of solidarity within the queer community? For instance, as a member of the queer community, can I demand release of a queer woman from the forcible confines of her family? This will require us to think of intimacy beyond the confines of sexual relationships and queer marriage, and recognise the intimacy that exists between us, as queer individuals, struggling against a heteronormative order. Perhaps, it is also necessary to think of politics beyond the confines of law which can often be inadequate in capturing various kinds of bodies, desires and intimacies. Law’s emphasis on objectivity, a single underlying reality, is in contradiction with the subjectivity of sexual experiences and gender expressions. Law’s exclusion can function as a violence, where certain classes of people are excluded from the realm of rights and face the consequences of such exclusion. Our task is then to keep engaging with law to ensure that more people gain entry into law, at the same time being critical of its gatekeepers and the entry gate itself.

[1] Franz Kafka, ‘Before the Law’, Franz Kafka Online (Translation by Ian Johnston) accessed at https://www.kafka-online.info/before-the-law.html(August 28, 2020).

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