Gender and Law, an Intercultural Approach on Laws When They Aim at Ruling Women’s Body

1. Living one’s gender: a social role

Indeed, as they are used on a daily basis, even more than once a day, the issue of addressing and naming can be harassing for women, as it can be for transgender people when they are misgendered in the way they are named or addressed (Mr instead of Mrs etc.) (Nanda 1989, Mills 2008). Laws also become an issue when they regulate (or fail to regulate) women’s bodies, which is usually the case when it comes to childbearing and defining the right to abortion in different parts of the world; or when they are used to advertise products; or when they stigmatise the female body as inherently sexual (as is the case of films shown on international flights from Muslim countries, where women’s breasts or nudity are blurred to black).

In this context of observing what a law really means for citizens in their daily lives, the French law "Marriage for all", passed on 17 May 2013, legalising same-sex marriage, was particularly interesting because it highlighted certain problems faced by women in heterosexual marriages. It has also highlighted, year after year over the last decade, some of the ways in which laws can prove to be discriminatory against women. In particular, this law brings into play the question of control over women’s bodies as (future) mothers, as well as representations of motherhood. What does it mean to be a mother in France in the 2020s? It also allows us to rethink the notion of ‘adoption’ and the biological dimension associated with the status of mother – as opposed to non-mother (or childless woman); father; or non-biological mother or father in the case of a family with two fathers.

The comparison with India also shows that, on the one hand, there are laws and, on the other, there is the practice of applying and interpreting them; and that, in each country, the variable of adaptation is the reality of people’s daily lives.

In England and India, common law is the rule: common law is a ’body of law’ based on court decisions rather than codes or statutes. The difference between common law and civil law is that common law is a system historically focused on relationships between people (for example, multiple property rights may overlap), whereas civil law is based on the primacy and absolute nature of rights – as it is in France.

So even though the common law applies, there are different sets and levels of rules that apply in an Indian person’s daily life: caste, regional and federal laws can interfere at certain levels (Agnes 2001, Mukhopadhyay 1998, Dube 2001).

Marriage in India is primarily governed by personal laws based on an individual’s religion, and most personal laws do not recognise same-sex marriages. The Special Marriage Act, a secular law that allows inter-faith and inter-caste marriages, also does not explicitly allow same-sex marriages. India does not recognise registered marriages or civil unions for same-sex couples, although same-sex couples can enjoy rights and benefits as a resident couple (analogous to cohabitation) under a judgment of the Supreme Court of India in August 2022

In all countries, the question of childbearing and parenthood is a major gender issue, because it is a major human issue and, in fact, at the centre of life, linked to one’s social position in the world, society and inheritance (descent, transmission of names and property, the child’s place in society according to its sex…).

And it is also the gateway to control over women’s bodies, because it is directly linked to social representations of parenthood, also in its political, social and economic connections and meanings. What does it mean to be a mother? To be a father? To have a child? And what difference does it make if the child is a boy or a girl? What does it mean to be a woman or a man, transsexual, homosexual or cisgender? From there, and depending on the place of birth, the decision about one’s own body is very different. In France, before the Neuwirth law (28/12/1967) which authorised contraception, contraception was often confused with abortion: preventing fertilisation was associated with interrupting the development of the foetus². Then, the Veil Law (01/17/1975) legalised the right to abortion in France, with the voluntary interruption of procreation (previously a punishable offence). Looking in parallel at the evolution of (civil) marriage in France, the PACS law (15/11/1999) gave recognition to other couple statuses by the simple fact that people decided to live together by contract, and also allowed the recognition of cohabitation as a status that could be easily declared. Finally, the law on marriage "for all" - i.e., the recognition of homosexual marriages - also gave women the right to adopt their own child as a social parent after marriage, under very specific conditions that had to be proven and confirmed by the judge (17 May 2013). This law was actually amended in August 2021 and allows for early recognition by the social mother, as long as proof of the absence of the father is provided (certificate of insemination by an anonymous donor) (XXXX 2021 Alicante; Brunet et al. 2023).

2. What does gay marriage in France teach us about discrimination?

2.1. Methodology and corpus’ presentation

Same-sex marriage was seen as a victory for equality in France. However, the law itself is based on a certain kind of discrimination, because it has created a second type of marriage, which is fundamentally different from a normal marriage in terms of creating a family, which is supposed to be the main project of marriage (Fine and Martial 2010). The fact that lesbians can marry has also highlighted certain discriminations linked to the status of the married woman as such; these discriminations have been felt all the more by these women because they are lesbians. Among these, the mismatching of their surnames that was automatically made by banks and other administrations highlighted the abusive practice to name any married woman with only her husband’s name (in our case, each wife was nominated by the other wife’s surname, thus creating an absurd situation). The discrimination experienced mainly concerns the identity of the person, and in particular the question of the address, the way of being named, as a married woman, as a mother, as an individual; the transmission of the name (XXXX 2018) and above all the recognition of the non-biological mother as a full mother, through marriage (Théry 2016, Gross 2013, Stambolis-Ruhstorfer and Descoutures 2020, Brunet 2015). In fact, one of the recurring practices to guarantee a semblance of at least symbolic recognition is for the non-biological mothers to declare their child’s birth at the town hall: “"So it was I who went to declare the birth at the town hall, so that I would appear as a third declarant, but in fact it was the only mention of me that existed before the adoption" (9P2) (XXXX 2017). This ensures them to see their name appear on their child’s birth certificate before adoption and to therefore also be able to prove their presence and commitment as a mother throughout the process of the child’s birth, a process that a police investigation verifies during the adoption application.

My corpus of studies consists of thirty-two interviews, lasting between thirty minutes and an hour, that I conducted between 2016 and 2022 with one or sometimes both mothers of lesbian families. In order to maintain anonymity, the interviews have been randomized from 1 to 32. The P1 label always concerns the mother who speaks on behalf of the couple. In the rare cases where both mothers participated in the interview, the allocation between P1 and P2 is also randomized based on who speaks first. Thus, the notation 9P2 means that this is interview number 9, and that it is the mother who spoke second at the start of the interview who speaks here. The transcriptions have been cleaned of all the marks of orality in order to make them more readable – hence the notations ‘(...)’. The data processing being for now of a qualitative type, based on selected excerpts relevant for this publication, it therefore did not require full transcription of the interviews.

The lesbian families in my corpus are defined as two mothers with at least one child who have married in order to have their joint motherhood legally recognised for the child or children. The general framework of the 2013 law is that it authorises the adoption of the spouse’s child (identical to heterosexual marriage) under certain conditions of educational recognition of the children. In this process of adopting their partner’s child, women must prove that their children have no father and that they have been involved with the children since the beginning of the project (Guermonprez 2018). The adoption process confers the right to change one’s name, to choose a surname and, at a symbolic level, to register the child in the two lines of its two mothers at the same time.

2.2. Another type of forced marriage

What the analysis of the corpus reveals, on the one hand, is the violence that results from the shortcomings of this law, insofar as these shortcomings create situations of discrimination, while this law, in particular, aimed to include homosexuals in a system that ignored them. In fact, the main of these discriminations is that lesbian families were obliged to get married in order to seek "protection" for their families and to be recognised as legitimate, even though they had no particular intention of getting married:

10P1: "that’s the reason why we got married, in fact (...) it’s the only reason because I knew 10P2 wanted to be pregnant and I told her (...) OK, (...) on the other hand, (...) it’s not the same thing. (...) on the other hand, let me warn you, we don’t have children, we don’t even consider having a procedure if we’re not married, just because in my head, in fact, that was really the thing that guaranteed legitimation”

The argument of having no choice but to get married for the sake of the whole family is repeated in almost all the interviews I have collected over these years. It is also very clear for the parents of interview number eight:

8P1: "We didn’t have a plan to get married, no (...) we lived all these years without getting married (...) afterwards (...) I think that when you get older, apart from the question (of the child), you also ask yourself other questions about the protection of the other; so maybe we would have got married for other reasons, like protection, inheritance, or I don’t know what to imagine (...) we never talked about it, but personally (...) I never rocked in my chair. (…) I have never been caught up in the illusion of "the princess who marries the prince" (...) because there are women who expect marriage as a kind of realisation, as a kind of result (...) so we had a very simple wedding, we had the witnesses and we had a great restaurant, it took twenty minutes, here is the end of the ceremony (...) again it is a very simple ceremony. ... once again it is a purely administrative process for me, in any case at that time (departure abroad) (...) as a matter of fact I do not carry any romanticism on the notion of marriage".

As is clear to the parents of interview number nine:

9P2: "So there were several things, so there was already the fact that the child had to be over 6 months old³, so that was the first thing. Marriage has never been a goal or a wish for us, nor to get a PACS. We have a connection to it that is not necessarily ... well, we really got married so that I could adopt (the child’s name). But I don’t think we would ever have got married or had a civil partnership otherwise... for reasons of, I was going to say, conviction”.

Another reason for marrying soon after the law was political anxiety, because the law was difficult to pass and you never know what will happen next. This couple (interview number seven) felt they had to do it immediately, just after they had contracted a civil union (PACS), for which they had a very big party:

7P1: "We got married in July 2014 (...) more than a year after the law (...). I was the one who insisted to 7P2 that she would do it, because I was afraid that we would have a window of a little bit too short and that after all this... we didn’t know if Hollande⁴ would be maintained and that if we had Marine Le Pen⁵, maybe... (...) that she threatened to annul the marriage for everyone (...) and that’s why I kept saying to 7P2: "we have to start, we have to start".

And then 7P1 adds:

"and then hey, it was still necessary to get married, even if it was a formality, it is not completely a formality. So, we finally started in July 2014, so we got married, we didn’t have a big party again, (...) well we still marked the occasion, but we didn’t make all the fuss, we just had a little party at home".

Again, the implicit reference is to the need to get married in order to protect their family (they had two children by then). An interviewee described her case where although separated for many years, the two mothers decided nevertheless to get married in order to do the adoption process for their teenager children’s sake, and then have a divorce. More, many of these mothers, who had to pay between two hundred and two thousand euros for the adoption process, also had to pay when deciding to get a divorce, which adds a pecuniary dimension to the discrimination.

So, in a way, we could speak here of the institutional violence that forced women to marry in order to be recognised as the other parent of the children they had, the child they had helped to bring into the world because they too wanted to be mothers (Gross 2013).

When talking about violence, the first thing that counts is the violence that is felt, which is quite obvious here in the ways it emerges from the speeches. Before finally being able to adopt their children, non-biological mothers lived (and still live in some cases) in constant stress linked to all kinds of possible life threats. What would happen if the biological mother died? if an emergency life-saving decision had to be made for their child that they cannot legally make? If she herself dies and cannot pass on her assets, nor her name, to her child? This bastard status (literally and figuratively) constitutes a precariousness of the emotional and parental bond with the child, who needs the security conferred on him by the legal presence of his two parents, at his side, from his birth. Thus, even if they never wanted to get married, these women are obliged to do so to protect their children, especially since the second mother has no legally recognised relationship with the child until the adoption is finalised (which takes 6 to 18 months, depending on the families, judges and courts where they live). In fact, if the biological mother were to die before the adoption was finalised, she would have absolutely no right to keep her children with her, and even the possibility of seeing her children again would depend entirely on the wishes of the biological mother’s family.

In terms of parental responsibility, this procedure, which was and still is imposed only on lesbian families, is discriminatory but necessary for them as parents. It shows that when it comes to protecting their children, they put their children first, whatever their own beliefs may be. Working on this issue has also taught me that whatever the big equality discourses, the acculturation of discrimination is regular when it comes to women and the family (Stambolis-Ruhstorfer and Descoutures 2020). Extending my research on this topic to India, a totally different country, has been a way to push further the theorizing of this fact.

3. What does it mean to be born a woman in India?

According to the United Nations report of April 2023, India will become the most populous country in the world with a total population of 1,425,775,850⁶.

Population control has been a public policy concern in India for some time⁷. In fact, a population control bill was introduced in Parliament in 2019, but later withdrawn in 2022. However, another issue to consider in this context is India’s existing laws on reproductive health and contraception. The Supreme Court of India in the case of Suchita Srivastava and anr v/s Chandigarh Administration said: "It is important to recognise that reproductive choice can be exercised for procreation as well as for abstinence. The crucial consideration is that a woman’s right to privacy, dignity and physical integrity should be respected. This means that there should be no restrictions whatsoever on the exercise of reproductive choice, such as a woman’s right to refuse to participate in sexual activity or to insist on the use of contraceptive methods".

In India, it is the Ministry of Health and Family Welfare who regulates contraceptive services under the National Family Planning Welfare Program⁸. Contraception (that is birth control) is promoted and made available free of charge. The K.S. Puttaswamy judgement (26/10/2018)⁹ recognised the constitutional right of women to make reproductive choices as part of the personal liberty guaranteed under Article 21 of the Indian Constitution¹⁰.

However, Indian marriage reinforces gender roles to the extent that women ’change’ families and become the ’property’ of their husband’s family, both symbolically and materially (Chatterjee and Jeganathan 2000, Agnes 2001). In fact, today the practice of dowry has been reversed and it is the bride’s parents who have to give a large sum of money to the groom’s family for him to marry their daughter. This then leads to a lot of abuse and crimes against the woman (including harassment, abuse and even death) and a lot of pressure in general.

When a woman marries, she also becomes the child of her husband’s parents and has to take care of them as if they were her own parents. For this reason, a little boy is often valued more: the child’s education and investment will not be lost to another family when he marries, but the boy will stay with his parents and care for them with his wife after marriage. It is therefore important for parents to know that they will be looked after when they are older. Of course, there are now Indian women who are independent and active enough to look after their elderly parents, but this is not yet the norm¹¹.

In the rural state of Rajasthan, female infanticide (also known as gender-based infanticide) is still a common practice. In fact, it is still a deeply disturbing issue in some parts of India (Saravanan 2002, Dewan and Kahn 2009). This practice involves the deliberate killing of female infants or foetuses due to cultural, social or economic preferences for male children. As I explained, the preference for male children is rooted in cultural and societal factors, including dowry practices, inheritance norms and the perception that male heirs are essential to carry on the family name (Ahlawat 2013). In particular, the dowry system, whereby the bride’s family is expected to make significant gifts or financial contributions to the groom’s family, can place an economic burden on the family with daughters. This in turn contributes to a preference for male children¹².

Sons are often seen as the primary breadwinners and providers for the family, especially in rural agricultural communities. The belief that male offspring will contribute more to the family income can lead to the devaluation of female children. Deep-rooted patriarchal norms and the desire for male heirs to carry on the family name and property also contribute to the preference for male children¹³. In addition, intersectionality in India includes caste parameters that do not exist in France¹⁴ (Agnes 2001). And, like other forms of discrimination, it is written off as unconstitutional¹⁵. This is also the reason why there is still a demand and business for arranged marriage, although it is often done in a smoother and more modern manner – as illustrated in the three seasons Netflix Series Indian Matchmaking, October 2023.

The following photo (photo 1) was taken (by me) at the entrance to the New Medical Centre in Pondicherry, Tamil Nadu, India, on 18 August 2022. The picture shows a shadow of a pregnant woman with a focus of the foetus in her womb, in blue. The text is written both in Tamil and in English and says:

“Determination of Sex of the unborn Child is Punishable Under the Law. Pre-conception and Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse – Act 1994): Sex Determination and Sex Selection of foetus is a non bailable offence. Request for sex Determination and Communication of Sex of unborn Child is Punishable with 3 to 5 Years Imprisonment and 10000 to 50000 rupees of fine. Ultra Sound and Other Tests for the Foetus are not Permitted except for Detecting Genetic Abnormalities, Diseases, etc”.

This poster highlights and illustrates both this whole issue and what I am trying to define when I speak of the "symptoms" of women’s social status/function/role in society in their ordinary lives:

Figure 1. Waiting room/entrance – New Medical Centre, Pondicherry, Tamil Nadu, India, 18/08/2022.

Figure 1. Waiting room/entrance – New Medical Centre, Pondicherry, Tamil Nadu, India, 18/08/2022.

While in Europe it is a normal and regular practice to know about prenatal sexuality from the third month (from the time when the baby is supposed to be safer to be carried until the end), in India it is forbidden and punishable on grounds of gender discrimination. However, the law does not completely prevent it, and in this configuration, there is a risk that if a baby girl is announced, the groom’s family (the in-laws and often the man himself) will put pressure on the pregnant mother to undergo an illegal and dangerous abortion after three months of pregnancy.

4. What about same-sex couples in India?

In 2018, the Indian Supreme Court partially decriminalised homosexuality by striking down Section 377 of the Indian Penal Code, which criminalised consensual same-sex relations. The court ruled that consensual homosexual acts between adults are not illegal. However, the context of the vote was very different from the "civil rights" and individual freedom of life that come with it in France or England, for example.

In fact, Section 377 of the Indian Penal Code was introduced in 1861 during the British rule of India and was modelled on the Buggery Act of 1533. It made sexual acts "against the order of nature" illegal. On 6 September 2018, the Supreme Court of India ruled that the application of Section 377 to consensual same-sex relations between adults was unconstitutional, "irrational, indefensible and manifestly arbitrary". In fact, the main argument of the lawyers defending decriminalisation was that the penal law (i.e., Section 377) was primarily a colonial law that discriminated against Indians. They insisted on the double discrimination inherent in this article, which leads to the conclusion that the problem does not lie with same-sex couples, but with the condemnation of Indians on the basis of an imported colonial law that persists despite independence.

Arundhaty Katju and Menaka Guruswamy¹⁶, both Brahmin lawyers, came forward as a lesbian couple to defend decriminalisation¹⁷. In fact, Katju’s two main arguments were, firstly, that this was not an issue (the legalisation of gay rights) that only affected Western countries, but also directly affected India in terms of its history, its culture:

"Malaysians and Sri Lankans are looking at how they can use India’s ruling to overturn anti-gay laws in their own countries" - "imported" by colonialism, especially the British. (...) Our government must realise that these are not our laws, that this has never been our culture (...) Independence and decolonisation must surely mean more freedom...".

Of course, Hindu culture is at first glance that of an open and gender-fluid country, given Hindu deities and the constitutional existence of a third gender¹⁸ (Shah 2012). After India’s decriminalisation, other movements emerged in Kenya, Botswana, etc., based on the same anti-colonial argument.

However, the decriminalisation of homosexuality did not automatically legalise same-sex marriage in India.

More recently, on 17 October 2023, the Supreme Court of India rejected the petitions of 21 petitioners, including same-sex couples, trans people and associations. The judges said they did not have the power to make such a decision and, as the government wanted, handed the responsibility over to Parliament. However, there has been notable progress on marriage for couples where one member is transgender. The Supreme Court has ruled that there is no obstacle to the marriage of transsexuals, provided they identify as "man" and "woman" respectively (says Sophie Landrin from New Delhi, India, correspondent for Le Monde, 19 October 2023)¹⁹.

Although it does not recognise same-sex marriages or civil unions, the vast majority of heterosexual marriages are not registered with the government and customary marriage remains the dominant form of marriage. Hindu priests perform same-sex marriage ceremonies in India and abroad, and hundreds of same-sex marriages between Hindus in India have been reported in customary marriages since at least the late 1980s. As pointed out in the introduction, India does not have a single law on marriage, and each citizen has the right to choose which law applies to them based on their religious community. Although marriage is regulated at the federal level, the existence of multiple marriage laws complicates the issue.