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Of Shared Struggles Beyond the Water: A Sri Lankan Perspective with Themal Ellawala

Updated: Aug 10, 2023

This is the fifth and final interview in the SLR Special Series on the Marriage Equality Debate entitled Queering the (Court)Room.

Introduction


Themal Ellawala is an academician who primarily works on gender and sexuality in the Sri Lankan context. Their work uses queer theory and postcolonial studies to interrogate how categories of sex, gender, and sexuality are deployed in various ways in Sri Lanka’s colonial and postcolonial history of aspiring towards liberal modernity, imbricated as they are in liberal values and other identity categories such as race, class, caste, and religion. As the editorial board, we found it imperative to understand perspectives outside India on how the marriage equality petition and surrounding discourse impacts our neighbours, and queer communities and movements across South Asia.


Their responses to our questions aim to problematize the understanding of marriage equality that the petition has built. They express the vast fluidity of queer relationships outside of the construct of marriage that was traditionally meant for heteronormative relationships, and how the probable outcomes of the petition will fail to accommodate such relationships. They also discuss their hopes for the queering of marriage as an institution, and how the state institution of marriage contains an element of disciplining of the subaltern. The Sri Lankan Supreme Court’s use of Indian case law to demonstrate judicial support for queer rights is elaborated upon, to show how Indian jurisprudence offers direction to queer rights being legalised in Sri Lanka. Largely, Themal Ellawala asks provoking questions about the direction that marriage equality is taking, and whether it needs to do more to make marriage a truly inclusive institution.


Interview


How do you make sense of the demand for marriage equality through the judicial interpretation of the Special Marriage Act in a gender-neutral manner? Do you think it could lead to queer identities being boxed in cisgendered-heterosexual family structures (as you have argued here) or do you think that the marriage equality litigation can lead to a queering of these structures?


I will begin by saying that we need to be specific about what we mean when we use the term “marriage” in public discourse. Are we referring to legal, state-sanctioned marriage? Or to social and cultural practices of marriage that may contravene the encroach of the law, also known as common-law marriage? Especially in the context of South Asia in which individuals frequently negotiate a union between themselves and with their families/communities with little regard for the law, we need to be careful about what we are referring to when we say marriage [1]. We also need to be careful about not overstating the reach of the state by assuming that all marriages fall equally and absolutely within the ambit of the state. Ruth Vanita has demonstrated that these customary marriage practices have long been used in anointing a variety of romantic-sexual relational formations, not just the union between a woman and a man, indicating just how queer such practices can be in their ability to accommodate multiple desires and attachments without instituting an exclusionary norm [2]. So, perhaps in certain ways some marriage practices have always been queer.


But your question is specifically on the hearing on marriage equality before the Supreme Court of India, which indexes the demand that the state recognise and protect the right of queer couples to marry. My hope for the queering of this idiom of marriage is dimmer. Alongside the well-known Marxist, feminist, and queer critiques of marriage (e.g., pertaining to the evolution of marriage to protect private property, the treatment of women as property, and the enshrining of heteronormativity as property, among others) I ask: what happens when we appeal to the state to grant/recognise a right to marriage? Does this not amount to a recognition of the state’s authority to regulate marriage? Does such a political orientation leave space in queer & trans movements to question this authority? Some may scoff at this reading, citing the sheer impracticality of rolling back centuries of state control of marriage, yet what happens to our political imaginary when we assume such control is a given?


The Sri Lankan case exemplifies how state control of marriage is a result of a complex set of historical events, which began in Europe in the Middle Ages with the slow emergence of states and their need to eclipse the church. British colonialism, aided and abetted by the cooperation of local elites who sought to benefit from colonial and capitalist encroach, was largely responsible for the transformation of marriage into the unitary, legally governed institution it is on the island today. Scholars have noted that pre-colonial marriage customs entailed little by way of monarchical control of unions, while many different forms of marriage (e.g., polyandry, polygyny, matrilocality, patrilocality, endogamy, exogamy) were accepted. This loose assemblage of customs included the right for “illegitimate” children to inherit, and for women to retain control of property through marriage and divorce as well as to represent themselves in court. What is evident is that marriage was not imagined as the fount of legal or social privileges, as the latter flowed from the monarchical state through the feudal labour system, and were regulated through a matrix of state and village institutions and customs and traditions. British interest in instituting Victorian morality as well as seizing land for the Crown motivated a concerted effort to reform marriage by bringing it within the ambit of the law [3]. This led to the reformulation of marriage as a legally enshrined principle and institution, from which a host of other legal rights and privileges flowed. So began a project that has since been erroneously read as the way things always were. What would it mean for queer, trans, and feminist activism on marriage to use such histories as a starting point?


By contesting state regulation of marriage I am not casting my lot with conservative/libertarian advocates of marriage privatisation, of the likes of U.S. Senator Rand Paul, who call for the return of marriage to religion. Again, Sri Lanka demonstrates why this too is insufficient in queering marriage towards more emancipatory ends. The activists spearheading the reform of the Muslim Marriage and Divorce Act (MMDA) demonstrate what happens when the state abandons marriage to culture, in this case a particularly narrow interpretation of Islamic law within the Shafi’i school that grievously restricts Muslim women’s rights in marriage (Tegal and Isadeen 2021) [4]. Sri Lankan Muslim women have long fought against these strictures, most recently through the Muslim Personal Law Reform Action Group. Crucially, the strategy women have adopted is to demand that the state intervene and reform the Act so that it is in accordance with local and international law. Similarly, laws regarding domestic violence and child marriage represent other important state intervention in marriage, even though the enforcement of such laws betray the structural logics at work in both the codifying and implementation of such laws. All this is to say that I don’t believe in a total retreat of the state from marriage, achieving some neoliberal ideal. But the state offering legal protections to vulnerable parties is not the same as the state being the arbiter of marriage, and it is the second premise that I wonder if queer and trans movements have failed to sufficiently interrogate. So, I do think there is a risk of the emancipatory possibilities of queerness being contained and deflected by the particular idiom of marriage this case represents.


Your argument on the indeterminacy of queer love gives us a non-heteronormative lens of understanding love and relationships. Heteronormative relationships that are centred on marriage are idolised as definitive, committed, lifelong, procreative, romantic, sexual, and with one person. Continuing from the previous question, does marriage equality envisage and legitimise queer relationships also with heteronormative definitiveness or is there room for indeterminacy in queer love and marriage (which could lead to queering of the institution of marriage to some extent, for the benefit of everyone)?


I do not think indeterminacy is incommensurable with state-sanctioned legal marriage, despite my critiques of the latter. I use indeterminacy to mark the ways in which people manoeuvre within structural conditions in ways that are spontaneous, unpredictable, illegible (e.g., how someone may self-identify as “gay” and live life in ways that contravene expectations of stable object choice, visibility, coming out, consider their sexual identity central to their sense of self). I think indeterminacy obtains in any social life of a structure. My work is about inhabiting and interrogating the gap between what people say and what people do, and I think it would do us well to mind this gap as we appraise marriage.


Marriage is rife with ambiguities, be it through infidelity contravening the dictum of monogamy, idiosyncratic gender dynamics that trouble patriarchal scripts, the kink practices couples indulge in behind closed doors, or how marriage produces kinship obligations and matrices that flout capitalist notions of property, consumption, and individuation. I do not wish to dismiss such ambiguous contingencies even as I note how dominant culture seeks to overdetermine marriage, to disambiguate and discipline for its own ends. I should note that neither “indeterminacy” nor “queer” obtain as liberatory or utopic here. When my work traces the braiding of the normative and queer that marks scenes of married men fulfilling queer desires with men and trans women, to use one example, I cannot dismiss the pathos of wives nor the patriarchal conditions of possibility for such infidelities. What indeterminacy and queer mark here is the messy, inchoate nature of lived experience, which the formal discourse of marriage is insufficient and uninterested in doing justice to.


Legal marriage has a long history of being used to discipline the subaltern, as I mentioned earlier concerning the British colonial project of reforming marriage practices in Sri Lanka. A similar history exists in the United States with marriage laws being deployed against the Black figure, to mark the sexualities and kinship arrangements of Black Americans as other [5]. Marginalised communities in South Asia have often demonstrated a certain proclivity towards customary marriage, whether for reasons of resource scarcity or resistance of dominant culture. Historically, it is Sri Lankans who are poor and from oppressed castes who resort to customary marriage [6], which begs the question: who is it that appeals to the state for marriage recognition? While senior advocate Menaka Guruswamy stated before the Indian Supreme Court that many eagerly await a verdict in support of marriage equality, it must be asked: who is it who demands the right to marriage? While I am entirely sympathetic to the need to claim the material benefits that accrue from state-sanctioned marriage (e.g., insurance and tax benefits, end of life decision-making and healthcare access) is legal marriage the only wellspring of such benefits? Anthropologists in particular have gestured to what alternative imaginings of union existed before and alongside the advent of legal marriage, such as woman-woman marriage practiced in parts of Africa, nineteenth century Swedish feminist Ellen Key’s notion of motherhood being the organising principle of society, the Shakers and Oneida movements in mid-nineteenth century United States, and the kibbutz movement in the early Jewish settlement (and later colonisation) of Palestine [7]. I do not hold these models up as politically neutral or utopic, yet they allow us to imagine rights and privileges originating from much different sources that the sole institution of legal marriage.


I suppose I am not an anarchist in that I do not call for the abolition of legal marriage. I do think that queer and trans bodies can inhabit marriage in ways that subvert, even quietly and subtly and fleetingly, dominant culture. But I do wonder who marriage serves and to what ends, and what happens when our critical energies are fixed on achieving marriage equality at the expense of other goals that disproportionately affect poor and working classes, racially minorities, and oppressed caste communities.


In your piece ‘Legitimating Violences’, you discuss how NGOs attempt to discipline queer individuals into a certain typology of the Western queer figure. As you highlight, South Asian queer cultures (both Indian and Sri Lankan) vary from Western queer cultures in many ways. Local practices and nuances heavily influence the way in which queer identities and cultures develop. The import and application of western terms and ideas without adaptation and acknowledgement of local specifics has been a result of the NGOisation of the queer movement in both countries. The singular guarantee of the recognition of non-cishet marriages between two people is not sufficient legal recognition of all kinds of queer relationships and kinships. Do you see the marriage equality hearings as also relying and focusing heavily on Western categories and ways of being queer? How must the queer movement in these countries and the postcolonial States work towards recognising marital and non-marital relationships that are intrinsic to more indigenous queer identities?


I think there are many other ways of negotiating the global-local. My interlocutors and friends in Sri Lanka demonstrate just this, inhabiting grammars of LGBTQ+ and their attendant expectations in ways that are strategic, self-reflexive, or interpreted through vernaculars that serve to transform both the local and the global. Thus, categories that flow through the capillaries of imperial power rarely retain their original form when they are seized by the Third World. However, the article you mention interrogates a particular negotiation of the local and global, which is how “gay rights” NGOs uncritically deploy received categories and discourses of sexuality that originate in the west. I note that this seemingly automatic re-deployment occurs because the survival and legitimacy of NGOs are premised on demonstrating “needy” publics that are legible to western liberal democracies. I recognise this as intrinsic to liberal culture, for institutions invested in this culture work towards (re)inscribing its logics onto the social body.


I see similar dynamics at play in the marriage equality hearing in India. There is the obvious fact of the hearing trafficking with terms like gay, lesbian, transgender as if they are self-evident truths. I am also struck by advocate Karuna Nundy’s argument. She invoked the National Legal Services Authority (NALSA) vs. Union of India (2014) [8] judgment to demonstrate how the central government already recognises certain forms of trans marriages and argued for the extension of this logic to cover all trans marriages. It is brilliantly argued and an effective (in my opinion) challenge to the government’s stance of marriage being a union of a biological male and female. Yet, I wonder what it means for this petition to be heard as part of a series of petitions by self-identified gay and lesbian individuals, or for this petition to be taken as making a wider queer case. While South Asia has long histories of queer and trans solidarity and the conceptual imbrications of gender and sexuality, queer & trans community as a singular formation is not always a given. My research in Sri Lanka encounters the fault lines and fractures that run between transness and queerness quite often, which leads me to wonder if these figures would have found themselves in a single community if not for the LGBTQ+ model that was globalised in the aftermath of the AIDS crisis in the west. The separation of transness and queerness is a tactic cunningly employed by anti-trans segments of the queer community, which is not a project I am at all invested in. Yet, we cannot deny that how we imagine community is shaped by historical events that transpired well outside our cultural spheres, and which continue to shape our discourses, as exemplified by the hearing.


My vision for a queer and trans community is not one that repudiates the “global” in favour of the autochthonous, for Anjali Arondekar reminds us of the peril of scouring archives for lost histories [9]. Sri Lanka, in its absence of a rich historical record of gender-sexual diversity forces me to reckon with how queerness and transness can insist on its existence within and despite such absence. Nor do I agree with articulating queerness and transness through appealing to the statist discourse of proving one’s history, pedigree, belonging to the land. Instead, I wish for space for multiplicity, for queerness and transness to be sites, homes, and meeting points for multiple desires and ways of being in the world. If marriage equality were to become the law of the land in India, what would it mean to treat both the aspiration for queer marriage as well as the yearning for queer entanglement while normatively married as valid recitations of queer desire, without casting the former as modern, self-actualised, and singularly aspirational and the latter as false consciousness, archaic, uninformed, and gauche? To end where I began, I do not know if the institutions we are forced to manoeuvre within – the state, the law, the NGO – allow for such a plural and mercurial understanding of queerness and transness, and so I remain sceptical. For our movements to recognise both idioms of desire we must embrace notions of queerness and transness that fall outside of the margins of liberal discourse, to recognise that people constantly articulate and disarticulate themselves vis-à-vis significatory frameworks.


Your work, including the aforementioned article, explores the role of the postcolonial nation-state and neoliberal institutions and technologies of power to “interrogate interpellative gender-sexual forces as they circulate through various economies”. There has been some recent work, such as Srila Roy’s ethnographic monograph Changing the Subject: Feminist and Queer Politics in Neoliberal India which looks at questions of co-optation of the feminist and queer movements through NGOs, and feminist governmentality vis-à-vis transnational neoliberalism. Could you share what, in your view, is the value and import of this literature? How may we understand debates around queer activism, including the fight for marriage equality, against the backdrop of neoliberal, capitalist modernity and its many implications?


I see this question as linked to the preceding one, for scholarship cannot and should not be divorced from activism. I have mentioned before the promise I see in Nivedita Menon’s (2004) strategy of invocation and deconstruction as a way of negotiating the politics and pragmatics of activism [10]. Invocation represents a calculated use of the grammars and logics of dominant culture when it is required for the advancement of the cause, or Spivakian strategic essentialism, while deconstruction signifies the interrogation and disassembling of those very grammars and logics. What would it mean for the queer & trans movement in Sri Lanka (and elsewhere in South Asia) to deploy the categories of LGBTQ+, sexual identity/orientation, biological essentialisms when encountering the state, donors, and the international community while retaining the space to critically assay those technologies from calcifying into truths? To traffic in what renders us legible while knowing that legibility is a liberal trap that will render us hollow simulacra?


My movement through Sri Lankan queer & trans spaces, and dissident political spaces more broadly, makes me wonder how we can inculcate a more auto-critical spirit in our movements. Perhaps the relationship between activism and scholarship becomes crucial to the practice of invocation and deconstruction I wish for in these spaces. Without positioning scholarship as the self-reflexive thought to activism’s heedless action, and while recognising the complex, co-constitutive relationship between activism and scholarship, perhaps there is a role scholarship can play in deconstructing activist engagement with dominant culture. Scholarship represents a site of play and undoing, a space to stretch and (re)fabricate, and so can offer the vocabulary, tools, strategies, and investments for the kind of critical engagement with political action that deconstruction requires. Theory is always, already circulating through complex transnational, trans-disciplinary circuits within activist spaces, in histories that complicate any easy disentanglement of the two, but what I mark here is a self-conscious engagement with scholarship in a concerted effort to dismantle and undo any form that threatens to ossify, in reflection that both precedes and follows action.


I will end by saying that not only do we require more critical and ethical activism, but we also require the same of scholarship. The concerns I have raised about institutions in my work and in this interview apply unequivocally to the academy, and the labours that produce its products [11]. To say that scholarship may serve a purpose in deconstruction is not to say that it offers all the answers, and so operates from a more politically and ethically uncompromised place. We should maintain a wariness of theory that reproduces the very thing it critiques. It is in the work of activists and scholars who theorise from a place of deep and meaningful connection with their “research objects,” with a keenly felt regard for the people, spaces, aspirations, and desires that constitute their research that I see genuine hope for knowledge production that sits besides, rather than in, the traps liberalism springs for us. So, I lift up the work of Ponni Arasu, Sarala Emmanuel, Hassanah Cegu Issadeen, Sex Workers & Allies South Asia – Sri Lankan chapter, Colombo Urban Lab, Dabindu Collective, and the late Malathi de Alwis (a mentor like no other), for their work is preceded by and always returns to honouring the lives and realities that makes knowledge possible, that knowledge is meant to serve.


Recently, a bill tabled in the Sri Lankan Parliament to decriminalise queer sex and repeal Section 365 of the Sri Lankan Penal Code (‘SLPC’) was challenged in the Supreme Court. In their ruling, they cited the Indian Supreme Court’s judgment - Navtej Singh Johar v Union of India - to discuss the similarities between Section 365 of the SLPC and Section 377 of the Indian Penal Code (which were identical until an amendment in the 1990s to Section 365 SLPC). Such a borrowing from Indian jurisprudence is indicative of the influence of Indian law on Sri Lankan queer rights and queer movements. According to you, is such international influence generative for Sri Lanka’s queer movement in that both countries have a postcolonial, South Asian background (which could help reduce arguments of queerness and queer rights being Western imports)? Or is it restrictive because Indian jurisprudence is itself not queer enough or because the differences between these countries are not sufficiently acknowledged while Indian jurisprudence is used in Sri Lanka?


I will restrict myself to a discussion of jurisprudence here for the sake of brevity. The Sri Lankan Supreme Court’s ruling (SC SD No. 13/2023) on the bill to repeal Section 365 and Section 365A of the Penal Code, or the Penal Code (Amendment) Bill, offers an interesting example of how jurisprudence encounters queer and trans political claims. It is noteworthy that the Supreme Court invoked landmark cases from former British colonies – India, South Africa, and Botswana – limiting the citation of western jurisprudence. Perhaps aimed towards establishing congruence with Sri Lanka’s postcolonial legal conditions, this move also serves as a riposte to the phobic narrative that queerness and transness are unwelcome flows of (perverse) knowledge from the west.


As you note in your question, the ruling cited a great deal of Indian jurisprudence, drawing heavily from the Navtej Singh Johar v Union of India (2018) [12] judgment but also T.M.A. Pai Foundation and Others v State of Karnataka and Others (2002) [13] and Justice K.S. Puttaswamy (Retd.) v Union of India (2017) [14]. To read through the ruling is to recognise that Indian jurisprudence is invoked specifically to explicate the relationship between gender-sexuality and liberal values. For instance, former Chief Justice Dipak Misra and now Chief Justice Chandrachud’s opinions are cited to discuss the harm criminalisation inflicts on gender-sexual identities [15]. Similarly, Indian jurisprudence is invoked at length in arguing sexual orientation through liberal values of dignity, equal protection, and privacy. This borrowing is indicative of a clear trend of turning to Indian jurisprudence in determining matters of public law, particularly those concerning the right to equality and fundamental rights, over the past three decades, which has been interpreted as complicating, though not fully replacing, Sri Lankan reliance on British common law [16]. This web of relations (histories, exchange, resonance) between British, Indian, and Sri Lankan law only highlights the irony of emancipation relying on the very institution that produced the prohibition in the first place. As the Indian queer movement awaits the verdict on marriage equality and the Sri Lankan savours that on decriminalisation perhaps it is necessary to consider deeply what the limits of liberalism are if it was able to produce the proscription with relative ease and its amelioration only through great suffering and toil.


I remember the jubilation with which the Navtej Singh Johar v Union of India decision was met in queer & trans circles in Sri Lanka, the sense that what was possible there was possible here too. To the extent that the law and other liberal institutions continue to exert considerable influence on people’s material, psychic, and social lives on this island it becomes necessary to pursue structural solutions to structural issues. But what happens when a social movement’s main priority or greatest ambition becomes seeking institutional recourse? [17] When the horizon of possibility is contained to the ambit and munificence of the state and attendant structures? When our political imaginary shrinks to quests for decriminalisation and marriage equality, rendered measurable and tangible goals through liberalism, and it is only such outcomes that register as “real” or “major” victories? When decriminalisation and marriage equality eventually fail to secure any sustained, meaningful change in circumstances for most, especially the most vulnerable? Can we think about structures of community support and mutual aid painstakingly built over time as significant a victory as a legal/legislative determination of rights? Or to think horizontally across issues in defiance of the mode of siloed politics liberal culture presumes, as is clear in the curious disarticulation of the Nepali Supreme Court’s ruling on the Citizenship Act, which continues to overlook the right to gain citizenship through one’s mother (which I read as directly related to marriage and patriarchal regulation, and a queer issue), from the simultaneous interim order issued requiring the government to recognise marriage equality? [18] I have articulated before how institutionalised social movements betray a proclivity to lead us deeper into dominant culture’s enclosure. I fear that the privileging of legal change in the mainstream Indian queer & trans movement, which circulates regionally in ways that alternative queer & trans political imaginaries do not, only feed similar liberal impulses in Sri Lanka.


Beyond litigation, how does the broader queer movement in Sri Lanka make sense of the trajectory being followed by India’s mainstream queer movement that excessively focuses on legal battles and securing liberal rights? Does it follow a similar trajectory or is it more critical of legal ways to freedom?


I preface these comments by saying that I cannot and will not speak for the entire Sri Lankan queer & trans movement, for it is a fractal thing constituted by many entities, strategies, politics, attachments, and visions. My partial observations and understandings of Sri Lanka queer politics vis-à-vis Indian movement histories offers a fragmented picture. On one hand, so much in Sri Lanka in contingent on what transpires in the Indian political sphere, be it the reliance on Indian jurisprudence to articulate the liberal legal queer subject (which I discuss before) or the insistence that queerness & transness is coterminous with the indigenous. Such arguments have had particular use in the significant lobbying efforts that midwifed the Penal Code (Amendment) Bill.


In contrast, I often detect an envy concerning India’s queer & trans abundance in Sri Lankan spaces. Be it the bustling nightlife in major metropolises, the teeming archive of a precolonial “queer & trans” past, or the wider availability of gender affirmation surgeries and procedures in India, Sri Lankans seem to find themselves looking both wistfully and jealously at the Indian theatre. There is another affect: resentment. For instance, there is the majority racial-religious group, the Sinhala-Buddhist’s disavowal of India, which is highly racialised in its rejection of anything bearing proximity to the Sri Lankan Tamil community. This ideological move can reach as far as to dismiss an entire historical archive of migration from mainland South Asia that constituted what is recognised today as the Sinhala race to claim instead that this race descends from Ravana and indigenous people of the island [19]. There is also the, far more legitimate I would venture, animosity towards Indian hegemony in the region. Decades of Indian interventionist regional policy, posing as the superpower and the policeman of the region, the concentration of resources and opportunities within parts of India, and the bloody terror of the Indian Peacekeeping Force have all contributed to a patterned and storied distrust and dislike of our neighbour. As a result, many a Sri Lankan bristles at the thought of following India’s lead, despite begrudgingly doing so eventually. This is all too apparent in the conversation on marriage equality in the region. The hearing before the Indian Supreme Court gets the most airtime and pride of place in this discussion despite the Nepali Supreme Court having issued an interim order requiring the government to recognise marriage equality just last month. Sri Lankan jurisprudence mimics this trend, making no mention of the landmark Sunil Babu Pant and Others v Nepal Government and Others (2007) [20] case while citing Indian jurisprudence so heavily.


The Sri Lankan queer & trans movement negotiates these various orientations to India simultaneously, which ultimately produces a degree of ambivalence towards the neighbouring nation. Perhaps this ambivalence converges with the fixation on local developments, particularly the Penal Code (Amendment) Bill, to produce a curious silence about the marriage equality hearings in Sri Lanka. Beyond some media coverage that was shared on social media groups and the occasional reference in everyday conversation, I have not encountered much mention of the hearing. Thus, I tread cautiously to avoid overstating India’s influence on Sri Lanka or the region. Yet, as I have noted before, the institutional elements of the Sri Lankan queer & trans movement and the nation’s liberal institutions look to the Indian example for inspiration, reference, and guidance.


I am also aware of the inadvertent harm a focus on marriage equality can cause in the Sri Lankan theatre in this moment. Dominant culture has succeeded in constructing marriage equality as a bogeyman to channel one’s homophobia even when decriminalisation is grudgingly ceded. For instance, in an interview with local news media the Minister of Foreign Affairs Ali Sabry felt moved to state that while there is support for decriminalisation, same-sex marriages will not be legalised [21]. Similarly, a failed attempt at decriminalisation in 2017 involved media coverage that stated that the government aimed to legalise same-sex marriage, in a patently untrue characterisation of events and a flagrant violation of media ethics [22]. Meanwhile, the queer/transphobic vitriol found in the comments sections of social media content on decriminalisation often conflates it with marriage equality. Given the many sensitivities to be negotiated during the shepherding of the Penal Code (Amendment) Bill, I fear that any major focus on Indian debates on marriage equality may serve as an undesirable distraction and impediment.


This is not to say that there is zero critique of Sri Lanka’s northward turn or the political agendas it represents. Grassroots organisations have long practiced a wariness of the law and its promises and have looked to find alternative ways and means of securing the security, survival, and well-being of trans & queer people. I wish to uplift the work of Companions on a Journey, Women’s Support Group, Anichcham, Aruvi, Jaffna Transgender Network, Jaffna Sangham, Heart to Heart, Community Welfare & Development Fund (CWDF), Chathra, and Generation Pride as spaces that, however limited or flawed they may be, have imagined alternative visions of community beyond the confines of liberalism. Such alternative imaginaries extend beyond local spaces to reimagine what Sri Lankan-Indian queer & trans solidarity may be. Figures like Priya Thangarajah, Sunila Abeysekera, and Amrita Chachchi have been at the vanguard of envisioning relations across the Palk Straits that centre more radical, intersectional, ethical, and deconstructive politics [23]. My hope for queer & trans politics in Sri Lanka and South Asia is that we find strength, solidarity, and kinship in our shared struggle, unrestrained by borders of any kind, in finding ways to care by each other and for each other.


This is a question we have asked all our contributors in this series. The judgment in the present case has been reserved and is expected to be out soon. Irrespective of the judgment, what do you think the marriage equality petitions and hearings mean for the queer movement, and how we think about questions of love, desire, sexuality, kinship and marriage more broadly?


An enduring preoccupation across my work is a curiosity about desire and erotics, their substance, encounter, ability to bind bodies and lives, their many permutations and ambiguities. This final question brings me to two specific questions that relate to my fixation on desire and erotics. Regardless of the judgment, first I hope that we can aspires towards discourses and imaginaries, spaces and communities that can think of queerness as multiple and mercurial. I see the need for radically opening up the category of sexuality to interrogate the privileging of object choice, to reimagine sexuality as many-vectored, reaching out to touch multiple politics and ways of being in the world. We must ask if marriage offers a form for such polyvalence and indeterminacy. While the legal institution of marriage has long been deployed to calcify categories – male/female, family, property – are there alternative genealogies to marriage that make possible such a conceptualisation of queerness? Second, I see the greatest contribution queer & trans movements can make in Sri Lanka and South Asia in countering the erotophobia that runs deep in our public cultures, which allows for such a vast gap between what people say and what people do sexually. To imagine sex as political and public, as central to how power courses, converges, and congeals is to recognise that sex and sexuality require open, honest, unvarnished, and nuanced analytical treatment in the social sphere. Can marriage be conducive to such a project? The legal institution of marriage aspires to privatise sex, containing it to the bedroom, monogamy, the female-male dyad. Can marriage insist on sex as polyvalent, public, and political, and produce a culture of frankness and vulnerability around it? These are questions we must ask ourselves about marriage as we persist in our movements and continue to encounter the liberal demand for assimilation through such institutions.


End-Notes

[1] Aarefa Johari, ‘Should Marriage Registration be Mandatory? Only if the Process is Simplified, Say Couples’ (Scroll.in, 16 July 2017) <https://scroll.in/article/843571/should-marriage-registration-be-mandatory-only-if-the-process-is-simplified-say-couples> accessed 9 July 2023.

[2] Ruth Vanita, Love’s Rite: Same-Sex Marriage in India and the West (Palgrave-Macmillan 2005).

[3] Darshini de Zoysa, ‘Transformation of Customary Marriage and Inheritance Laws of the Sinhalese Under British Colonialism’ (1995) 20(2) Dialectical Anthropology 111; Carla Risseeuw, ‘Gender, Kinship and State Formation: Case of Sri Lanka under Colonial Rule’ (1992) 27 Economic and Political Week (43-44): 46-54.

[4] Ermiza Tegal and Hasanah Cegu Isadeen, Inside the Quazi Courts System in Sri Lanka, (CHANGE Humanitarian Organisation 2021).

[5] Craig Willse and Dean Spade, ‘Marriage Will Never Set Us Free’ (Convergence, 6 September 2013) <https://convergencemag.com/articles/marriage-will-never-set-us-free/> accessed 9 July 2023.

[6] Bruce Caldwell, Marriage in Sri Lanka: A Century of Change (Australian National University 1992).

[7] Nancy E. Levine ‘Alternative Kinship, Marriage, and Reproduction’ (2008) 37 Annual Review of Anthropology 375-389; Dina Lowy ‘Love and Marriage: Ellen Key and Hiratsuka Raicho Explore Alternatives’ (2004) 33 Women’s Studies 361–380.

[8] (2014) SCC 438.

[9] Anjali Arondekar, For the Record: On Sexuality and the Colonial Archive in India (Duke University Press 2009).

[10] Nivedita Menon, Recovering Subversion: Feminist Politics beyond the Law (University of Illinois Press 2004).

[11] Roderick A Ferguson, We Demand: The University and Student Protests (University of California Press 2017); Richa Nagar, Muddying the Waters: Coauthoring Feminisms across Scholarship and Activism (University of Illinois Press 2014).

[12] AIR 2018 SC 4321.

[13] 1994 SCC (2) 734.

[14] (2019) 1 SCC 1.

[15] SC SD No. 13/2023.

[16] Dinesha Samararatne, ‘Judicial Borrowing and Creeping Influences: Indian Jurisprudence in Sri Lankan Public Law’ 2018 2(3) Indian Law Review 205.

[17] Shermal Wijewardene and Nehama Jayewardene, ‘Law and LGBTIQ People in Sri Lanka: Developments and Narrative Possibilities’ 2019 20(2) Australian Journal of Asian Law 135.

[18] Thanks go to my friend and incisive scholar of modernity and institution-building in Nepal, Dipti Sherchan, for pointing out this disavowed resonance.

[19] Pathmanesan Sanmugeswaran, Krishantha Fedricks, and Justin W. Henry, ‘Reclaiming Ravana in Sri Lanka: Ravana’s Sinhala Buddhist Apotheosis and Tamil Responses’ 2019 42(4) South Asia: Journal of South Asian Studies 796.

[20] WRIT NO. 914 OF 2007.

[21] Mirudhula Thambiah, ‘Homosexuality to be Decriminalised’ (The Morning, 10 February 2023) <https://www.themorning.lk/articles/DTlRaTHSwT1O8hESDdq> accessed 9 July 2023.

[22] Aanya Wipulasena, ‘The Battle Against Homophobia in Sri Lanka’ (Sunday Observer, 23 September 2018) <https://www.sundayobserver.lk/2018/09/23/issues/battle-against-homophobia-sri-lanka> accessed 9 July 2023.

[23] Cat’s Eye, ‘Of Love and Struggle: The Interconnected Feminist Movements of South Asia’ (Daily FT, 26 September 2018) <ft.lk/columns/Of-love-and-struggle--The-interconnected-feminist-movements-of-South-Asia/4-663454> accessed 9 July 2023.

 

The questions for this interview were prepared by Celine Cordeiro on behalf of the SLR Editorial Board.


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