The sexuality debate and the issue of same-sex
marriages is a developing area of family law in
various jurisdictions abroad. In December 2005,
the South African constitutional court declared
the absence of a facility to allow same-sex
marriages as offensive to the country’s
constitution because it amounted to a denial of
equal protection under the law. The result was
the adoption of legislation in November 2006
allowing same-sex couples to be able to marry. In
Canada, the Canadian Supreme Court held that the
existing common law definition of marriage which
is confined to ’union for life between a man and
a woman’ could no longer stand because it
offended against the Canadian Charter of Rights
and Freedoms that guarantees equality
irrespective of sexual orientation. The result
was that the same-sex marriages were legalized
federally in Canada in July 2005. Even before
that, Spain, a country with a high percentage of
Catholics, became the third country in the world
to pass legislation legalizing same-sex
marriages, the first two being Holland in 2001
and Belgium in January 2003.
The issue has arisen in our part of the globe
with the episode of Shumail Raj and Shahzina
Tariq. There are no reliable figures of
homosexuals in Pakistan but the issue is
certainly not the first of its kind although it
is probably the first one to hit the attention of
the media after Justice Khawaja Muhammad Sharif
of the Lahore High Court sent the same sex couple
to separate jails for three years on perjury
charges. The couple has avowed that they are not
homosexuals but rather share a passionate bonding
with each other provoked by, what the same-sex
couple regards, a non-discursive and profoundly
negating ritual of arranged marriage. The
implications of this inferno are rooted in the
censorial, negative power of patriarchal violence
that is so adamantly embedded yet conveniently
denied.
Individual autonomy, independence,
self-sufficiency, self-rule, freedom and
self-determination are laudable aspirations for
any society that regards the welfare of
individuals seriously. These fundamental values
have been discussed by many influential legal and
moral philosophers from John Locke to Kant to
Rawls. The “self” that often desires to be
autonomous, is socially constructed. It is a
hybrid of culture, tradition, religion, morals,
and power. When this “self” takes the form of a
female gender, particularly in our country and
those others that share similar cultural values
and traditions, this social construct becomes an
amalgam of all the above but most importantly
patriarchy, and to some extent, misogynist
experience. Women like men are autonomous
individuals but women’s independence is
marginalized due to the negativity of a genre of
patriarchal power unleashed in our legal space.
Although many philosophers assume that to be
human is to be in some sense autonomous, women
are far from being autonomous. In fact they are
profoundly relational. The degree of autonomy is
usually measured by the amount of choice and
power that one has. Power and choice are
necessary for the exercise of real autonomy.
However, due to the biological, reproductive role
of women, they are largely rendered
non-autonomous.
When a woman is pregnant, her physical being
embraces the embryonic life of another, and thus
she experiences a shared physical identity with
herself and her fetus. Robin West, a prominent
feminist of this era, takes on this stance to
explain the counter-autonomous experience of
women. When a woman shares her physical identity
with another life developing inside her, her
autonomy is largely undermined. When she becomes
a mother and shares the emotional and
psychological bond with her infant, her autonomy
becomes tied to the infant once again. Because
women are burdened materially with the dependency
of the fetus upon them (although no doubt they
are emotionally and psychologically enriched with
this bond) they tend to rely more on
relationships with others from whom they can
derive the material strength and power to nurture
the infant who ultimately depends on them. Thus a
woman’s biological role is inherently
counter-autonomous.
However, it is not only the biological aspect of
a woman’s physical being that makes her
non-autonomous, it is also the social, political
and legal victimization caused by the pervasive
patriarchal institution, the compulsory
heterosexuality, the institution of arranged
marriage, forced romance, and the censorship in
many cultures that gives birth to and nurture
woman to woman bonding and redirect the young
girl’s emotional and sentimental identification
toward men. This construction of the woman bond
is thus largely the result of pervasive and
universal institution of patriarchy that
trivializes women, suppresses them, and
ultimately some emotionally weaker ones seek
refuge by unionizing with the same-sex.
Patriarchy is like a Trojan horse which brings
with it the evils of dehumanization of women,
subordination, objectification, sexism and it
marginalizes, trivializes, silences and threatens
their existence in this patriarchal world.
There is considerable potential in this theory if
one is inquisitive to delve into the whole
sexuality debate and dig out the reasons for some
people’s so-called “deviant” behaviour. From the
diagnosis of homosexuality as a psychological
disorder in 1970’s, to it being considered a
disease, then a mere perversion, then
’paraphilia’ or the sexual disorder, a ’third
sex’, and finally the present classification as a
separate sexual orientation, we have been
confronted with various theories and explanations
by sexologists and psychologists regarding
homosexuality.
In our country, by accepting the monopolizing
wisdom of our ancestors and showing our
indifference to delve into the intricate details
pertaining to custom, tradition, and the laws of
heaven, we have buried the spirit of questioning.
The awareness and an attempt to find a rational
eye in every decision, doctrine, and dogma at the
bare minimum flourish debate, and promote speech
and expression. If we are not scared of losing
our religious and social significance by debating
publicly issues of sexual orientation, gender and
sexuality, questioning our beliefs will lead to
more clarity and less confusion rather than what
some of us perceive to be sacrilegious.
The aim of free speech, as enshrined in Article
19 of our constitution, is to protect a
marketplace of ideas. Avoiding the suppression of
the exchange of ideas and chilling speech forms
an integral part of the individual’s right to
freedom of expression. If one assumes arguably
that law is a form of a social control and crime
is ’a revolt against the social order’, as
Nietzsche put it, the judiciary and officials who
apply sanctions whenever this social order is
breached would obviously act in ways that
reinforces the ’norm’ or the status-quo, which is
largely homophobic. The logical conclusion of
concentrating more power in the state apparatus
to chill speech regarding sexual orientation is
to reinforce this homophobia.
Perhaps the most powerful weapon in the state’s
arsenal is to declare these ’deviants’ as
criminals since they act in a way that goes
against the conformity with the herd. However,
legislative or judicial suppression might not be
the right or the only answer to the popular
philosophy which stigmatizes homosexuals as
“deviant” when they dare to come out of the
closet. We really need to find avenues and forums
to discuss, without anxiety, fear or contempt for
homosexuals, the present heterosexual hegemony
and the ’straight’ ideology with a focus on "more
speech" through education and media.