A great German thinker, Johann Wolfgang, once quoted “I am what I am, so take me as I am”. Ones’ definition of oneself is the glorious expression of individuality. However, with the pontifical social norms, rigid stereotypes and bigoted perceptions, certain sections of individuals are facing social exclusion and identity seclusion. The pages of epics and the walls of temples talk about the sexual fluidity. Globalized India placed sexuality in airtight compartments, therefore sealing the vivid history it has. Alternate sexualities were always conventional amongst us, but the question is have we ever considered them a part of us?
Well, the answer is clearly ‘NO’. Recently, we got to hear disturbing news surrounding the suicide of Anjana Hareesh, who was a victim of Biphobia. Anjana had come out as a bisexual to her family, which they had not taken well. They forced her into undergoing “conversion therapy”. In another instance, a lesbian couple in Chennai who decided to get married was opposed by the whole community. The couple was found dead after they were coerced to take conversion therapy. This is not the first evidence of forced conversion therapy. Across the years, many such incidents have come into the limelight.
What is Conversion Therapy?
Conversion therapy, most often referred to as reparative therapy, is a practice aimed at changing individuals’ gender identity or sexual orientation. The conversion therapy is postulated upon the false notion that LGBTQIA per se is a mental illness and it can be cured. Conversion therapy is practiced through various harmful procedures like electroconvulsive shock therapy, castration, institutionalization, corrective rape, behavioral modification, and aversive conditioning. In 1973, the American Psychiatric Association removed homosexuality from the list of mental illnesses.
The risk of conversion therapy are far beyond ineffectiveness and sometimes are extremely dangerous and fatal to the patients. In 2009, the American Psychiatric Association released a report on the risks of such practices. The risks include depression, social withdrawal, decreased self-esteem, sexual dysfunction, self-destructive behavior, and being untrue to self. The risk is even higher in young adults who indulge themselves in illicit drugs and minors who are forced to undergo therapy by their parents.
Violation of International Human Rights Law
The central idea of human rights revolves around the well-established premise that all humans are equal. It follows that “every human has the right to live with dignity” and any violation of human dignity paves a way to discrimination and inequality. Sexual orientation and Gender identity are integral facets of ourselves and this should never be a ground for discrimination. The Universal Declaration of Human Rights, in its opening sentence, says the recognition of all rights of the human family is the foundation of freedom.
Principle 3 of Yogyakarta Principles clearly states that “ Every individual’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity, and freedom.” The queer community in most cases are forced to undergo medical procedures to change their identity whereas it is a violation of principle 18 of Yogyakarta Principles. It is one’s own choice to either reveal their identity or not. The Yogyakarta Principles laid a foundation for the basic human rights tenets for the LGBTIA+ community which also protects an individual from discrimination in one’s own family.
Constitutionality of Conversion Therapy
The transgender community has faced severe prejudice and disadvantage since the early 18th century in India. Despite being granted fundamental rights, they were merely not recognized as part of human society. Recognition and identity are pivotal to one’s being. In the landmark judgment of NALSA v. Union of India, the court held that gender identity is an integral part of the personality and one of the most primary aspects of self-determination and dignity. Justice A K Sikri, in his concurring opinion, laid down that gender identification is an essential component in order to enjoy civil and political rights of an individual. The right to gender identification and self-determination are safeguarded under Article 21 of the Constitution of India. In addition, non-recognition of gender, in the fullest sense, is the denial of self-expression. Expressing one’s gender identity through dressing, words, and behavior is included in the right to freedom of expression under Article 19. The conversion therapy, which tries to alter the sexual orientation of individuals, is a taint to one’s freedom of expression.
Constitutional morality embraces within itself virtues of a wide magnitude such as that of ushering an inclusive society. Our constitution was visualized with the aim of securing to the citizens of our country inalienable rights which were essential for fostering a spirit of growth and development. George Grote, in his famous book ‘A history of Greece’, quoted that “the diffusion of constitutional morality is not merely among the majority of any community but throughout the whole of the country. The preambular goals of equality and liberty can be achieved through the principle of constitutional morality.
Violation of Mental Healthcare Act, 2017
The Supreme Court of India in the famous case of Navtej Johar and Others v. Union of India held that Sec.377 of the Indian Penal Code is unconstitutional. The court in its judgment laid special emphasis on Mental Healthcare Act, 2017. The court observed that homosexuality is not a mental illness or mental disorder. Mental illness is defined as a substantial disorder thinking, mood, perception, orientation, or memory under Sec.2(s). It is outlined that moral, social, cultural, work, or political values or religious beliefs cannot be a ground for determining one’s mental illness. Hence, if homosexuality is not even mental illness, how can it be cured?
While the Indian Judiciary is making quite an effort to recognize the queer community as part of the prejudiced society, the rigid stereotypical community is unable to accept that heterosexuals and homosexuals can co-exist in a social institution. India, a country where every second thing can be easily banned, there are no statutory provisions against the practices which are trying to suppress the sexual minorities. Conversion therapy violates a very basic human right tenet of gender-identity and self-determination. Now, it is high time that we ban conversion therapy and give them the identity and recognition they’ve been fighting for decades.
6. Universal Declaration of Human Rights, 1948.
7. Yogyakarta Principles - Principles on the application of international human rights law in relation to sexual orientation and gender identity, March 2007.
8. The Constitution of India, 1950.
9. National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
10. George Grote, A History of Greece, Routledge, London, 2000, p. 93
11. Mental Healthcare Act, 1970.
Article by Meghana Reddy Kasarla, a first-year undergraduate student at Lloyd Law College.