After decades of ‘institutionalized discrimination’, it was only on the 8th of September 2018 that the whole LGBTQ+ community could say ‘Alas, the tenets of equality, fraternity, and dignity are for us too!’ It was only 72years after the independence of our country, that this section of our society could truly believe that they had become independent and that they are no more haunted by a rotten colonial legacy.
Though the ‘conscience keepers of the Constitution’ have rightly realized that ‘history owes an apology to the members of this community, there is still a long road to tread to make the lives of this section of populace truly free from any kind of ‘fear’, ‘reprisal’ and ‘persecution’.
It was not much long after the Navtej Singh Johar judgment was delivered, that a horrendous incidence came to light, exposing yet again, the murky perception of society towards the LGBTQ+ community. An incident from Kerala, where a young girl, was forced to undergo ‘conversion therapy’ showed how certain practices are abhorrently normalized in our society.
What is Conversion Therapy?
‘Conversion Therapy’ also known as ‘gay-conversion, is a deceptive word for a systemized diabolic practice in which a person is subjected to violent, invasive, and traumatic methods to change the person’s non-heterosexual sexual orientation. There is a set of physical, psychological, and behavioral therapies out there which, under the garb of medical science, claims to have successfully transformed non-heterosexual persons to heterosexual ones.
In the year 1983, a study was published in ‘The Indian Journal of Psychiatry’ where it was claimed that homosexuality could be ‘cured’ with aversion therapy. This postulate was based upon a series of experiments conducted at AIIMS, where a group of 6 people were ‘electrocuted’ in order to ‘correct their behavior and transform them into heterosexuals. It was only in the year 2014 that ‘the Indian Psychiatric Society’ came out with a formal statement denouncing its past position on homosexuality and thereby stating that homosexuality was not a psychiatric disorder and there was no evidence that sexual orientation could be altered by treatment.
Incidents like these and many others are only the tips of the iceberg of the stigmatization faced by the LGBTQ+ community. This section of our society still faces systematized social exclusion, identity seclusion, and isolation. The practice of ‘conversion therapy’ is a living example of it. Worse, our government is still yet to take a clear stand on it.
Indian Laws in relation to Conversion Therapy?
There are no laws to criminalize this abhorrent activity. Also, the benefit of the doubt these procedures receive under the garb of medical and psychiatric procedures, makes the criminal act escape from the hands of the law. The Conversion theory procedures basically involve a diverse set of dangerous and discredited pseudo-scientific treatments aimed at changing a person’s sexual orientation or gender identity. These can range from counseling, medication, institutionalization, and hormone injections to rare but extreme methods like electro-convulsive therapy and hormonal castration.
Under Section 304-A of the IPC, criminal liability upon medical negligence can only be established if the act is of such a ‘high degree’ or is ‘gross’. Therefore, the burden of proof to be established would be very high. Otherwise, mere civil liability and the perpetrator will be let loose after paying compensation. Another provision, Section 319 of the IPC talks about the offence of ‘hurt’, still not enough to cover within its ambit the criminal act of conversion therapy.
The Mental Health Care Act, 2017 prohibits discrimination based upon gender and sexual orientation. It puts a liability upon mental health professionals to obtain ‘informed consent’ from the patients before treating them. This act also aims at eradicating the inhumane and harsh methods used to treat patients by mental health professionals. However, the Act still falls short of addressing the prevalence of conversion therapy.
In NALSA vs. UOI, the Supreme Court asserts that each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity, and freedom, and no one shall be forced to undergo a medical procedure, including Sex Reassignment Therapy, sterilization or hormonal therapy, as a requirement for legal recognition of their gender identity. Again in Navtej Singh Johar Case, the Supreme Court gave a wide interpretation to the definition of mental illness and specifically removed any inferences of homosexuality from within its ambit. The Apex Court also asked the Government and State officials to be sensitive towards the LGBTQ+ community and take steps to remove the social stigma associated with homosexuality.
Apart from the attempts of drawing inferences from the interpretation of Law and also certain directions here and there, no concrete steps are taken by the legislators to get rid of this practice.
Specific legislation, pronouncing ‘ban’ on the practice of conversion therapy is the need of the hour. Recently, the Madras High Court in one of its rulings out rightly banned medical procedures intended to convert the sexual orientation of homosexual people. It is incumbent that criminal liability is fixed upon the medical/psychiatric professionals so as to deter them from performing such activities. A social change can only be brought about if there are positive steps taken by the Government in this direction.
And now when ‘Right to privacy’ has been incorporated as an integral part of ‘right to life, it is high time that we realize that sexual orientation is also an essential attribute of privacy. Discrimination on the basis of sexual orientation is a direct attack on the dignity of an individual as prohibited under Article 15 and is also against the right to privacy under Article 21.
Equality should not be subservient to the popular opinion of society. It cannot be selective and therefore cannot overlook the status of a particular section of society. Therefore, it is high time that we truly acknowledge that ‘history owes an apology to the LGBTQ+ members of our society’ and work towards building a progressive society truly inclusive for all.