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Pseudoscience Cannot Mask the Prejudice of Ex-Judges Opposing Same-Sex Marriage

Pseudoscience Cannot Mask the Prejudice of Ex-Judges Opposing Same-Sex Marriage

Photo: Terence Faircloth/Flickr CC BY NC ND 2.0

Sri City: Earlier this year, on March 24, a group of 21 former high court judges issued a statement urging those pleading for same-sex marriage rights in the Supreme Court not to do so “in the best interest of Indian society and culture”.

Calling the petitioners’ cause as one that is imported uncritically from the west, the four-page statement, which has only one reference, mentions that legalising same-sex marriage would have “devastating” consequences, including the undoing of “Bharatiya society and culture”, weakening the “family system”, causing an increase in the number of people living with HIV/AIDS, purported negative consequences on children raised by same-sex couples, the risk of “population decline”, weakening of the gene pool of the “entire human race”, and the fall of “collective herd immunity and progressive evolution”.

Previous reports on the judges’ statement have pointed out the logical fallacies in their arguments, including their branding of the issue of same-sex marriage as a “Western” concept (this, this and this) and their uncritical acceptance of heterosexual marriages as perfect (this). 

A previous report in The Wire has also highlighted the unsound and prejudiced link between marriage and procreation that the judges allude to in their statement. Further, another report by The Wire has posited that at least 11 of the 21 judges who have signed the statement are perhaps more committed to the current government than the constitutional promise of equality.

But what about the purportedly more “scientific” aspects of the statement? Are they backed by evidence, or reflective of long-standing social and cultural biases? The Wire Science finds out.

Will same-sex marriage lead to a rise in people living with HIV/AIDS?

In their statement, the former judges draw from a 2019 HIV surveillance report from the US Centers for Disease Control and Prevention (commonly abbreviated as CDC) to claim that “for 2019 and 2020…70% of new HIV-AIDS incidence in the country was amongst the gay and bisexual men.” 

While the former judges are correct in identifying homosexual and bisexual men in the US as more susceptible to HIV infections, they appear to conveniently ignore that the CDC report itself attributes this increased susceptibility to “stigma, homophobia and discrimination”.

Importantly, the former judges’ statement also appears to wrongfully conflate homosexuality with same-sex marriage when it posits that “…legalising same-sex marriage might lead to an exponential rise in the number of HIV-affected.” The Leaflet has previously argued that there is no basis for this claim.

In 2021, the National AIDS Control Organisation (NACO), India, released the third edition of Sankalak, its report on the National AIDS Response. According to the report, it is the heterosexual “route of transmission” that contributes to a whopping 83% of HIV infections; in contrast, homosexual/bisexual sex acts contribute to only 2.5% of HIV infections. 

The trend is true for all states and union territories in the country barring Punjab and Tripura, where shared use of “infected syringes and needles” is another major contributor to HIV infections. Across all states, however, the proportion of HIV infections as a result of homosexual/bisexual sex acts remains significantly lower than the proportion as a result of heterosexual sex acts.

Representative image. Photo: HopeMedia/Flickr CC NC 2.0

The former judges might be interested to note that these trends are not new. As early as 2006, a paper by Suniti Solomon and colleagues had identified “housewives with single partners” as the “new face of the [HIV] epidemic in India”. Solomon was also one of the doctors who discovered the first cases of HIV infection in India.

The Wire Science has reported previously on how social and cultural factors contribute to the increased susceptibility of marginalised groups to HIV infections. In the case of married/heterosexual women – including those who do sex work – these factors include the lack of power to negotiate safe sex practices, fear of domestic violence upon inquiring their husband/partners’ HIV status, and the social sanction for heterosexual men’s promiscuity. In the case of both heterosexual women and homosexual/bisexual men, the stigma attached to HIV infection drives these communities away from regular testing for sexually transmitted infections (STIs), leading to late detection and consequently, the loss of their lives.

Thus, the former judges, in upholding monogamous heterosexual marriage as the ideal union, commit the same fallacy that HIV/AIDS prevention and intervention programmes the world over have been guilty of: their focus on practising heterosexual monogamy and using condoms fails to recognise the social and cultural contexts in which certain groups emerge as more susceptible to HIV infection than others. This medicalisation of HIV infections in vulnerable and marginalised groups negatively impacts both their social status and the success of the prevention and intervention programmes.

If the true concern of the former judges is the HIV/AIDS epidemic, then, they would perhaps do well to support the legalisation of same-sex marriages. As The Leaflet has argued previously,  

“Legalising same-sex marriage can actually promote safer sex practices by allowing same-sex couples to access spousal health insurance and benefits. It can also increase public awareness about LGBTQI+ people, especially in healthcare settings, leading to increased support for HIV prevention efforts and better healthcare access for the community.”

Negative consequences on children raised by same-sex couples?

The statement also claims that children raised by same-sex couples are at a risk of negative consequences with respect to their emotional and psychological development, which it attributes to “an environment devoid of balanced parenthood”.

Similar conclusions were posited in a 2012 study by sociologist Mark Regnerus. He surveyed more than 15000 Americans (ages of 18-39) about their upbringing and claimed that respondents who were raised by a mother in a same-sex relationship “fared worse on 24 of the 40 tested outcomes, compared with children of an intact heterosexual couple,” CBS News reported in 2012. 

In the case of children whose fathers were in a same-sex relationship, “there were 19 outcomes they performed worse on,” the report adds.

However, Regnerus’ study was vehemently criticised by several experts for using unsound methodology, drawing hasty conclusions, and for having a “right-wing agenda”.

Further, the study was funded by the Witherspoon Institute and the Bradley Foundation; the former is a conservative think-tank, and the latter is a conservative funding agency that supports, among others, “faith-based groups that serve individuals, strengthen families, and revitalize neighbourhoods.”In 2013, the American Sociological Association took a clear stand against Regnerus’ study, saying that it “provides no support for the conclusions that same-sex parents are inferior parents or that the children of same-sex parents experience worse outcomes.”


In 2020, researchers at the University of Oxford and the Maastricht University, Netherlands, published a paper in American Sociological Review that looked at the performance of 2971 children raised by same-sex couples and more than a million children raised by “different-sex parents” in primary and secondary education. 

The researchers followed these children from birth to the end of primary education, and about one third of these populations were followed until the end of secondary education.

“Children raised by same-sex parents from birth outperform children raised by different-sex parents on standardized test scores at the end of primary education,” the researchers concluded in their study (emphasis supplied).

“We also find that children raised by same-sex parents from birth continue to outperform children raised by different-sex parents in secondary education. In particular, the results suggest children raised by same-sex parents from birth are 4.8 percentage points more likely to graduate from high school than are children raised by different-sex parents,” the paper adds.

Their results are reiterated by a 2023 review and are in sync with a 2012 statement from the American Psychologists’ Association.

Representative image. Photo: PTI

Population decline, weakening of gene pool, and “collective herd immunity”

The former judges express anguish over the risk of same-sex marriages leading to a decline in the population when they say, “[Same-sex marriage] caters to individual emotional health at the cost of larger social health and at the risk of significant population decline.” 

The palpable anguish continues as the statement shifts gears: “In the long run, there are serious concerns that the gene pool is also going to be weakened affecting the entire human race especially in terms of collective herd immunity and progressive evolution.”

There are common threads running through these arguments: (a) the wrongful conflation of marriage with procreation, and (b) a veneer of scientific reasoning without any evidence for the same. The first thread is easy to identify and counter: even in heterosexual/different-sex marriages, not all married people aspire to have children. Conversely, globally, not all children are born out of wedlock. 

Regarding the former judges’ anxiety over same-sex marriage leading to a fall in population, The Wire Science could not find any evidence justifying this claim.

In 2011, science communication professor Jesse Bering speculated that extending marriage equality to same-sex couples would lead to an eventual fall in the population of homosexual individuals. According to Bering, they would choose to not enter into heterosexual wedlocks and procreate despite the incompatibility with their partner, “effectively putting a full stop to the transmission of their genes.” 

Bering’s argument hinges on the belief that homosexuality is genetically determined – a belief that has been put to rest summarily in a massive 2019 study.


One report in a book chapter – by Kansas State University professor Walter Schumm – claims to have found a correlation between legalising same-sex marriages and lower fertility rates in the US. 

However, as a reviewer of Schumm’s book agrees, his analysis is “small” and “more research is needed in this area”. 

Notably, Schumm was also one of the few academics who had defended Mark Regenerus’ 2012 study (mentioned above). There was only one problem: he failed to disclose his relationship with the conservative Witherspoon Institute.


The former judges use the phrase “gene pool is also going to be weakened” quite dramatically, making the legalisation of same-sex marriage appear almost apocalyptic. 

It is, however, not clear what they mean by the weakening of the gene pool. The gene pool of a species/population is defined as the complete set of unique forms of every gene present in that particular species or population. A large gene pool – i.e., one that has many different forms of one gene and many different genes – is generally believed to be indicative of genetic diversity (which, for evolutionary biology, is a good thing). 

Perhaps the former judges are referring to genetic erosion, a phenomenon where an endangered species/population loses part of its gene pool due to reproductive individuals dying before engaging in reproduction. 

However, it is not clear what this would have to do in the context of legalisation of same-sex marriages. For one, human beings are not an endangered species. 

More importantly, legalising same-sex marriages has been predicted to not affect “marriage, divorce, abortion rates, the proportion of children born to single women, and the percent of children in female-headed households” in a 2009 study.

Gyaneshwar Chaubey, a professor of biological anthropology and medical genetics at Banaras Hindu University told The Wire Science that “‘weakening of the gene pool’ is a vague term in evolution. It suggests that when a large number of an organism’s genes related to reproduction go under negative selection, the entire gene pool may be lost.” 

Negative selection implies a set of processes that lead to the removal of certain genes from a population. 

“But generally speaking, [weakening of the gene pool] doesn’t apply to the diverse human population,” Chaubey added.

Chaubey interprets the former judges’ statement in the following way: They are perhaps apprehensive that legalising same-sex marriages might lead to a decrease in the number of childbirths, which they fear will decrease genetic diversity.

“However, I think that the human population has expanded and diversified so well in the process of evolution that a limited reduction of new births would not affect the overall diversity,” Chaubey told The Wire Science.

Importantly, the former judges seem to believe that sex in a heterosexual marriage is the only way to bear children, conveniently ignoring adoption, and surrogacy and other assisted reproductive techniques.

Representative image. Photo: Photobiophilia/Flickr CC NC ND 2.0


With regards to the statement’s claim on “collective herd immunity”, what the former judges perhaps mean is “herd immunity”. 

(Gagandeep Kang, the noted immunologist and virologist, told The Wire Science that the phrase “collective herd immunity” is not a part of common scientific parlance. “A herd is a collective,” she said.)

Herd immunity refers to an indirect form of protection from a contagious disease that is conferred upon a population once a sufficient percentage has become immune to infection, either because they have been previously infected, or because they have been adequately vaccinated. 

Thus, as a substantial section of the population gains immunity against a specific contagious disease, the likelihood of infection for individuals who lack immunity also reduces, leading to the eventual reduction of the infection rate in the population.

Since the statement does not mention any specific contagious disease, it is unclear in what context it uses the phrase “collective herd immunity”. It is also unclear what legalising same-sex marriage would have to do with the phenomenon. The Wire Science could find no evidence that legalising same-sex marriages leads to a reduction in the herd immunity of a population.

Kang agreed.

On the contrary, in the context of contagious diseases like SARS-COV2 disease (COVID-19) and MPXV (also known as monkeypox), prior reports suggest that queer individuals not only show more positive health-seeking behaviour, but also have higher confidence in immunisation strategies like vaccination than their heterosexual counterparts. 

At least in the case of SARS-COV2 disease, the CDC reported in 2022 that “COVID-19 vaccination coverage and vaccine confidence were higher among gay or lesbian adults than among heterosexual adults.”

Thus, if anything, better health-seeking practices of queer individuals might actually be contributing to increasing herd immunity in the case of specific contagious diseases rather than leading to its decline.

All that is coated in the language of science is not truth

The Wire Science’s analysis shows there is little truth in the former judges’ statement despite the language of science they so readily use. In fact, their arguments around legalising same-sex marriage and its purported evolutionary distress on the entire human race reeks of Victorian morality and eugenicist tendencies

The language of (pseudo)science cannot be used to deprive marginalised groups of their long-due civil and substantive rights, marriage being one of them. 

Sayantan Datta (they/them) are a queer-trans science writer, communicator and journalist. They currently work with the feminist multimedia science collective, and tweet at @queersprings.

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