‘Forced Conversion Therapy’ in India: Legality in Question

By Shivani Singh

 

 

Even after two years of the 2018 Supreme Court judgment in Navtej Singh Johar v. Union of India[1] (herein referred as “Navtej Singh Johar case”) that decriminalized Section 377 of Indian Penal Code[2], putting an end to criminalization of homosexuality, the death of Anjana Hareesh alias Chinnu Sulfikar, a 21-year-old bisexual college student, was forced to undergo conversion therapy by her parents in order to ‘cure’ her bisexuality[3], is a horrible reminder of the homophobia that still prevails in the Indian society. Conversion therapy does not only violate the medical ethics[4] but also many human rights that are inherent to all human beings,[5] right from their birth irrespective of their sexual orientation or gender identity. Such practices are not uncommon in a country like India. However, the need to ban such ‘forced conversion therapies’ has become more crucial now than ever before, considering the global reach of the practice and the severity of physical and mental pain inflicted upon the LGBTQ+ community, amounting to torture.[6] This article deals with three aspects of forced conversion therapies practiced in India and its legality.

 

A Pseudo-Scientific Belief

Conversion Therapy, also known as ‘reparative therapy’ is an unscientific practice that falsely purports to change a person’s sexual orientation or gender identity.[7] It is an umbrella term for pseudo-scientific and inhumane practices entailing hormonal treatments, electric shocks, aversion therapy, lobotomy, castration and so on. In 2007, a study by the American Psychological Association showed that such practices are detrimental to health and some of the psychological menaces linked to conversion therapies are depression, insomnia, anxiety, shame, guilt and even suicidal ideation and behaviour.[8] The UN’s Special Rapporteur on Torture says how ‘conversion therapy’ leads to severe and life-long physical and mental pain, amounting to torture and ill-treatment.[9] Such practices have been stoutly condemned by many leading medical health organizations including WHO[10], but the deeply embedded homophobic attitude and societal prejudice against the members of the LGBTQ+ community is the reason why some mental health practitioners still conduct such therapies.[11]

The members of the community are subjected to ‘conversion therapy’ due to an underlying false and unscientific notion that homosexuality is a disease or mental disorder like schizophrenia or a bipolar disorder that can be ‘cured’ so as to bring back the individual to a ‘socially accepted’ state i.e. heterosexuality. The Indian Psychiatric Society declared that homosexuality is not a mental disease or illness and considered it a normal variant of human sexuality much like heterosexuality.[12] In the Navtej Singh Johar case[13], the court cleared the misconception of homosexuality being a mental illness or mental disorder by relying on Section 2(s) of the Mental Healthcare Act, 2017[14] which defines mental illness as: “a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgement, behaviour, capacity to recognize reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterized by sub-normality of intelligence.” Furthermore, a glance into Section 3(3)[15] of the said Act, reveals that a mental illness cannot be determined on the basis of social status or the non-conformity with the moral, social or cultural beliefs prevailing in a person’s community. However, in the present scenario mental disorder is being determined on the basis of sexual orientation or gender identity, merely because it does not fit well if seen through the society’s prevalent social, cultural or ethical lenses. This is absolutely no ground established to determine mental illness.

 

Lack Of Informed Consent

The death of Anjana Hareesh also makes us look into the aspect of ‘forced consent’. Time and again, the members of the LGBTQ+ community have been subjected to such degraded practices against their free consent and are forcefully detained at ‘rehabilitation clinics’, exacerbating their mental and physical abuse.[16] With the enactment of the Medical Healthcare Act, 2017, Section 2(i)[17] of the said Act states that the consent given for any medical treatment should be free without any force, fraud, undue influence, misrepresentation or mistake and threat. Moreover, in Common Cause v. Union of India,[18] the Supreme Court recognized a person’s right to self-determination and autonomy in context of medical and health care decisions. It includes their right to decide whether, or to what extent, the person wants to willingly submit themselves to medical procedure or treatments or to choose amongst alternative treatments available or no treatment at all.

In most of the cases of conversion therapy, individuals are admitted solely on the basis of their parent’s request.[19] There lies a lack of free and informed consent. Involuntary and forced treatments are inconsistent with and violative of a person’s right to self-determination.

 

State’s Obligation

The United Nations’ human rights agencies have increasingly drawn attention over the treatment of LGBTQ+ community in medical settings,  including the practice of ‘conversion therapy’ and that the failure of the State to take constructive steps in preventing such practices is in violation of their obligation to protect human rights.[20]Article 12(1) of International Covenant on Economic, Social and Cultural Rights[21] (ICESCR- ratified by India) requires the State Parties to ensure that everyone has the right to achieve the highest attainable standard of mental and physical health and the mere practice of ‘forced conversion therapy’, where the individual has no consent before submitting themselves to such rigorous medical procedures, resulting into profound damage to physical and mental health, illustrates how India has failed to ensure the same.

In NALSA v Union of India[22], the court stated that Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity[23] must be recognized and followed as a tool for the State to respect and protect the human rights of the members of the LGBTQ+ community. Moreover, in the Navtej Singh Johar case the court held that although the Yogyakarta Principles are not legally binding, it affirms on the relevance of international human rights norms in addressing the violations of the rights of the LGBTQ+ individuals.[24]

Under Principle 18 of the Yogyakarta Principles, the State is obligated to take all necessary legislative, administrative and other measures to ensure full protection against harmful medical practices based on sexual orientation or gender identity. India does not have any law that explicitly prohibits conversion therapy, and therefore, a law seeking ban on ‘conversion therapy’ is much needed. Anjana Hareesh was just one of the few victims of the barbaric conversion therapy that is still being practiced in India, illustrating how the government has failed to achieve its commitment towards the protection of the members of the LGBTQ+ community.  Thus, it becomes imperative to address the issue of medical abuse faced by the community and ban such therapies by passing clear legislations and taking all other necessary measures in conformity with the international human rights and Yogyakarta principles.

 

A Way Forward

While providing adequate legal protection against discrimination and violence based on sexual identity and bringing other legal changes are an important step, much more is needed to be done for the LGBTQ+ individuals in India to be able to live with dignity. Some of the possible suggestions being-

  • Setting up parent’s counselling centres and workshops to educate them about sexual identities and to clear any related misconceptions.
  • Implementation of non-discriminatory and anti-bullying policies in schools, colleges and workplaces.
  • Appointment of counsellors and conducting proper training of staff to address any issue faced by the members of the community.
  • Expanding the use of telecommunications to reach out LGBTQ+ youths at risk and to deliver mental health services.
  • Advocating community’s acceptance through social media and film industry, considering its wide outreach.

 

Concluding Remarks

The tragic death of Anjana Hareesh brings a spotlight on the plight of the LGBTQ+ community which is subjected to conversion therapy and other barbaric treatments because of their sexual orientation or gender identity. It is a symbol of how the community is still fighting to overcome homophobia and discrimination even after the decriminalization of Section 377 of Indian Penal Code. The therapy is not only completely unscientific, but also the consent for it is neither free nor informed, hence being illegal. It’s high time that the government delegitimizes and bans conversion therapy and provides protection to the LGBTQ+ members by passing legislations in conformity with the aforementioned provisions of international law. Most importantly, it also becomes imperative for the society to take active steps to safeguards the rights of the LGBTQ+ community so that they become an inclusive part of the society rather than ostracizing them simply because their special and different identity.

 

The author, Shivani Singh, is currently a law student at the Dr. Ram Manohar Lohiya National Law University, Lucknow.

 

 

[1] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

[2] S. 377, Indian Penal Code, 1860.

[3] Kerala student dies in Goa, death puts focus on inhuman ‘conversion therapy’ on queer people, The News Minute (16/05/2020), available at https://www.thenewsminute.com/article/kerala-student-dies-goa-death-puts-focus-inhuman-conversion-therapy-queer-people-124683, last seen on 16/06/2020.

[4] Conversion Therapy for homosexuality: serious violation of ethics, Indian Journal of Medical Ethics, available at https://ijme.in/articles/conversion-therapy-for-homosexuality-serious-violation-of-ethics/?galley=html, last seen on 16/06/2020.

[5] Human Rights, United Nations, available at https://www.un.org/en/sections/issues-depth/human-rights/#:~:text=Human%20rights%20are%20rights%20inherent,and%20education%2C%20and%20many%20more., last seen on 16/06/2020.

[6] Practices of so called ‘conversion-therapy’, UN Human Rights Council, Sess. 44, UN Document A/HRC/44/53, 4, (01/05/2020) available at https://www.un.org/en/ga/search/view_doc.asp?symbol=A/HRC/44/53, last seen on 16/06/2020.

[7] The Lies and Dangers of Efforts to Change Sexual Orientation or Gender Identity, Human Rights Campaign, available at https://www.hrc.org/resources/the-lies-and-dangers-of-reparative-therapy, last seen on 16/06/2020.

[8] Appropriate Therapeutic Responses to Sexual Orientation, American Psychological Association, available at https://www.apa.org/pi/lgbt/resources/therapeutic-response.pdf, last seen on 16/06/2020.

[9] Report of the Special Rapporteur on Torture and other cruel, inhuman or degrading treatment or punishment, UN Human Rights Council, Sess. 31, UN Document A/HRC/31/57, 13, (05/01/2016) available at https://www.refworld.org/docid/56c435714.html, last seen on 16/06/2020.

[10] FAQ on Health and Sexual Diversity, World Health Organization, available at https://www.who.int/gender-equity-rights/news/20170329-health-and-sexual-diversity-faq.pdf, last seen on 16/06/2020.

[11] Sangeeth Sebastian, Kumar Vikram, Mail Today Exclusive: Delhi doctors use electric shocks to treat homosexuality, India Today, available at https://www.indiatoday.in/mail-today/story/homosexuality-cure-delhi-doctors-exposed-conversion-therapy-254849-2015-05-27, last seen on 16/06/2020.

[12] Homosexuality not an illness: Indian Psychiatric Society, The Hindu, available at https://www.thehindu.com/news/national/homosexuality-not-an-illness-indian-psychiatric-society/article24401307.ece, last seen on 16/06/2020.

[13] Supra 1, ¶ 337.

[14] S. 2(s), The Mental Healthcare Act, 2017.

[15] S. 3(3), The Mental Healthcare Act, 2017.

[16] Gender conversion therapies are harmful, inefficient and seriously affect mental health, Outlook, available at https://www.outlookindia.com/website/story/opinion-gender-conversion-therapies-are-harmful-inefficient-and-seriously-affect-mental-health/354061, last seen on 16/06/2020.

[17] S. 2(i), The Mental Healthcare Act, 2017.

[18] Common Cause v. Union of India, (2018) 5 SCC 1, ¶169.

[19] Shock and outrage won’t stop Indian parents from forcing queer children into ‘conversion therapy’, The Print, available at https://theprint.in/opinion/pov/shock-and-outrage-wont-stop-indian-parents-forcing-queer-children-into-conversion-therapy/425439/, last seen on 16/06/2020.

[20] Born Free and Equal, United Nations Human Rights, available at https://www.ohchr.org/Documents/Publications/Born_Free_and_Equal_WEB.pdf, last seen on 16/06/2020.

[21] International Covenant on Economic, Social and Cultural Rights art. 12(1), Dec. 16, 1966, 999 U.N.T.S. 171.

[22] National Legal Services Authority v. Union of India, (2014) 5 SCC 438, ¶60.

[23] Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity, International Commission of Jurists(ICJ), available at https://www.refworld.org/docid/48244e602.html, last seen on 16/06/2020.

[24] Supra 1, ¶528.

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