On May 26th 2020, Costa Rica became the sixth country in Latin America to legalise same sex marriage.
The fight to achieve this was not an easy one!
The Catholic Church in the U.S.A. played a big role in catalysing the delay of legalising same sex marriage in Costa Rica. While on one hand, the unions against same sex marriage were adamant on holding a referendum, on the other hand, the fighters for equality were preparing to question the legality of the referendum. All these developments started around July 2010. The Supreme Court declared the referendum unconstitutional on the grounds that LGBTQI being a minority community which is subject to discrimination, can not have a referendum about their rights from a non-LGBT majority. In fact it was, not until in March 2015 that a bill to legalise same sex marriage was introduced by the then President Luis Guillermo Solís. Later in June 2018, when the Costa Rican government asked the Inter-American Court of Human Rights whether it had an obligation to extend property rights to same-sex couples, the Court stated that it was inadmissible and discriminatory for a separate legal provision to be established just for same-sex marriages and instead instructed the governments to
“guarantee access to all existing forms of domestic legal systems, including the right to marriage, in order to ensure the protection of all the rights of families formed by same-sex couples without discrimination.”
Later in November 2018, the Constitutional Chamber of Supreme Court set out the deadline for legislative action on same sex marriages as May 26, 2020. However, seeing no action in pursuance of this direction, same sex marriage was legalised by the judiciary itself and several private marriage ceremonies took place on 26th of May.
While many countries are winning the fight against homophobia, it is only fair to talk about where India stands in according equal rights to the LGBTQIA community. Sadly, despite nearing the completion of almost two years since the decriminalisation of gay sex, we are still far away from achieving equality in true sense.
Despite National Legal service Authority (NLSA) v. UOI & Ors. recognising an individual’s right to self-determination of gender and Navtej Singh Johar v. Union of India decriminalising intercourse between same sex couples, the actual realisation of these judicial pronouncements still seem to be a far-fetched dream.
In a country where the institution of marriage is looked upon as the sanctuary of establishing relationships, there is not even one statute that recognises marital relationship between same sex couples. Even though same sex couples can have a social marriage, there is no legal recognition for their rights such as provision for registration of marriage, succession, inheritance, maintenance, or even adoption. In Shakti Vahini v. Union of India & Ors., the Supreme Court recognised the right to choose a partner as a fundamental right, thus it is nothing other than outright discrimination and blatant disregard of constitutional values that is stopping India from putting across a law recognising the rights of LGBTQIA community.
Various interviews conducted by different social welfare organisations leads to a singular conclusion that the cost of living in a country that treats an entire community of its citizens as outcasts has not just been social isolation and shunning by family, but also abuse by police and assaults that have almost no legal recourse.
UNESCO, in its findings in 2018 came to a conclusion that ‘Sexual Orientation and Gender Identity’ related bullying in schools is highly prevalent in India. Students who are perceived to be of a sexual /gender minority face disproportionately higher level of bullying. As a matter of fact, in India, 33.2% of students had to drop out and discontinue school because of the same.
While LGBTQ activists in India continue to fight for the community’s legal rights, let us all hope that more sooner than later, we are actually in a position to crystallise our dream of an ‘equitable and democratically progressive India.’
Authored by: Shiwani Agrawal, Penultimate Year Law Student Symbiosis Law School, NOIDA, Project Baala Fellow