CONVERTING THE CLOSETED: LEGALITY OF CONVERSION THERAPY IN THE BACKDROP OF HUMAN RIGHTS

Introduction

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