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Marriage Equality in Indonesia? Unruly Bodies, Subversive Partners and Legal Implications

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Marriage Equality in Indonesia? Unruly Bodies, Subversive Partners and Legal Implications 97 Marriage Equality in Indonesia? Unruly Bodies, Subversive Partners and Legal Implications Saskia E. Wieringa1 Introduction The Indonesian Constitution guarantees that of a heterosexual marriage, this is not ex- everybody has the right to establish a fam- plicitly spelt out. After all, other means of ily. However the Marriage Law of 1974 re- getting children, such as adoption, would do stricts this right to a man and a woman. Un- as well. I know several lesbian couples who have adopted children. However, they can- division of sex and subversive partners who not marry legally in spite of their desire to challengeruly bodies society’s that don’t right readily to deny fit themthe binary their do so and the Indonesian Constitution grant- constitutional right to marry complicate this ing them that right. The 1974 Marriage Law seemingly universal entitlement. I will pre- restricts marriage to a union of a man and sent two case studies of people who married a woman. This law further allows polygyny legally yet whose right to form a family was husband as the head of the household and same-sex couple. One of the partners de- hisunder wife certain as the circumstances manager of that and household. defines the2 claredcontested. she Thewas first a male case and concerns was initially a women’s ac- No wonder that this law is being debated. cepted as such. The second case concerns a However, the opening up of marriage to all couple of which the biological sex of one of Indonesian citizens is not being considered, the partners was questioned. In both cases although the issue has been widely debated the accusation of document fraud was a ma- of late. The general feeling is that “Indone- jor issue. Yet not all people committing docu- sian traditional culture” doesn’t allow that.3 ment fraud for the purpose of marriage are persecuted. In this article I will analyse the - legal implications of these cases. Marriage where I have argued that “traditional culture” equality for whom? But who defines “traditional culture”? Else promote a so called “original” Indonesian Constitutional Right? traditionis being redefined of gender by harmony Islamist andhardliners happy famwho- ily (keluarga sakinah).4 Below I will give sev- Article 28b of the Indonesian constitution eral examples which belie the idea that Indo- stipulates that every citizen has the right to nesian culture was always-already based on form a family and acquire offspring via legal the heterosexual binary model of male and marriage. Although the emphasis on acquir- female sexes corresponding with masculine ing children already points in the direction and feminine genders. The Equal Rights Review, Vol. Ten (2013) 98 Lesbian Couple on the Run just as Angga did and marry their partners. The danger is that they are found out and are In Batam, an Indonesian island close to Sin- charged with document fraud, which carries gapore, the house of Angga Sucipto, 21 and a maximum sentence of seven years, as we Ninies Ramiluningtyas, 40, was raided in Jan- will see below. Sadly, Angga and Ninies are uary 2013. They had gotten married in 2012, on the run now, and it is not clear how they will be able to survive. The Ardhanary Insti- Riau islands. Angga carried papers stating tute, an NGO that defends LBT people, has at the Sei Beduk Religious Affairs Office, in not doubt. They had followed an express pro- has not been able to help them. cedure,she was formale which which they the paid official 2 million in charge rupiah did not been able to find them so far, and thus (around US $200) in which it is not necessary Alterina Hofan, an Intersex or Transgen- to take the long route through the neighbour- der Husband? house and lived there initially without any Under the headline Alterina latest proof of problem,hood office. keeping The coupleto themselves. settled in However, Ninies’s transgender problems, the Jakarta Post of 14 Angga did not socialize with other men as was May 2010 carried the story of Alterina Hofan expected of him and the neighbours felt justi- (or Alter), the husband of Jane Hadipoespito, who was imprisoned on the charge of “iden- they discovered that Angga was female; she tity fraud”.7 Other newspapers also reported wasfied inchased raiding out the of house the house. of the Ninies couple. was There al- on the case, with Vivanews of the same date carrying a photograph of the couple in hap- At present their whereabouts are unknown.5 pier days.8 Thelowed Ministry to stay, of but Religious she fled Affairs with her quickly partner. an- half-long hair looks up admiringly at her nounced that it would annul the marriage husband Alter, Jane smart in a fluffyin a jacket, dress shirtand withand and that in order to prevent such things from tie, short hair, square shoulders. The article happening again it would step up its regular pre-marriage counselling sessions.6 baritone voice. Alter looks to all appearanc- esspecifies a man that and Alter that smokesis the assumption heavily and under has a Two issues are striking in this case. In the which the pair married, their “truth”. Yet, at diagnosed with Klinefelter syndrome, one of factfirst theyplace are the stimulated role of theto do neighbours just that by who the thebirth, intersex Alter was conditions classified presently a girl and recognised. only later 2008feel justified anti-pornography in raiding the law, couple’s which stimulates house. In After operations for gynaecomastia and for communities to take the law into their own hypospadias Alter was happy with his body, hands in issues involving sexual morality. and changed the identity on his documents without going through a lengthy legal pro- Secondly the ease with which Angga could cedure.9 When Jane and he fell in love and - married nothing seemed to impede their bian) women in Indonesia can indeed quite happiness. However Jane’s mother objected easilypass as pass a man. as men:Butch short (male-identified hair, masculine les clothes and a masculine swagger are gener- her son-in-law for “document fraud” as the ally enough to convince people that they deal to the marriage and fielded a case against with a man. Some butches are tempted to do mentioned on his wedding form. The police sex of his birth certificate didn’t match that The Equal Rights Review, Vol. Ten (2013) 99 originally detained him in the men’s prison with all kinds of twisted arguments. Second, of Cipinang in January 2010. Not trusting the he had not shown remorse and third, the ac- Klinefelter diagnosis that Alter presented, cused had denied the fraud.14 In November, the police carried out their own investiga- Alter was acquitted from all charges on the tion and decided that Alter was a woman.10 ground that he had Klinefelter syndrome and In spite of his manly appearance, on 30 April thus, though he had tampered with his birth 2010 they moved him to a cell of his own in the women’s prison of Rutan Pondok Bambu, crime in this case.15 awaiting his trial. Jane herself declared that certificate, this could not be considered a A number of issues can be gleaned from the want is for my husband to be freed as soon as possible”.she didn’t11 care And how added Alter Alter: was “I’m classified: a real man,“All I I can ejaculate. Sperm is getting out, just ask tonewspaper substantiate reporting. the charges The firstagainst issue Alter, is the or my wife if you don’t believe me.”12 converselyuse of (albeit to argueconflicting) for his medicalrelease. Though“proof” Klinefelter is diagnosed as a biological con- So far the discussion was waged in biomedi- dition, pertaining to one’s sex, reporting fo- cal terms. If Alter was declared intersex, the cused on Alter as a transgender person. This confusion at birth was understandable. He confusion of terminology opens up a totally was a “real man” and he would walk free. But different discourse, that of human rights and if Alter was diagnosed as female and thus af- prevailing notions of “normality”. The Indo- ter the operations as a transsexual person, he nesian Human Rights Commission took this a step further and declared that this case was a change his status. In both cases the sex on his violation of Alter’s rights and referred to the should have received official permission to International Covenant on Civil and Political In the Klinefelter case, this shouldn’t have causedbirth certificate many problems, would havebut stillto bea legalchanged. pro- government in 2005. Josef Adi Prasetyo, the cess was required. In the case of a “female” commissionerRights which was in charge ratified of bythe the case, Indonesian declared Alter undergoing sex change, the procedure that Alter “has the right to say he is a man”. would have been much lengthier, involv- ing psychological testing. In that case, Alter This position provides an excellent oppor- would be called a transsexual person. tunity for a revolutionary development in the struggle for intersex, transgender, and His defence team pursued a different line transsexual people’s rights. However in the and called upon a member of the National end, this line was not accepted by the court. Rights Commission to declare that Alter’s Alter was seen as a “true man”, and adjust- rights were violated under the International Covenant on Civil and Political Rights.13 The simply mean that a perceived mistake was court accepted this argument and Alter was righted.ing one’s The “wrong” biomedical birth argumentcertificate waswould in provisionally released on 31 May but still line with the legal verdict.
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