BANNING CONVERSION THERAPY; THE ‘CURE’ FOR THE ‘QUEER’
Authored By-Anoop Chandran S
“Ignorance is no justification for normalising any form of discrimination”1 - Madras HC
A democratic society with a constitution as its foundation is predicated on freedom and individual dignity. Liberty in its strict sense is not at all a collective phenomenon. It takes an individualist approach where everybody's free to express their personality in public without any external entanglement. The LGBTQIA+ (Lesbian, Gay. Bisexual, Transgender, Queer and Intersex…..) population of India have a long history of ostracization and socio-legal defacement. Although their rights to express their identity and right to sexual autonomy was affirmed by the Supreme Court of India in 2018, the general social perception with respect to the non cis-gender identity really hasn’t progressed. A substantial portion of the Indian society still considers it to be an ill-phenomenon or pervasion which can be ‘corrected’ with practices like “Conversion Therapy” . In result, such practices are frequently carried out on LGBTQIA+ people under the guise of treating or curing non cis gender sexuality.
Conversion therapy means a pseudo scientific practice that purports to ‘cure’ the queer sexuality or sexual orientation. In practical it is employed as a ‘corrective’ technique used to stop some one being queer or bisexual. It appears to be performed by professionals including doctors, psychiatrists, psychologists, sexologists as well as religious or spiritual leaders and family members. It encompasses a spectrum of activities, behavioural, cognitive and psychological which is directed to alter one’s sexual identitity, and in extreme cases includes procedures like ‘corrective rape’ and ‘electroconvulsive therapy’.
The history of conversion treatments dates back to the early 1920s, when homosexuality and other allied gender identities were thought to be inherited defects. The practice is conducted with both adults as well as minors who are gay, lesbian, trangender, bisexual, asexual or intersex as the case may be. The gender normative assumptions continued to preclude varied gender identities and failed to value diversity, which in turn fuelled the menace of these practices. It is pertinent to note that, there is no empirical evidence to support pathologizing or medicalising the variations in one’s gender identity. It has been reported that such sexual orientation change practices can have long term emotional, physical and psychological repurcussions among the victimized individual including suicidal thoughts, physical harm, anxiety, depression, self-shame etc. In the line, in 1990, the World Health Organization (WHO) declassified ‘homosexuality’ as a pathology or disease, and transsexuality was declassified in 2019. According to them, the right to health includes freedom from torture or non-consensual medical treatment and experimentation. In June 2020, the UN Human Rights Council received a report on conversion therapy by an independent expert on gender and sexuality, Victor Madrigal-Borloz, according to which, on research carried out in more than 100 countries where conversion therapy is practised, 8,000 respondents who had underwent it were examined, and 98% of them claimed that it had damaged them psychologically or physically.2
Internationally, many countries have outlawed conversion therapy. Regarding India, in 2018, the Indian Psychiatric Society has repudiated the practice of conversion therapy and released a statement explicitly and completely discrediting the same. Additionally in Sushamma and Anr vs. Commr of Police and Ors3, the Madras High Court recently prohibited the practice in the state of Tamil Nadu, as it being violative of the fundamental rights of the people belonging to the LGBTQIA+ population. Although there have been encouraging steps from various directions, in the absence of a comprehensive legislation regarding the same, the practices of conversion therapy continues to breath in many parts of India.
Conversion Therapy : Defined
Definitions of conversion therapy vary. There can be no straight cut exhaustive definition for the term “conversion therapy”. However generally, it could be interpreted as the “employment of different means to alter a person's sexual orientation to heterosexuality or gender identification to match to the sex the person has or was recognised as having at birth”. Inspite of the fact that different anti-conversion therapy laws across different countries defines it in varied manner, they all contain more or less similar phrases such as ‘changing’, ‘modifying’, ‘altering’, ‘supress’, ‘oppress’, ‘repress’ etc. of sexual orientation or gender identity. However some of them take account of the grounds of gender identity and sexual orientation while some others, sexual orientation only. In this regard Malta’s anti Conversion Therapy Law4 took an all encompassing stance which take into account conversion therapy on the grounds of gender identity, gender expression and sexual orientation and explicitly declares that no particular combination of above three should be treated as a disorder or disease. Gender identity is a person’s internal sense of their gender. It is not necessary that it should correspond to their gender assigned by birth. It may not be outwardly visible to others. Gender Expression on the other hand, refers to the manifestation of a person’s gender identity by them. It is the way a person presents his gender identity outwardly through behavior, clothing, voice etc, as perceived by others. Sexual oritentation is entirely different from both these terms but indeed is influenced by them. It refers to the physical, mental or emotional attraction of a person to another person, either of opposite gender or of same gender or even the absence of such attractions (asexual). Conversion therapy should be therfore interpreted to include any sustained efforts as to interfere with any of these characteristics of a person.
A mere literal construction of the term ‘conversion therapy’ would seemingly results in a notion that it is a ‘treatment’, done by qualified persons. But this would be inappropriate in the empirical context. Nowadays, conversion therapy is performed not only by medical practioners but also by unqualified quacks, families and even spiritual or religious groups.
While conversion therapy includes practices that interferes with a person’s sexual autonomy, it does not include any assistance or councilling for self exploration of person’s identity with regard to any of the charecteristics discussed herein. It is also to be noted that in the modern societal frame work conversion therapy is being re-braned as ‘Reperative Therapy’, Sexual Orientation Change Efforts and other Similar names. Hence any attempt to define the term conversion therapy must take a non exhaustive approach to cover all sustained efforts to alters one’s gender identity, expression and sexual orientation, rather than those qualify to be ‘treatments’. Thus in the light of the aforementioned considerations, conversion therapy could be defined as follows. “Conversion therapy means and includes any treatement, therapy or sustained efforts of any kind, with the aim to change, repress or modify a person’s gender identity or gender expression or sexual orientation or a combination of these,, by any other person, including but not limited to medical practioners, and shall not include any counselling, or psychologic assistance related to the exploration of one’s identity with regard to any of the characters mentioned above by a qualified person.”
It should be noted that conversion therapy must not include any methods or attempts aimed at the exploration of one’s gender identity. However, there is only a thin line of distinction between acts directed towards conversion of gender identity and exploration of gender identity. These has to be construed case by case with reference to the facts and circumstances of the same. It should also be noted that the phrase ‘conversion of gender identity’ cannot be taken to mean a Sex Reassignment Surgery done by a qualified professional.
Conversion Therapy : The Indian Context
Conversion therapy and allied efforts to modify a person’s sexual orientation is not a novel phenomenon to the Indian society. The conventional aversion technique adopted to rehabilitate potential drunkards and to cure other addictions, has gradually evolved into the use of similar techniques to ‘correct’ one’s gender identity and sexual orientation. The history of such practices in India dates back to the early 1970’s itself where in, an abhorrent experiment was carried out at the Psychiatry Department of All India Institute of Medical Sciences (AIIMS) which claimed to have successfully 'converted' homosexual persons to heterosexual persons with a number of aversion techniques.
The results were later on published in the Indian Journal of Psychiatry in 1983. The techniques used in the study involved visual and sensory stimuli, sound therapy and even electric shock therapy. Gradually, it evolved as a ‘Clinical Technique’ of ‘curing’ , ‘queer’ sexuality, bare any scientific proof or evidence. For many a years even the medical fraternity considered homosexuality and other non cis gender variants as a sort of abnormality which required conversion therapy. An independent investigation conducted by the Mail Today in 2015 revealed that, even licensed doctors are engaged in the business of conversion therapy and it included a spectrum of dubious procedures ranging from giving electric shocks or nausea-inducing drugs, prescribing testosterone or talk therapy - which can lead to depression, anxiety, seizures, drug use and suicidal tendencies.
Over the time, owing to the growing consciousness on gender identities in the international medico-legal stream, the stance of Indian Medical fraternity on conversion therapy has also changed gradually and subsequently with the supreme court judgement in Navtej Singh Johar v. Union of India5. Indian Psychiatric Society had indubitably discredited the practice of conversion therapy in 2018. However that wasn’t the end and the gender normative assumptions related with conversion therapy continued to percolate in the society. Some of the recent incidents illustrates how it is being used as a potent weapon against the sexual minority communities of the country. In may 2020, a 21 year old bisexual female Anjana Harish, hailing from Kerala has died by suicide in Goa, after posting a video on social media claiming the hardships she suffered after being subjected to months long conversion therapy by her family which eventually became one of the causes for her suicide6. In another incident, a 23 year old lesbian girl from Tamilnadu, Pavithra articulated the barbaric reality of such conversion practices, after her family taken her to multiple doctors including a general physician, gynaecologist and a psychologist to cure her “lesbian problem”7. Moreover, the anecdotes8 published by the Times of India, in May 2020, divulge the persecution of the country's sexual minorities in the name of ‘conversion therapy’. Additionally, according to statistics from the Crisis Intervention Team of LGBT Collective in Telangana, India, there have been 15 reported instances of corrective rape, a particular form of conversion therapy, that have been reported in the last five years. Only a small number of cases, nevertheless, have surfaced. The actual numbers are probably far higher because conversion therapies are often performed in secrecy, especially those by spiritual godmen and religious groups.
Need For Prohibition
The degrading nature of such psuedo therapeutic interventions, including physical torture and anti LGBTQ epithets, contribute to an overall dehumanizing environment to the persons with non-binary sexual orientation. There is a strong consensus on impropriety and inefficacy of the practice by National and International organizations, experts and licensed Medical and mental health care practitioners, as well as legal professionals.
American Medical Association, in its statement reported,
"Our AMA… opposes, the use of 'reparative' or 'conversion' therapy that is based upon the assumption that homosexuality per se is a mental disorder or based upon the a priori assumption that the patient should change his/her homosexual orientation."9
According to American Psychiatric Association;
The potential risks of “reparative therapy” are great and include depression, anxiety, and self-destructive behavior, since therapist alignment with societal prejudices against homosexuality may reinforce self-hatred already experienced by the patient. Many patients who have undergone “reparative therapy” relate that they were inaccurately told that homosexuals are lonely, unhappy individuals who never achieve acceptance or satisfaction. The possibility that the person might achieve happiness and satisfying interpersonal relationships as a gay man or lesbian are not presented, nor are alternative approaches to dealing with the effects of societal stigmatization discussed...10
World Psychiatric Association stated ;
“There is no sound scientific evidence that innate sexual orientation can be changed. Furthermore, so-called treatments of homosexuality can create a setting in which prejudice and discrimination flourish, and they can be potentially harmful (Rao and Jacob 2012). The provision of any intervention purporting to “treat” something that is not a disorder is wholly unethical.”11(Emphasis Supplied)
The American Academy of Child and Adolescent Psychiatry, holds that;
The American Academy of Child and Adolescent Psychiatry finds no evidence to support the application of any “therapeutic intervention” operating under the premise that a specific sexual orientation, gender identity, and/or gender expression is pathological. Furthermore, based on the scientific evidence, the AACAP asserts that such “conversion therapies” (or other interventions imposed with the intent of promoting a particular sexual orientation and/or gender as a preferred outcome) lack scientific credibility and clinical utility. Additionally, there is evidence that such interventions are harmful. As a result, “conversion therapies” should not be part of any behavioral health treatment of children and adolescents.12
The Indian Psychiatric Society stated :
“…..there is no scientific evidence at all that attempts to convert a person’s orientation succeed in any manner. The Indian Psychiatric Society totally disapproves of any such treatments and urges that such therapies must cease forthwith.”13
Madras High Court in S. Sushama v. Commissioner of Police (2021), held;
“The society and my upbringing have always treated the terms ‘homosexual’,’gay’,’lesbian’ as anathema, a majority of the society would stand in the same position of ignorance and preconcieved notions……….Ignorance is no justification for normalizing any form of discrimination,”14
Furthermore in compliance with the orders of Madras High Court, the National Medical Commission
IMPACT ON FUNDAMENTAL RIGHTS
Gender identity is one of the most fundamental aspects of life which refers to a person’s intrinsic sense of being male, female, or transgender or transsexual person.15 Article 19(1)(a) of the constitution of India encompasses every individual, the right to freedom of speech and expression. It includes the liberty to express one’s opinion, views and even disagreement. Supreme court of India in the case of National Legal Services Authority v. Union of India16, interpreted the provision to include ‘Gender Identity’ as an aspect of ‘expression’ under Article 19(1)(a) and held that gender identity is integral to one’s personality and is one of the most basic aspects of self -determination, dignity and freedom. Moreover, each individual is guaranteed the right to life and personal liberty under Article 21 of the Constitution, which has later on evolved into an inexhaustive source of many other rights. Derived from Article 21, every person regardless of their sexual orientation is entitled to the right to sexual autonomy and bodily integrity as an aspect of privacy. This was given due recognition in the case of Justice (Retd.) K S Puttuswamy vs. Union of India17 where it was held that the right to life of every citizen is to be guarded by the state and is to be comprehended as not just a bodily right but a right in the fullest sense. Additionally, gender identity is a fundamental constituent of individual autonomy and self-expression, and falls within the scope of personal liberty protected by Article 21 of the Constitution.
The precarious therapeutic interventions such as conversion therapy, target a certain group of people exclusively based on their sexual orientation and gender identity, with an explicit intention of interfering with their bodily integrity and individual autonomy. Individual autonomy includes both the negative right of not to be subject to interference by others and the positive right of individuals to make decisions about their life, to express themselves and to choose which activities to take part in18.
Thus as, conversion therapy is not acknowledged as a legitimate form of treatment, any attempt assosiated with it that interferes with a person's natural sexual orientation would be against the fundamental human rights of an individual.
Professional misconduct can be defined as something done by a doctor in the profession, which is considered as disgraceful and dishonorable by his or her professional brethren of good repute and competence19. Professional misconduct by doctors is governed by The Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 made under Indian Medical Council (IMC) Act, 1956. A doctor has a duty of care in deciding whether to undertake the case or not, duty in deciding what treatment to give, the duty of care in the administration of that treatment, duty not to undertake any procedure beyond his or her control. It is expected that the doctor possesses a reasonable degree of skill and knowledge and exercises a reasonable degree of care20. Since homsexuality and bisexulaity has been declassified as a pathology by the medical fraternity in the country, any attempt to treat or cure something which is no longer a disease or disorder would explicitly go beyond the contours of professional etiquette and ethics. Recently in compliance to the orders of the Madras High Court, the National Medical Commission (NMC) have enlisted conversion therapy or LGBTQ therapy as a case of professional misconduct under the regulations of 2002.
India is a signatory to Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights(ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR) and UN Convention Against Torture, and other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT). According to a report submitted to the UN by independent experts, it is concluded that, conversion therapy results in long lasting psychological and physical damage and constitute the serious violation of right to dignity and non-discrimination,bodily autonomy, health, to freedom of conscience of religion, to free
expression and there by amounts to the violation of provisions of UDHR21 . Also, conversion therapy will directly contravene the UN Convention Against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment (UNCAT), as in certain cases, it involves physical abuses like electric shocks and corrective rape. Conversion therapy when administered in young children under 8 years of age could also violate the UN Convention on the Rights of Child. India, being a signatory to these conventions, is also under an international obligation to stop such discriminatory and disparaging practices against LGBTQ+ community and to safe guard their rights as basic human beings.
Banning Conversion Therapy : The Legal Frame Work
Some of the existing legislations could be used as a tool to combat the repercussions caused by conversion therapy though they donot explicitly ban the same. These are however only assistive provisions and sufferers from certain gaps and shortcomings.
Under Indian Criminal Jurisprudence there are some potential avenues for imparting criminal liability when physical violations are inflicted as a part of conversion therapy.
HURT : Section 319 IPC provides that, whoever causes bodily pain, disease or infirmity to any person is said to cause hurt22 . The expression ‘infirmity’ provided under this section also include any kind of temporary mental impairment or hysteria or terror. In Jashanmal Jhamatmal v. Brahmanan Sarupananda23 It was held that any act sufficient to cause a state of temporary mental impairment or hysteria can result in infirmity to mind and can attract section 319,IPC. Conversion therapy can inflict severe psychological impairment thorough increased risk of self-harm, depression, suicide ideation etc. on the victim. Hence such acts may prima facie fall within the scope of ‘hurt’ under section 319, IPC.
If ‘corrective rape’ or any other sexual assualt is perpetrated in the name of Conversion Therapy, provisions under sections 375, 294, 354A, 354B could be attracted.
As far as the sexual violation in the conversion therapy is concerned, sections 375, 294, 354A, 354B etc, do have a gender specific definitions which takes into consideration only those crimes perpetrated against a women, whereas, the trangender individuals, homosexual or asexual men who can also be potential victim for such abhorrent practices doesnot come with in the purview these provisions. This creates a gap in existing criminal law framework for the proper and effective implementation against the menace of conversion therapy as it lacks universal application. However, offence under section 319 of IPC, has a firm grip over conversion therapy.
AS MEDICAL NEGLIGENCE
Medical Negligence is subject to Criminal punishment under section 304A of IPC. Section 304A of IPC reads as :
[304A. Causing death by negligence.—Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.]24
In Dr. Lakshman Joshi case25 , apex court held that a doctor when consulted a patient owes him the duties of care , in deciding whether to undertake the case, in deciding the kind of treatment and in administering that treatment. A breach of any of the duties as mentioned above can attract criminal law of negligence as well as an action for damages under civil negligence. As conversion therapy has been declassfied to be a disorder both in Indian and International senario, any practitioner who conduct this practice on LGBTQIA+ individuals will attract the liability for medical negligence under section 304A of IPC. Also, this section is not only applicable to medical professionals who perform conversion therapy but equally applicable to any other person including religious groups, spiritual godmen etc, who perform such practices on individuals.
Weak Point :
In order to impose criminal liability for medical practitioners under section 304A, there must be a direct nexus between the death and negligent act. Considering the case of conversion therapy it
Weak Point :
Mental Health Care Act, 2017, specifically recognizes the right of persons with mental illness and provides for a framework for regulating any specific interventions thereof. Given that non-cis gender identity cannot be percieved a mental disorder or illness, using the Act in this may be extremely difficult to prove and to establish a prima facie case for medical negligence against the accused. Thus section 304 A has a very limited scope in respect of such unethical practices.
As conversion therapy is practiced without any proven scientific evidence, the person who is administering such a treatment is using false and misleading claims of changing sexual orientation Hence he can be held liable for a fraud on consumer within the scope of section 89 of Consumer Protection Act, 2019 and can be punished with an imprisonment for a term which may extend to two years and with a fine which may extend to ten lakh rupees.
Weak Point :
Section 89 of Consumer Protection Act, 2019 however deals with false or misleading claims made as advertisements. It is pertinent note in this context that, most of such ‘treatments’are often performed in secrecy with less promotion or advertisements. Hence the provisions also fails to address the issue in amore comprehensive manner as warranted by time.
Metal Health Care Act of 2017 explicitly regulates any interventions into the mental health and personal autonomy of a person without an informed consent. Informed consent as defined in the Act refers to a consent given for a specific intervention, without any force, undue influence, fraud, threat, mistake or misrepresentation. It should be obtained after disclosing the person adequate information regarding the risks and benefits of the treatment26 .
circumstance may be improper and contribute to the further perpetuation of existing stereotypes. Furthermore, the Mental Health Care Act, 2017, itself specifically provides that;
Mental illness of a person shall not be determined on the basis of,––
political, economic or social status or membership of a cultural, racial or religious group, or for any other reason not directly relevant to mental health status of the person;
non-conformity with moral, social, cultural, work or political values or religious beliefs prevailing in a person’s community27
Conversion therapy is not just limited to abberational physical acts but also includes other actives such as behavioural therapy, counselling etc so as induce changes in the sexual orientation or gender indenity of an individual. Currently it is difficult to put these non physical acts within the scope of any existing legislation. However some provisions of Mental Health Care Act, 2017, could be attracted but seems to be inappropriate.
Analysis And Suggestions
As discussed above, it is evident that there is no robust law in our existing legal regime which can comprehensively and effectively deal with the dangers of conversion therapy which itself is a pseudo physical psychological intervention lacking clinical utility. We are strictly in need of a comprehensive legislation to abridge the remedies scattered over various legislations to protect the LGBTQIA+ individuals from the menace of such predatory practices. Any legislation that intends to outlaw conversion therapy should base its approach on the following considerations.
There shall be an absolute prohibition on the practice of conversion therapy and allied efforts to alter one’s gender identity. It should not make any distinction between conversion therapy performed with consent or without consent. Law regulating conversion therapy in certain countries make it illegal only when such practices are done without the consent of the victimized individual. But it is relevant that, as conversion therapy per se is a pesudo scientifc procedure and the evidence is clear that it doesnot work, is explicitly unethical and unlawful, therefore the rule of consent in case of such a practice is totally immaterial. Additionally, recently in a
statement made before the Hon'ble. Madras High Court, the National Medical Commission clarified that any doctor found engaged in conversion therapy is liable to be prosecuted for professional misconduct.28 Thus, administration of an abhorrent practice denounced by the medical profession would not ratify the same on the ground that it is done with consent.
Ban should have Universal Application to protect every person regardless of their age or gender identity. It shall protect the rights of both homosexual men, women and transgenders of any age. Prohibition should extend to any attempt or sustained efforts to change the sexual orientation of a homosexual or asexual person to hetrosexual. It should be applicable to all persons who perpetrates any form of conversion therapy including medical practioners, psychologist, local counsellors, spiritual godmen, religious groups, ‘cosmic healers’ etc. Nonetheless, no person shall be disabled from accessing the assistance of a psychologist or a medical practitioner with regard to the exploration of his/her gender identity. Thus any counseling or related psychological assistance given to a person of diverse sexual orientation with regard to the exploration of gender identity or to a person suffering from the condition of Gender Dysphoria, should not be construed as a case of conversion therapy with in the scope of such prohibition.
Conversion therapy is indeed a ‘silent killer’ in the Indian Society. Conversion therapy that constitutes as an act of physical or sexual assault is already unlawful in this country under the existing penal laws. However considering the repercussions of these provisions as discussed earlier, there is need to legislate on the matter specifically criminalizing conversion therapy and its forms. These must include all sustained efforts that qualify to be conversion therapy which are motivated by the prejudices towards sexual minorities and aims to repress one’s gender identity in any way. The legislature in such cases must exercise caution to avoid overlapping of penal provisions especially when such practices amount to physical assaults, otherwise it would make prosecution arduous and hard.
Similarly, conversion therapy might be viewed as an "aggrevating factor" in the sentencing policy, when bodily harm is inflicted on individuals, along with the existing provisions of Indian Penal Code, 1860. In State of Gujarat v. Navalkishor Damodardas Patel29, where the sentence was increased by the High court on appeal on the ground of creating an unethical environment in the society and the court regarded this offense as grave and momentous. Conversion therapy do creates unethical and unwarranted prejudices against the LGBTQIA+ community in the society. It amounts to physical abuse of an individual with no reason or justification and amounts to humiliation solely on the basis of their perceived gender identity or gender expression. Hence conversion therapy could be considered as a potential aggravating factor by a judge upon conviction under section 319 or other relevant provisions of IPC.
Miscellaneous Prohibitions. Although banning conversion therapy is a helpful measure to prevent its serious consequences, there is a need for a radical change in the attitude towards non-cis gender groups of the society and to protect the country's sexual minorities from immoral and baseless social prejudices. Therefore a legislative initiative to outlaw the practice should in it take an all inclusive approach so as to prohibit the promotion and advertisements of such practices and also to look over the spreading of disinformation and false claims in the field of ‘curing’ gender identity or sexual orientation. With the contemporary digital ecosystem's rapid developments in information and communication technologies, this appears to be pertinent. In many nations including Germany, Spain, Malta, inter alia, where there is clear prohibition of conversion therapy, includes a probition on advertismeents too.
Apart from criminalisation, a number of civil measures can also be used to make the ban effective including but limited to, prohibitions on advertisements and promotion of conversion therapy and allied practices, grant of compensation for the victims, disqualification of a medical professional who engage in conversion therapy on ground of ‘professional mis conduct’ etc.
Three years post the Supreme Court of India struck down the repressive law criminalizing consensual homosexual relationship under section 377 of penal code30, nothing has been improved with regard to the social acceptance of the LGBTQIA+ sections of the country. People are often reluctant to come out from the hetronormative gender psychology, due to ingrained socio-religious prejudices related to homosexuality and allied sexual oritentations. Conversion therapy and similar repressive practices are the byproducts of such unsecientifc assumptions and such disinformation continues to percolate in the society. The judgment of the apex constitutional court of the land in Navatej Singh Johar31 was indeed a first hand porgressive step in direction of accepting and normalizing various gender identities, institutionalization of law is a drawn-out process. But a state which is founded on constitutional principles cannot eschew for long from providing its citizens a safe public sphere to reveal their true identity and to live with freedom and dignity.
A legislative attempt to criminalize the conversion therapy and related unethical practices would help greatly in materializing the concept of social acceptance of the margalized sexual minority sections of the country. Deterrence is possibly a better way to effect a social change in a society which is reluctant to change by itself. There are instances where criminalization of certain acts resulted in the achievement of desired ends. For example an analogy can be drawn between the criminalisation of female foeticide and a subsequent improvement in the sex ratio in the country and significant reduction in the rate of child marriage with the prohibition and criminalization of the same through the Prohibition of Child Marriage Act, 2006 (47% to 27%)32.
Child marriage, like homosexuality, had a religious cover, but a strict legislative interference could make a change in society to overcome such ridiculous religious beliefs. Indian society is typically an adaptive one and efforts to criminalize abrohhent practices against LGBTQIA+ would probably make a welcoming atmosphere for the sexual minorities in the post-Navatej Singh Johar era and there by accelerate their way towards social acceptance and progress.
Diversity is core of the Indian polity. While we had a tremendous history of embracing socio-cultural, religious and linguistic diversities, we failed to appreciate the gender diversities within our social sphere. Perception on non cis gender identity has gone wrong which resulted in social ostracization, and discrimnation of members of LGBTQIA+ community. This was probably because of the inoculation of heteronormative assumptions from the west. In the west, the history of psychiatric understandings of homosexuality was predicated on the idea that sexual deviance was something that could and ought to be corrected. Over the years these gender normative assumptions that, homosexuality is something which is an abnormality which required ‘treatment’ was imported to various European Colonies through Medico-legal and sociological institutions and India was also of no exception. This coupled with the prejudicial school of penal jurisprudence in India opened a dark chapter for the sexual minorities of the country. Later after years and protracted legal battles, the Supreme Court of India affirmed the rights of sexual minority individuals in its ruling in the case of Navatej Singh Johar v. Union of India33. Eventhough it was the beginning of a progressive and inclusive jurisprudence, the essence of the same failed to percolate into the contemporary social domain. As a result, the abhorrent attitudes and derogatory practices against the non cis gender identity continued as it was before. There is prodigious evidence that, practices like conversion therapy donot work, and can be detrimental to the members of the community in varying degrees. Recognizing this fact many countries around the globe are now creating inclusive policies for people of LGBTQIA+ communities and imposing restrictions or ban on such despicable practices against the community. In India too, some of the recent incidents underscore the difficulties and hardship the community is being subjected to, in the name of ‘fixing’ their ‘gender problem’.
Going with the International Standards, professional bodies in India including Indian Psychiatric Society, National Medical Commision etc, have declassified homosexualiy as a mental disorder and vehemently disowned the practices aims to cure such sexual behaviours. Hence an express ban and stricter penal regime is necessary to regulate such unlawful introversions on individual freedom and to develop an inclusive culture.