Why we need a law against ‘conversion therapy’ in India

The recent suicide of a 21-year-old queer woman from Kerala has put the spotlight on practices that involve violent, invasive and traumatic methods to suppress an individual’s non-heteronormative sexual orientation

The Supreme Court set a milestone for LGBTQ+ rights in India when it decriminalised consensual homosexual relations under Section 377 of the Indian Penal Code. However, it is still the first step to many reforms required for the LGBTQ+ community for them to be able to lead a dignified life, like any citizen of India.

In a recent case, Anjana, 21-year-old queer woman from Kerala, killed herself after her family rejected her sexual orientation and put her in a ‘conversion therapy’ institution where she was isolated and tortured into changing her sexual orientation.

‘Conversion therapy’ includes violent, invasive and traumatic methods to suppress an individual’s non-heteronormative sexual orientation. These practices often include religious indoctrination, hormonal treatments and electroconvulsive treatment. These practices have been condemned worldwide by psychiatric and mental health institutions for having no proven scientific basis to be able to change a person’s sexual orientation. Many countries, such as Australia and Germany have even gone a step further to enact laws banning and criminalising ‘conversion therapy’. Countries like Canada are in the process of moving bills to criminalise this practice.

Courts and laws on mental health of the LGBTQ+ community

The Supreme Court in National Legal Services Authority (Nalsa) v. Union of India, recognised the Yogyakarta Principles, which include, the right of an individual to be protected from any medical or psychological treatment or confinement to a medical facility based on their sexual orientation or gender identity.

The Supreme Court also examined the mental health of members of the LGBTQ+ community in Navtej Singh Johar v. Union of India and emphasized the accountability of mental health professionals who offer mental health care services to the LGBTQ+ community. While recognising that homosexuality is not a mental disorder, it stated that counselling practices should be motivated to support the LGBTQ+ community feel comfortable with their identities.

The Mental Health Care Act, 2017 stipulates that no patients can be discriminated against, on the basis of gender and sexual orientation, by mental health professionals. Furthermore, ‘informed consent’ must be sought from the patients before treating them. This Act also aims to eradicate inhumane and harsh methods that are used to treat patients along with the degrading manner in which patients are kept at mental health facilities. However, it only imputes liability on medical professionals and the State.

Need for a separate law

Although the Mental Health Care Act can be used to grant limited protections to the LGBTQ+ community against the atrocious practice of ‘conversion therapy’, a separate law is required to address this issue. The Act has limitations because the LGBTQ+ community cannot be deemed as mental health patients under the Act just by virtue of their sexual orientation. Further, the concept of ‘informed consent’ fails to protect an individual who has been brainwashed into believing that their sexuality is a disorder and consents to undergo these torturous practices to conform to societal beliefs.

A recent study on the statistical data around conversion therapy reveals that the aggressive use of this practice has a direct correlation to societal beliefs about the LGBTQ+ community and the extent of unacceptability towards them. More often, the primary perpetrators of this practice are family, relatives and non-medical professionals who do so in furtherance of religion, culture, etc. As a healthy step to societal change in the attitude towards the LGBTQ+ community, it is imperative that the responsibility is not solely put on the mental health practitioners.

In the case of Anjana, her family filed a missing person's report to use the police to pressurise her into returning home. This is how state mechanisms, that tend to view a family as sacrosanct, can be manipulated to harass the LGBTQ+ community. Therefore, there is a need to criminalise these practices for the people coercing an individual to undergo ‘conversion therapy’ as well. The criminalisation of this practice creates a positive right in favour of the LGBTQ+ community that is more effectively enforceable as a protection mechanism against ‘conversion therapy’ and gives the State more scope to intervene. The individual should also be able to use this ground to file for separation from their perpetrators if it included their family.

It is imperative that the State steps in by enacting specific laws that give positive rights to the LGBTQ+ community and equal opportunities to lead a dignified life.

(Aparimita Pratap is recent graduate from the West Bengal National University of Juridical Sciences, Kolkata, and is currently practicing in the Bombay High Court)

Disclaimer: The views expressed above are the author’s own. They do not necessarily reflect the views of DH.