by Sarthak Gupta 13 July 2021
On 07th June 2021, in India Madras High Court in S. Sushama v. Commissioner of Police, prohibited the practice of “Conversion therapy”, observing sexual orientation as a cornerstone of the right to privacy under Article 21 of the Constitution of India. Subsequently, Tamil Nadu became the first state in India to constitute such a ban on conversion therapy.
Conversion therapy
The practice of “conversion therapy” or “reparative therapy is a vicious and immoral practice, which intends to change the sexual orientation or gender identity of an individual including gender expression. When an individual belongs to the LGBTQIA+ community they are suppressed because they do not blend into what other characters perceive as the appropriate norm [binary norm]. Conversion therapy has been condemned by every prominent medical and mental health institution for decades because of persistent discrimination, harassment, and social hostility towards LGBTQIA+ individuals.
Nevertheless, even after the decriminalization of homosexuality in Navtej Johar, this unethical and dangerous practice is still practiced, on a notion to cure homosexuality. A major section of Indian society still doesn’t accept non-binary sexual orientation and sees it as a western disease that can be cured. The right to live with dignity and the liberty to make own decisions and individual autonomy are quintessential for a meaningful life. The practice of conversion therapy against the individual in violation of the principle of informed consent, as deliberated by the Supreme Court of India in Samira Kohli and Common Cause case that such forceful therapy is against the bodily privacy and integrity of the individual is against the right to privacy as observed in K.S. Puttaswamy.
Madras High Court’s rationale
The case involves a same-sex couple whose family was against their relationship. Both women left their respective homes, their parents filed a missing complaint separately. When the police authorities interrogated the couple knocked on the court’s door and filed the petition to seek protection from police harassment, from any danger or threat to their safety. Justice Venkatesh opined that “[D]iscrimination is not a self-referencing concept. A meaningful attempt to identify and eliminate discrimination must necessarily involve the identification and protection of the constitutional values of personal autonomy, dignity, liberty, and privacy”
Under Articles 14,15 and 21 of the Constitution, the court granted protection to the couple [petitioners] under. The court took a further step and directed certain guidelines to the Ministry of Social Justice and Empowerment[MSJE]. The guidelines inter alia include providing protection from and prevention of offenses against the LGBTQIA+ individual[s], formulating shelter spaces and necessities medical care, and others. Furthermore, Court suggested incentives for sensitization programs to raise awareness among police, educational and medical authorities to eliminate prejudices against the LGBTQIA+ community.
Prejudices in Pride
The sole legalization in the healthcare section that safeguards the limited comprehensive protection under the Mental Healthcare Act, 2017 [Mental Act]. The act states that the shall not be any discrimination against the individual [patient] on the determination of gender and sexual orientation. Subsequently, the act also necessitates that while handling LGBTQIA+ patients, medical professionals must obtain “informed consent.”
In this pride legislation. the Mental Act has few prejudices against LGBTQIA+ individuals too. On the account of sexual orientation, and LGBTQIA+ individual can’t be identified as a patient with “mental health” Subsequently, it fails to protect individuals who are generally less educated or simply indoctrinated into perceiving that their orientation is a “disease” or “disorder,” the Act’s conception of informed consent is conservative. The right to exercise self-determination, which includes the right to choose is a right observed in the Common Cause judgment. This right encompasses the willingness of patients to accept medical treatments as well as the freedom to choose between alternative medical treatments. To correspond to societal expectations, LGBTQIA+ patients are coerced into submitting, and undergoing such a cruel procedure.
Nevertheless, the culture of embarrassment, brutality, and violence that pervades alternative sexual identities has a considerable impact on the victims’ mental health, and an individual may submit to fake therapy in order to satisfy “social standards of binary norms” Third, the Act solely sanctions the state and mental health experts accountable, but not other perpetrators including parents. Parents play an integral role in endeavoring to “change” one’s sexual orientation.
Ban on “conversion therapy” under International Obligations
Conversion therapy, practice castigates individual[s] solely on their sexual orientation and gender identity. This practice on the face of “treatment” is cruel, and inhuman and contravenes Article 5 of UDHR, and Article 7 of ICCPR, which obligates states to ensure protection from torture or cruel, inhuman, or degrading treatment or punishment”.
CRPD, observes that non-consensual and/or coercive medical or hormone-based treatments is also a form of discrimination, and also asserted by Human Rights Committee, that state parties should not condone any form of societal stigmatization or discrimination premised on a person’s sexual orientation or gender identity, particularly the advocacy of “conversion treatments.” Subsequently, Treating LGBTQIA+ individuals as mental and psychiatric patients or a disease that can be cured by “conversion therapy” in violation of their right to sexual reproductive health under Article 12 of ICESCR. United Nations expert, Victor Madrigal-Borloz has advocated in his report to Human Rights Council to ban “conversion therapy”. The psychological trauma and suffering induced by “conversion therapy” is severe and long-lasting, and it significantly leads to depression, anxiety, hopelessness, and suicide.
A transformative action?
India’s High Court observation is no doubt an inclusive and progressive step protecting the constitutional rights of LGBTQIA+ individuals. One of the transformative incentives was that the judge, in this case, Justice Venkatesh, undertook several psycho-educational sessions to comprehend better, prejudices and challenges that LGBTQIA+ individuals experience on a daily basis. This illustrates that court authorities are likewise attempting to dispel preconceived conceptions. However, the need for criminalization is a prerequisite, as following Yogyakarta Principles in Nalsa Judgement, the state ought to take cognizance of such unethical and dangerous practices.