Litigation is more than courtroom victories

It is important to study the LGBTQI+ rights movement in India to understand how litigation serves as a political tool for cultural transformation beyond mere courtroom victories. It is crucial to assess the effectiveness and efficiency of litigation techniques and strategies in the short term for cases like ‘Same-Sex Marriage’ (SSM) as well as in the long term for advocating polyamorous relationships. Evaluating the movement’s impact within and beyond the legal system is essential. After all, for any meaningful impact, de facto change is as important as de jure change.

Five important features of litigation can lead to lasting changes in law and policy and positive effects for LGBTQI+ rights.

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It assimilates individual stories into a uniform structure as lawyers translate grievances into the formal legal language of liberty, equality, and non-discrimination instead of designing a legal agenda through an empirical assessment of the community’s needs and circumstances. However, in impact litigation cases like SSM, the idea is to find the right mix of personal content around topics of ‘love, dignity, and respect’ that resonate with the LGBTQI+ community and citizenry at large and legal terminology of constitutional rights, civil rights, and human rights that only judges and lawyers can comprehend. Frank Kameny’s petition and AIDS Bhedbhav Virodhi Andolan’s ‘Less Than Gay’ report showcase effective messaging and agenda setting.

As such, lawyers must study critical questions like: which area of law offers the greatest opportunity for winning the SSM case and setting a strong precedent--constitutional law or international human rights law or civil rights law; which arguments and messages touched Indian society the most in NAZ Foundation, NALSA and Navtej Johar cases; whether the strategy to give more importance to ‘equality’ than ‘liberty’ works or fails; whether judicial behaviour and public sentiment reflect similar biases towards LGBTQI+ identity; what could be a Plan B; and how to use American case-law appropriately in a culturally diverse, religious, and pluralistic society like India; and what has been the pattern of high court and Supreme Court opinions in LGBTQI+ rights’ cases?

Balancing the emphasis on de jure equality in legal arguments with social considerations is vital. For example, in the Suresh Koushal case, judges completely disregarded personal affidavits filed by the transgender community in India as valid evidence against Section 377. Although access to the courts is the highest privilege of citizenship, lawyers must not deradicalise and transform the LGBTQI+ agenda by substituting their own legal priorities for the more substantive goals of activist leaders and clients.

Framing arguments based on individual rights and anti-discrimination laws may overlook broader queer demands and sentiments. The arguments of lawyers tend to subsume diverse life stances under the monolithic gay identity, restrict the fluid sexuality of bisexuals and transvestites, disregard the concerns of lesbians and intersex individuals, and invisibilise choices of poor, Dalit transgender individuals. Ismat Chugtai’s story ‘Lihaaf’ (The Quilt) is an apt example of fluidity and queer life
in India.

While focusing on legal arguments, lawyers often neglect the need to appeal to religious beliefs, traditions, public opinion, and conscience, particularly while arguing the SSM case before the Indian Supreme Court. After Obergefell’s victory in the US, Jim Obergefell was asked how he would address anti-LGBTQI+ activism and homophobia. He exclaimed, “I ask that they think about the people they love: their siblings, their children, their neighbours, their friends, and their co-workers. If one of those people came out as LGBT, that person is still the same person you know and care about. Nothing has changed. Wouldn’t you want the people you care about to be able to live life and enjoy the same rights and protections that you do? That’s what this fight is about. As a nation of laws, every American [read Indian] should be treated equally, including the fundamental right of marriage.”

Litigation garners significant media attention compared to other strategies like lobbying and protesting. It is because a legal case is highly organised, stable, and publicly more appealing than a petition or protest. It is the most powerful tool to bring about social change. It educates the LGBTQI+ community about important issues like naming the oppressor, describing the various facets of oppression, voicing their grievances, and laying claim to specific remedies. However, the rigid structure and process of litigation techniques must neither stifle the dynamism prevalent in the LGBTQI+ community nor dehumanise individual choices.

Lawyers must understand and carefully invoke these five features to establish credibility and legitimacy for impact litigation in LGBTQI+ rights, gaining recognition among both the legal fraternity and the general public.

(The writer is an assistant professor at the NLSIU,
Bengaluru.)