CONVERTING THE CLOSETED: LEGALITY OF CONVERSION THERAPY IN THE BACKDROP OF HUMAN RIGHTS
The Navtej Singh Johar judgement of 2018 was a historic decision in India which struck down the colonial legislation that criminalised homosexuality. The five-judge bench had unanimously read down Section 377 of the Indian Penal Code and India thus took one step towards the promises of equality and dignity that its Constitution offers. However, despite a world-wide recognition that homosexuality is not a mental illness, certain sections of society continue to treat it as one. What follows are the atrocities that people from the LGBTQ+ community continue to face. One such is in the form of 'conversion therapy'.
Conversion Therapy entails those practises that falsely claim to change a person’s sexual orientation and gender identity. These practices also involve painful methods including electroconvulsive treatments (shock therapy) and castration besides hormonal therapy and masturbatory reconditioning. Conversion therapy has been discredited by the medical community not only because of the lack of scientific base but also because it exposes the victims to several risks including depression, anxiety and suicidality.
This article will scrutinize the legality of conversion therapy, demonstrate that this practice is in violationof human rights and lastly argue for the need of laws against conversion therapy.
The International Status of Conversion Therapy
Several International Covenants on human rights, as discussed further, have condemned the practise of conversion therapy. As declared by the Human Rights Council, every person is entitled to the highest attainable standard of physical and mental health. People who undergo such therapy are likely to experience grave mental and long-term physical health problems. It is a clear violation of their basic human rights. The United Nation’s Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment calls for states to repeal laws that allow conversion therapy (para no. 72(i)) as they amount to torture and ill-treatment (para no. 13). The therapy is an intrusion of the integrity and autonomy of a person and a violation of their sexual and reproductive health.
Countries must be obligated to protect the psychological integrity of people along with their freedom of expression. The United Nations Independent Expert on protection against violence and discrimination based on Sexual Orientation and Gender Identity (IESOGI) has recommended to ban all the practises of conversion therapy (para no. 87(a) of IESOGI Report titled ‘Practices of the so-called conversion therapy’). A similar declaration was also adopted under the Yogyakarta Principles (Principle 10).
The International Covenant on Economic, Social and Cultural Rights (ICESCR) provides for human rights in the context of mental and physical health to be guaranteed without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status (Article 2). Although it does not directly address the issue of conversion therapy, the Committee on Economic, Social and Cultural Rights (CESCR) ,which is a body of 18 independent experts that monitors implementation of the ICESCR, has recognised that the term ‘other status’ in the article includes sexual orientation. The therapy discriminates people on the basis of their sexual orientation or identity and therefore subjects them to serious human rights violations. It is thus argued that given the horrors meted out by the therapy, policies (or the lack of them) that perpetuate this practise are detrimental. For example, the non-acknowledgment of non-heterosexual and trans identities in the formal sector are likely to perpetuate the stigma of people who do not conform to the normative genders/sexual identities. Such people would then be continually subjected to the therapy culminating to human rights abuse and violation of the obligations under these agreements. Conversion therapy has been banned in several countries like Brazil, Ecuador, Taiwan, Germany, Malta and in 20 states of the U.S. A. In a landmark case of Pickup et al. v. Brown et al. and Welch et al. v. Brown et al. in California, the court had upheld a law prohibiting state-licensed health providers from engaging in conversion therapy with patients. Around the world, lawmakers have made attempts to formulate legislation in order to curb this practise. However, it is pertinent that such legislations need to be specific in their guidance because a hurried adoption of penal legislations that merely impose criminal sanctions on these practises, often ignores the care and support that the victims require.
Current position and the need to outlaw conversion therapy in India
At the very first instance, Article 21 of the Indian Constitution grants the citizens the right to life and personal liberty. This article has been liberally interpreted by courts to ensure that it means more than just survival or existence. The Supreme Court in the case of Common Cause v. Union of India had recognised the right to autonomy of a person and had further stated that when it comes to medical procedures, a person has the right to choose whether he orshe is willing to participate in them. Conversion therapy without consent is thus a violation of a person’s right to self-determination with respect to their body.
Further, the right to privacy enshrined under Article 21 invariably includes the inviolability of a person’s body. The Navtej Singh Johar judgement had further acknowledged decisional autonomy pertaining to a person’s physical and mental health along with the right to privacy that extends to modification of body appearance or functions. Additionally, the court had also stressed upon the accountability of medical health professionals. In the case of National Legal Services Authority (NALSA) v. Union of India, the court had duly acknowledged the Yogyakarta principles that protect an individual’s right to be safeguarded against practises that seek to change their sexual orientation or identity. Recently, the Delhi High Court had issued a notice to the Delhi police to protect a lesbian woman who was forcefully married to a man and was threatened to be subjected to therapy to ‘cure’ her sexual orientation.
In India, the Mental Health Care Act, 2017 prohibits medical professionals from discriminating against people based on gender and sexual identity. Not only this, but it also necessitates the presence of consent before any treatment is performed on them and further condemns methods that degrade patients. All of the above indicate that laws in the country are inclined against conversion therapy. However, a separate law that addresses the issue of conversion therapy is required because the Mental Health Care Act has its limitation that the concept of ‘informed consent’ can easily be diluted if the individual is persuaded into believing that homosexuality is in fact a mental disorder.
In the last year, the suicide of Anjana Harish after she was forcefully subjected to conversion therapy by her family, had created an uproar in the LGBTQ+ community. This is not an isolated incident where homosexuality was treated as a disorder and doctors continued to employ methods to ‘correct’ it. The continuation of these practises, despite judgements and medical experts stating to the contrary, indicates the lack of social acceptance. When doctors keep providing reparative therapy, it further solidifies people’s beliefs, and this potentially overshadows the decriminalisation and acceptance of homosexuality.
The state can back its reasoning for the need to criminalise conversion therapy based on the recognition that the freedom of sexual orientation has already been provided under Indian laws. There need to be unambiguous laws that prohibit practises of conversion therapy not only in India but worldwide. It should be ensured that the advertising of these practises is curbed in public and private spheres. India needs to fulfil its obligations under the international human rights covenants to protect people from this practise that amounts to cruel and degrading treatment. Furthermore, the victims of such violence are to be given the right rehabilitation and access to appropriate medical care along with legal reliefs. It should be ensured that they seek legal advice and are compensated adequately for the mental and/or physical harm that is caused to them. The young population needs to be urgently protected through preventive programs that ensure that they will not be subjected to such therapy. This could include educating the public on the ineffectiveness of the therapy and aiding the civil society organisations’ efforts in this regard to ensure that they would not be subjected to such therapy.
It is important to note here that conversion therapy encapsulates multiple methods like religious counselling, talk therapy and the worst of all, physical and mental assault. Treading carefully in the process of criminalisation of these practises is requisite to ensure that it does not translate into a restriction of the freedom of expression and belief. The state needs to ensure that there remains a balance in human rights and consistency with the principles enshrined under international human rights agreements. The prohibitions thus need to be comprehensive and lucid.
The practise of conversion therapy is a menace to society and deprivation of the right to life for the people of non-normative sexual orientations. While it is being increasingly recognised as dangerous and an emphasis to ban this practise has been provided by many nations, India is yet to meet the global standards of human rights when it allows this practise to continue.
As mentioned above, a separate law with careful consideration of different rights involved is the need of the hour. Moreover, efforts to raise awareness among the society that even today stigmatises the LGBTQ+ community could be effective in invalidating the practise of conversion therapy. Establishing communication with medical professionals, parents, educational institutions, etc., and presenting the gross human rights violations that conversion therapy entails could be a laudable step in protecting individuals and ensuring de-pathologizing in the community regarding diverse sexual orientations and identities whichs could consequently promote their social inclusion.
Title Image Source : HRW
This article has been written by Riddhi Bang. Riddhi is a second year law student studying at NALSAR University of Law, Hyderabad.