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The petition you need to know about from the same-sex marriage hearings that start today

As the Supreme Court starts hearings on gay marriage in India, it is also the right time to talk about why chosen families matter to the queer community

A writ petition in the Supreme Court is seeking recognition of the constitutional rights of queer folk to have a “chosen family” and to nominate any person to act as their nominee or “next of kin” even if they are not a guardian, close relative or biological family member.
A writ petition in the Supreme Court is seeking recognition of the constitutional rights of queer folk to have a “chosen family” and to nominate any person to act as their nominee or “next of kin” even if they are not a guardian, close relative or biological family member. (Unsplash)

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When Sky left their home about two years ago, they got the emotional support they needed from people they consider their chosen family. "I was staying with a friend for a month, and she took care of me, and she held space for me through all those anxieties and fears that I will be caught and what they [my biological family] will say," shares the 25-year-old graphic designer from New Delhi.

Unlike their natal family, who mocked and judged them when they were outed, their chosen family continues to be there for them as they explore their gender and sexuality. "With chosen family, there is no judgement involved, there is no superiority involved. These are things that the chosen family can only give. Natal families can suck out every last drop of happiness," they assert.

Considering these forms of kinship and alternative bonds that queer folks develop outside their blood relations, in February, some queer feminist activists along with six anonymous petitioners filed a writ petition in the Supreme Court, seeking recognition of the constitutional rights of queer folk to have a “chosen family” and to nominate any person to act as their nominee or “next of kin” even if they are not a guardian, close relative or biological family member. 

Today, on 18th April, a constitutional bench of the court has commenced hearings on all 20 connected cases from 52 petitioners (including this one) that address the validity of marriage and family rights of the community, among other things.

Specifically, this petition states that "such atypical families or chosen families, be it through queer romantic relationships or intimate friendships, provide real and greater support, comfort and care to a majority of LGBTI persons than their natal families, and the right to form such chosen families flows from the mandate of the right to a life with dignity and privacy under Article 21 of the Constitution of India.

So, it's the right time to talk about chosen families and why they matter to the queer community.

Chosen families and belongingness

For Radzz, their chosen family is a select group of queer and Ambedkarite friends who support them in ways their parents cannot. "I get people to hear me out, shoulder to cry on, voices who understand the pain of queerphobia, prejudice, harassment of all kinds, street side molestation, and more. They possess both empathy and humanity and a spine to stand by me," shares the 27-year-old teacher from Chennai. They call them a close-knit and socially conscious set of people who compensate for the emotional vacuum in their life.

So, in this regard, is a chosen family for a queer person similar to close friends? Somewhat, but not entirely.

"Who are these people? These people could be my friends or other queer people who supported me through my confused journeys in arriving at my queerness or transness and finding words and space for myself," explains feminist and educationist Chayanika Shah, who is associated with various rights-based collectives like the People’s Union for Civil Liberties (PUCL), the Forum Against Oppression of Women, and LABIA. She is one of the persons behind the aforementioned petition.

These are often senior or older folks in the queer community who understand your doubts and fears, especially when you try to make sense of who you are. And they need not be permanent. Your chosen family may change for you at different periods of your life.

"Somewhere, we have to start acknowledging that our lives are richer with all these people. They are the people who are helping us navigate this very cis-het world. We need to foreground them, we need to foreground the amount of care that many of us do for each other," adds Shah.

She gives the example of the hijra gharanas in this context: "For us living in this subcontinent, this is a chosen family, a chosen support structure that has been built by people who are just supporting others like them — not doing it on race, caste, religion, or any of those linkages — but on the basis that you are like me, and so I will support you."

Such forms of kinship can be significant for young queer and trans folks whose biological families can engage in conversion therapy and forced marriages, subjecting them to humiliation and indignity. A report on the findings of a closed door public hearing of queer and trans persons organised by the PUCL and the National Network of LBI Women and Trans Persons on 1 April brought up different forms of cruelty from natal families that can take the form of physical and sexual violence, mental and emotional abuse, threat to life, and wrongful confinement.

Even if they are not violent, they may tolerate or completely ignore this part of your life that is uncomfortable for them. So, Shah and other petitioners want the state to recognise that these other important people in your life should be heard.

Choosing 'next of kin'

That's where the legal aspect of recognising these forms of intimacy and kinship comes in. Outside of marriage, single persons — not just queer-trans folks — in India are attached to their biological family in the eyes of the law. The biological family automatically takes any or all decisions regarding your health, property, or other matters when you cannot take them.

So, the activists are advocating for your right to choose the person who will make such decisions. That person need not be connected by blood or marriage. Even within families, Shah says that you should have the right to choose who you want.

It matters because queer people may hide many things from their natal families. For example, the family may not know that a trans person is undergoing hormone replacement therapy or other gender-affirmative care. Also, families may often make decisions based on their instincts that are not the same as what the person wants.

"I think that it's faulty to think that the family that got assigned to you is the family who understands you the best and will stay your primary caretaker and always work in your interests," explains Shah. 

There is precedence when it comes to nominating the next of kin too. The landmark Mental Healthcare Act of 2017 empowers people to appoint their nominated representatives who can take important decisions on their behalf.

This right to decide your next of kin and the recognition of various forms of bonding and kinship in a queer person's life can act as a safeguard instead of keeping them tethered to abusive or non-cooperative biological families.

For queer folks, it is, after all, about caregiving and relationships that develop out of shared experiences. In the remembrance of his relationship with a trans activist he called mashi or an aunt, senior lecturer and researcher Rohit K Dasgupta argues that "queer care is produced through multiple understandings of oppression, kinship and celebration, which consider how we look after each other and sustain those relationships in informal ways."

Even pain and oppression can be at the heart of belongingness for your chosen family. Radzz puts it across effectively: "Happiness binds two hearts, blood binds two bodies. But pain binds two souls. People who share pain empathise with each other. They talk without speaking. Such relationships surpass blood."

Anmol is an independent journalist who writes and reports on gender, health, social justice, and culture from an intersectional lens. You will find them on Twitter @ha_anmol.

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