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The end of June marked the end of a month-long celebration of sexual and gender identity by LGBTQIA+ individuals all across the world. While Pride Month has come to an end, it does not mean that the conversations around Queer discrimination and autonomy should end.
“Ignorance is no justification for normalising any form of discrimination” stated Justice N. Anand Venkatesh, in a groundbreaking judgement that has barred conversion therapy conducted for LGBTQIA+ individuals. This is a big step towards starting a conversation regarding the truly violative and unethical nature of conversion therapy and the bodily rights of LGBTQIA+ individuals. Justice Venkatesh took it upon himself to become educated about the queer community and dispel some of his preconceived notions about gender and sexual expression. The purpose of this article is somewhat similar. The aim is to dig deep and understand conversion therapy, its legality and its practices across the world and in India and the way forward.
The first question that needs to be answered is, what exactly is conversion therapy? It is a set of treatments or therapies based on pseudo-science that aims to convert the sexual orientation and gender identities of gay, lesbian, bisexual, trans, intersex and non-binary individuals to the cis-gendered and heterosexual counterparts. In layman’s language, it is to make Queer individuals “normal” again. There are many unethical practices involved in conversion therapy and though it has been denounced by the medical field, it continues to be practised around the world.
The second question is, what is meant by LGBTQIA+? It is an umbrella term used to represent the group of people who identify as lesbian, gay, bisexual, trans, queer, intersex and asexual. They have existed in society for a while but in the last few decades, they have started to fight for their rights more and also against society’s stigma.
WHAT IS THE ISSUE?
For a long time, homosexuality was considered deviance. American sociologist Marshall B. Clinard reserved the term deviance for those ‘situations in which the behaviour is in a disapproved direction, and of a sufficient degree to exceed the tolerance limit of the community.’ And unfortunately, he included homosexuality in the list which had criminals, delinquents, alcoholics and drug addicts. Many psychologists and psychiatrists like Sigmund Freud and his contemporaries were considering homosexuality as an issue that needed fixing like a mental illness. This concept was the cornerstone for the continued acts of violence and discrimination against the Queer community.
The issue lies in the unethical nature of these practices and their adverse effects on the mental health of queer individuals. But the medical community for a long time denied these effects and even till now many healthcare professionals including mental health professionals continue to support this practice.
A report submitted to the United Nations Human Rights Council by an Independent expert by the name of Victor Madrigal-Borloz, examined in detail the different practices of conversion therapy, and laid out three main branches of therapies.
The first is psychotherapy where different psychological methods are used such as psychodynamic therapy, behavioural therapy, cognitive, interpersonal and aversion therapy. The main purpose of these therapies is to “correct” the aforementioned deviation in the way the individual’s sexual orientation is.
Aversion therapy might be one of the most egregious of these psychotherapies because it resorts to forcing heteronormative images on homosexual individuals. Whenever they respond positively to images of homosexual representation they would either be given a shock or any such extreme measures which create a mental aversion to whatever image or object that shock was associated to. Electric shocks have become more prevalent instead of aversion therapy. There have been attempts to make the individual adhere more to the stereotypes assigned to their gender like being more masculine or feminine and forcing individuals to date people of the other sex. This psychological attack on LGTBQ individuals has made it very difficult for them to approach mental health practitioners many of whom even in India still subscribe to such age-old ideas.
The second branch is medical practices, which are mainly focused upon the ideology that there is biological dysfunction that causes different sexual orientation and gender identity and hence can be cured with the prescription of medication like hormones or steroids. The report of the Independent expert also includes India in the list of countries where this practice of giving medication to “cure” homosexuality and the like persists. In 2015 an investigation was done by Mail Today which found that sexologists were running shops in Delhi selling medicines claiming to cure homosexuality with a 100% guarantee. In India ayurvedic, homoeopathic and traditional medicine have also been said to be in use.
The last branch is Faith-based practices. Different faiths are usually under the belief that there is something evil in those who have different sexual orientations and gender identities. Faith-based organisations put pressure on their members to abide by the gender binary heteronormative society. In India, there have been reports of babas and gurus claiming to cure homosexuality. They give directions for different prayers and sometimes even ask families to resort to violence. It is important to note that although religion can have a role to play in conversion therapy practices, not all religious groups are exclusionary. Many recognize diversity and give space to it. Hence in no way is this section attempting to attack religious groups.
Some other practices that do not necessarily fall into these branches but are still practised are discussed here. Extremely violative practice like “corrective rape” is performed on homosexuals attempting to change their orientation by forcing them to have sexual intercourse with individuals of the opposite sex. Many are subjected to violent abuse, starvation and isolation as means of correcting these “defiant” individuals, along with harsher actions like castration of individuals. As is apparent these methods are all very demeaning and dehumanising. It takes choice away from individuals and puts it in the hands of the society that wishes to dictate who the individuals want to love. There is no doubt great mental harm caused to these individuals. According to The Trevor Project, which is one of the leading organisations reporting on the prevention of suicide and suicide rates of LGBTQ youth, LGB youth who come from highly rejecting families are 8.4 times more likely to have attempted suicide. We need to protect these individuals from physical and mental violence. As will be discussed later on, these practices violate many basic human rights and hence should be completely banned everywhere.
The mid-20th century saw the rise of gay rights movements with many organizations coming into existence around the world. Cultuur en Ontspannings Centrum(COC) in Amsterdam and the Mattachine Society in Los Angeles are two such examples. But the 70s and 80s were the most colourful years for gay political rights as more and more organisations started popping up and more groups started joining the movement. Women were becoming more involved along with Trans people. In 1961, Illinois became the first American state to remove the anti-sodomy law. In 1967, United Kingdom brought in the Sexual Offences Act which effectively legalised consensual sexual relations between same-sex adult men. The catalyst of LGBTQI+ activism was the Stonewall riots that took place in America in 1969 following the raid by police officials on a gay club by the name of Stonewall Inn. This was the last straw for the Queer community because such raids on gay clubs were being carried out for months by officials, denying people the little freedom and respite they had found. It acted as a springboard for the continued movement for equality for the community.
In 1993, Hawaii became the first state in the USA to find that ban on same-sex marriage was discrimination on the basis of sex. In 2001, Netherlands became the first country to legally recognise same-sex marriage. According to the Human Rights Campaign Foundation, which tracks the development of legal recognition for same-sex marriage in different countries, currently, there are only 29 countries that legalise same-sex marriage.
When we look at India and many previously colonised countries, the progress is much slower. Neighbouring countries like Malaysia, Singapore, Bangladesh and Sri Lanka to name a few still do not recognise the rights of LGBT individuals. In India after a long battle, in 2018 the Supreme Court of India decriminalised homosexuality in the case of Navtej Singh Johar v Union of India.
This was the position of the administrative and legal services. When we look at the medical field, progress was underway. The American Psychiatric Association(APA) in 1973 took the first step by removing homosexuality as a mental illness from the Diagnostic and Statistical Manual(DSM)-II, which is the official compendium released by the APA which classifies different mental illnesses and their diagnosis. But it took some time to fully understand the true position of APA on this matter for they kept replacing it with some new term and a different phrasing to essentially explain homosexuality as a mental illness. In 1987, APA solidified its stance by completely removing homosexuality from the DSM-III. And in 1998 APA released a specific position statement firmly denouncing conversion therapy. This was a big move because while it has taken psychiatrists years to change their perception towards homosexuality, APA’s declaration was a welcome move. The WHO also has denounced this practice by removing homosexuality from its International Classification of Diseases (ICD)-10 and further denounced the practice of conversion therapy in a position statement released by the Pan-American Health Organisation, Regional Office of the WHO, titled ‘“Cures” for an illness that does not exist: Purported Therapies aimed at changing sexual orientation lack medical justification and are ethically unacceptable’. In the conclusion of the statement, PAHO-WHO clearly states-
‘‘Reparative’ or ‘Conversion’ therapies have no medical indication and represent a severe threat to the health and human rights of the affected persons. They constitute unjustifiable practices that should be denounced and subject to adequate sanctions and penalties.’
Additionally, many religious leaders are also coming together to call for the banning of conversion therapy. The BBC reported that a declaration was launched at a conference sponsored by the Foreign, Commonwealth and Development Office (FCDO) which was signed by over 370 religious leaders calling for a ban on conversion therapy. This is a very encouraging sign that more awareness is reaching different groups including religion.
Also read: LIVE-IN RELATIONSHIP AND THE INDIAN LAWS
In India, things have been slightly different. Acceptance of course is miles away, but around the time APA was changing its position on homosexuality and conversion therapy, the Indian Psychiatric Society (IPS) was conducting studies on the so-called “success” of conversion therapy. Finally, in 2014, the IPS released a position statement that homosexuality was not a mental illness and could not be treated through conversion therapy.
In fact just to decriminalise homosexuality there was a long back and forth in the form of different Supreme Court judgments on the issue until 2018. In India like in many colonised countries, the British had left section 377 in the Indian Penal Code, 1860 which criminalised carnal intercourse against the order of nature and by extension criminalised sexual intercourse between two consenting adults of the same sex. The court in 2018 decriminalised only the portion of the section which deals with intercourse between adults- men or women but has kept the provisions regarding bestiality or intercourse with an animal as an offence. The section was held unconstitutional because it violated the right to privacy of consenting adults who wished to have relations within their personal lives.
However, the conversation around conversion therapy gained momentum in 2020 when a young Lesbian woman by the name of Anjana Harish committed suicide due to allegedly being forced into conversion therapy for two months. She was put in two different de-addiction centres and was prescribed heavy medication according to reports. She posted a Facebook video containing all the allegations which acted as a springboard to launch more conversations around the harmful practice of conversion therapy and the community was looking to the decision-makers, lawmakers and the judiciary for an answer.
LEGALITY OF THE ISSUE-
After much wait, the judiciary finally stepped in to answer the big question regarding the status of conversion therapy in India. In the absence of any legislation regarding this matter, the court declared it unconstitutional and barred the practice in the case of S. Sushma v. Commissioner of Police. The facts of the case were that a lesbian couple ran away from their homes in Madurai to Chennai due to the opposition from their families. They received help and shelter from an NGO and wanted to live independently. However missing complaints were filed for the two of them and the police tried to interrogate them at their residence, additionally filing two FIRs against them. Originally the petition was submitted by the two women requesting protection from harassment and any other disturbance that might threaten their peace and safety. The original crux of the issue was solved in the first hearing in the Madras High Court. In an order passed on 22/03/2021, the Court ordered protection for the petitioners but it was further posted for an in-camera proceeding on 29/03/2021 seeing the sensitivity of the issue. The court decided to send the families and the women to individual counselling with a counselling psychologist in hopes of some reconciliation. The report of the counsellor was then dealt with on 28/04/2021. It was in this session that the learned judge Justice N.A. Venkatesh declared that he wanted to become more educated on the issue of LGBTQIA+ relations and individuals and decided to undergo counselling himself because it was a matter where he couldn’t decide just “from the mind” but also from deep within the heart. It is a touching gesture indeed seeing the judiciary taking more interest in learning about same-sex relations. Justice Venkatesh further had a conversation with Dr Trinetra Haldar Gummaraju, a transwoman who is well known in the community. With all these conversations Justice Venkatesh laid down the legality of the issue. The different rights that were being violated were explained with many case laws.
When we look at the first Fundamental Right which is being violated we have Article 14 of the Constitution which provides that the state cannot deny any person equality before the law or the equal protection of the laws within the Indian territory. So the Constitution provides a general guarantee of equality. Moving on to more specific protection, here the constitution is a bit ambiguous. Article 15(1) of the Constitution provides that the state cannot discriminate against any citizen on grounds of religion, race, caste, sex, place of birth or any of them. However, there is no specific provision for discrimination on the grounds of sexual orientation and gender identity because when ‘sex’ is being referred to, it only refers to the gender binary.
Justice Venkatesh by referring to cases from Canada, South Africa and the United Kingdom was able to establish that how around the world sexual orientation and gender identity is becoming a ground for discrimination and also how the word ‘sex’ can be inclusive of the same. Finally turning to our own case laws Justice Venkatesh was able to make it clear that even in India the position is the same. In Naz Foundation v. Government of the NCT of Delhi, Chief Justice A.P. Shah held that-
“…sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by Article 15.”
In NALSA v. Union of India, a two-judge bench was addressing the grievance of the transgender community and held that,
“Gender identity as already indicated forms the core of one’s personal self-based on self-identification, not on surgical or medical procedure. Gender identity, in our view, is an integral part of sex and no citizen can be discriminated on the ground of gender identity, including those who identify as the third gender.”
Hence this judgement further affirmed that sexual orientation and gender identity form an integral part of the ‘sex’ of an individual and hence discrimination on the grounds of the two should be covered under Article 15 as well. This discussion was perfectly rounded out by Justice Venkatesh in his statement,
“The “grounds” enumerated in Article 15 of the Constitution are not water-tight compartments to be viewed divorced from discrimination which is the sheet anchor of the provision. The grounds are merely instruments to find and eliminate discrimination and are, therefore, a means to an end. Discrimination 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.”
The Navtej Singh Johar case established without doubt that within the right to life under Article 21, the right to privacy was an integral part and following that also protected the decision of individuals to be the partner of their choice and have whatever relations they want to have with them. This right also encompasses the right to sexual autonomy and freedom of expression. Hence when it comes to the rights of the LGBTQIA+ individual, Articles 14,15 and 21 of the Constitution of India must be read together in conjunction with each other.
In pursuance of equal rights and treatment of LGBTQIA+ individuals, the court took the steps to form interim guidelines which ensure that protection is extended to queer individuals in distress. But along with these guidelines, the court went a step further to lay out sensitization programs on different levels by different stakeholders. Of course, the proper execution of these is necessary to reap the full benefits.
It is disconcerting to see that only 7 countries around the world have provisions regarding penal provisions for conversion therapy. and only 5 countries explicitly have banned conversion therapy namely- Ecuador, Malta, Brazil, Taiwan and Germany. There are indirect bans in Argentina, Uruguay, Samoa, Fiji and Naura and regional bans in some states of the USA, Canada, Australia and Spain.
Legislation in India is still a distant dream seeing how the government recently denied that same-sex couples had a right to marry or get their marriage registered because according to them it would destroy the social fabric. If this is the outlook then it would take time to make legislative provisions for the safety and welfare of the community. But until then these guidelines if followed and implemented well would act as a great respite for the queer community. In the past, we have seen instances where due to legislative vacuum the court’s guidelines have acted as a temporary law, one example of which is the DK Basu guidelines. Hence we can hope for the success of these guidelines as well.
The judgement was a big leap forward to create more awareness of the concerns and distress of the LGBTQIA+ community. The court took great steps to understand the same and it was well-received by the community as well. At the core of it, of course, law and society need to move hand in hand, and while it will take time to change the mindset of the society, the only respite these injured parties have is the law. And so it is encouraging to see that the law has progressed and is trying to become more open-minded and welcoming of diversity.
 S. Sushma v. Commissioner of Police, 2021 SCC OnLine Mad 2096.
 Sangeeth Sebastian, Kumar Vikram, “Mail Today Exclusive: Delhi doctors use electric shock to treat homosexuality”, India Today, 27 May 2015, available at: Delhi doctors use electric shock to treat homosexuality – Mail Today News (indiatoday.in) (last visited on- 15 July 2021).
 The Trevor Project, “Preventing Suicide: Facts about Suicide”, available at: https://www.thetrevorproject.org/resources/preventing-suicide/facts-about-suicide/ (last visited on-17 July 2021).
 History.com, available at: https://www.history.com/topics/gay-rights/history-of-gay-rights (last visited on- 21 July 2021).
 (2018) 10 SCC.
 American Psychiatry Association, “APA Reiterates strong opposition to conversion therapy”, available at: APA Reiterates Strong Opposition to Conversion Therapy (psychiatry.org)(last visited on- 21 July 2021).
 Pan American Health Organization: Regional Office of the World Health Organization, “Cures” for an Illness That Does Not Exist: Purported therapies aimed at changing sexual orientation lack medical justification and are ethically unacceptable(2012), available at: http://www.paho.org/hq/index.php?option=com_docman&task=doc_view&gid=17703 (last visited on- 17 July 2021).
 Harry Farly, “Gay conversion therapy: Hundreds of religious leaders call for ban”, BBC News, 16 December 2020, available at: Gay conversion therapy: Hundreds of religious leaders call for ban – BBC News (Last visited on- 21 July 2021).
 Bhanuj Kappal, “The pain and cruelty of conversion therapy”, Mint, 14 June 2020, available at: The pain and cruelty of ‘conversion therapy’ (livemint.com) (Last visited on- 21 July 2021).
 2010 Cri LJ 94.
 (2014) 5 SCC 438.
 Abhinav Garg, “No fundamental right to same-sex marriage, says Centre”, The Times of India, 26 February 2021, Available at: <https://timesofindia.indiatimes.com/india/same-sex-relationships-not-comparable-with-india-family-unit-made-of-biological-man-and-woman-centre-tells-hc/articleshow/81218712.cms> [Accessed 7 April 2021].
Author: NIRUKTA KRISHNAN, HIDAYATULLAH NATIONAL LAW UNIVERITY, RAIPUR
Editor: Kanishka Vaish, Senior Editor, LexLife India.