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Growing up in the 2000s, Utkarsh Saxena wondered if he would ever “belong and be accepted” as a queer man in India.
Saxena, who earned a Master of Laws from Harvard Law School in 2014 and a Master in Public Administration in International Developmentfrom Harvard Kennedy School in 2020, said he faced “a lot of phobia” around his identity.
Now, Saxena is petitioning the Supreme Court of India to legalize same-sex marriage.
“I didn’t think that so quickly, I could even dream of petitioning the court and seeking the right to get married and having kids,” Saxena said. “If this goes well, that could actually be possible, which would have been unfathomable.”
Saxena met his partner, Ananya Kotia, when they were undergraduates at Hansraj College of the University of Delhi. Fifteen years later, the couple decided they were ready to get married, petitioning directly to the Supreme Court of India in December 2022 for the legalization of same-sex marriage.
The case was admitted for a hearing on Jan. 6, and it will be considered together with three similar petitions for additional hearings in March.
Saxena will appear in court alongside several other lawyers to present the case. He has clerked on the Supreme Court of India and has litigated other cases before the highest court, including those on constitutional law.
“I’ve been legally also observing the change in the court, besides experiencing it emotionally and socially,” Saxena said. “For all those reasons, I thought it was important now to further advance the cause of LGBTQ rights.”
In India, marriage and divorce have traditionally been categorized as family laws and regulated by religious institutions specific to Hinduism, Christianity, Islam, and other faiths. Saxena and Kotia’s petition will instead challenge the Special Marriage Act, a secular law that does not recognize same-sex marriage.
Jeffrey A. Redding, a professor at Melbourne Law School whose research focuses on comparative law and religion, said he thinks the petitions are “a calculated gamble” because they focus on secular law.
“Same-sex marriage advocates have given the Supreme Court a way to implement same-sex marriage in India without fully inflaming the Hindu nationalist government with Prime Minister Narendra Modi at the center — and also political, social, and cultural actors from all the other religious communities in India,” Redding said.
In recent years, the country has expanded rights for those who identify as LGBTQ+.
In 2014, India recognized non-binary or transgender identities as a “third gender.” Four years later, the country decriminalized same-sex marriage, which was seen as a landmark victory for LGBTQ+ rights activists.
Akshat Agarwal, who holds law degrees from Yale Law School and the National Law School of India University, said he believes the petitioners have “a really strong case” from a constitutional perspective.
“The court has already said multiple times that we believe in equality, we believe that sexual orientation discrimination should not happen,” said Agarwal, who is currently pursuing a JSD at Yale Law School. “But it really also depends on what the government argues now because we don’t know what position the government of India is going to take before the Supreme Court.”
Agarwal said an additional challenge for India is the limited recognition of LGTBQ+ rights at the local level. Currently, India’s inheritance and common property laws do not consider LGBTQ+ couples. Same-sex couples are also prohibited from having children with the help of an Indian surrogate mother.
“There are reasons that the Supreme Court of India would want to cement or buttress its image as a human-rights-defending institution and grant the right to same-sex marriage,” Redding said. “The Supreme Court would be doing so in a social, cultural, and political context, which is largely hostile to open expressions of gay and lesbian identity and same-sex marriage.”
Saxena and Kotia said they considered moving to another country where they would be able to start a family. Still, they eventually decided against it because of their interest in public service and a decision to “dedicate their professional careers” to their home country.
“I’m glad we decided the way we did because this is how constitutional battles and battles for civil rights are. There are ups and downs,” Saxena said. “As long as you believe that the long arc of change is bending in favor of progress, you keep at it.”
Corrections: February 20, 2023
A previous version of this article incorrectly stated that Ukarsh Saxena received a Master in Public Administration from the Harvard Kennedy School. In fact, he received a Master in Public Administration in International Development.
A previous version of this article incorrectly stated that Ukarsh Saxena will argue the case alongside two other lawyers. In fact, he will appear in court with several other lawyers, though it is unclear who will present final arguments.
A previous version of this article stated that Indian laws restrict LGBTQ+ people from owning property. In fact, LGBTQ+ people may own property, though India's inheritance and common property laws do not consider LGBTQ+ couples.
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