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On June 7th, 2021, India’s Madras High Court ruled in S. Sushama v. Commissioner of Police that the use of “conversion therapy” is prohibited by the right to privacy established under Article 21 of the Indian Constitution. Subsequently, Tamil Nadu became the first state in India to achieve outlaw the practice, protecting the privacy and dignity of the queer community. This article will analyze the Court’s rationale for banning conversion therapy and will address the persisting legislative prejudices and limitations concerning constitutional and international obligations regarding queer rights.
Members of the LGBTQIA+ community are often repressed in their societies due to heteropatriarchal social norms and/or “binary” expectations about sex and gender. The practice of conversion therapy intends to change the sexual orientation, gender identity, or gender expression of an individual. Conversion therapy often involves some combination of intervention by religious institutions, hormonal therapies, and/or electroconvulsive shock therapy, with the most severe cases also featuring exorcism, physical assault, corrective rape, and food suppression. For decades now, conversion therapy has been condemned by virtually every major medical and psychological institution for operating under the false notion that gender and sexuality are matters of “choice” subject to change throughout one’s life. This idea underpins much of the discrimination, harassment, and social hostility queer individuals face, leading to an increased risk of self-harm, depression, suicide, and other physical or mental traumas in the community.
The referenced case concerns a lesbian couple whose families oppose their relationship. After fleeing their respective homes, both families filed separate missing persons complaints, prompting authorities to detain and interrogate the couple. Despite the fact that both women were adults who had left their families of their own free will, the police neglected to close their case, which is usual in such situations. Concerned about threats to their safety from both the police and their families who may submit them to conversion therapy, and noting the many incidents in police stations where queer individuals seeking protection were instead met with demeaning dialogues, the couple petitioned for a writ of mandamus before Madras High Court ordering police to close their case and prevent further harassment.
Understanding that there were important issues to the LGBTQIA+ community at stake, the presiding judge took the unusual step of directing the couple, their parents, and even the Court itself to receive counselling on such matters. The Court’s decision is therefore sui generis in nature, as it extensively documents the unique legal issues that the couple faced, encouraging other jurists to overcome their prejudices by gaining a similar understanding of conversion therapy and the other issues facing queer Indians.
In its decision, the Madras High Court referenced Navtej Singh Johar vs Union of India, in which the Supreme Court decriminalized same-sex relationships and held that the constitutional right to life and liberty encompasses the freedom to make important life decisions for oneself, most notably, the right to choose a partner irrespective of sex. In Navtej, the Court identified this right as protected under the dual safeguards of individual autonomy and personal privacy emanating from Article 21. The Madras High Court expanded this interpretation to outlaw conversion therapy when it granted the protections sought by the aforementioned couple. Furthermore, the Court enlisted relevant ministries and institutions as respondents to the suit, issuing recommendations that they strengthen protections for the LGBTQIA+ community, bypassing the need for legislative action. Most notably, the Court issued guidelines to the Ministry of Social Justice and Empowerment which, inter alia, include the prevention of such offences against queer individuals and improving the role of NGOs in protecting their access to shelter spaces and essential medical care.
Currently, the sole legislation addressing protections for queer Indians is the Mental Healthcare Act, 2017 (‘The Act’). The Act states that there shall not be any discrimination against individual patients on the basis of gender and sexual orientation, but the act fails to recognise conversion therapy as a prejudice against queer individuals. Subsequently, the Act also mandates that medical professionals obtain ‘informed consent’ when treating queer patients.
Contrary to the interests it seeks to serve, the Act perpetuates various prejudices against queer individuals. With respect to their sexual orientation, the Act identifies queer individuals as patients suffering from a treatable mental ailment. In actuality, queer individuals suffer no such ailment. Moreover, queer sexualities and gender identities can only be suppressed at great personal cost but never really changed medically or otherwise. Therefore, the Act’s concept of ‘informed consent’ is problematic, as it fails to protect queer individuals who base their consent on the indoctrinated perception that their orientation is a “disease” or “disorder.” The right to the self-determination of one’s identity was upheld by the Supreme Court’s decision in Common Cause as encompassing the willingness of patients to accept medical treatments as well as the freedom to choose between alternative treatments.
Even after the Supreme Court decriminalized queer relationships in 2018, Indian doctors have continued practicing conversion therapy. A major section of Indian society still does not accept non-binary gender identities and queer sexual orientations, viewing these as Western diseases in need of medical correction. The recent death of Anjana Hareesh, a 21-year-old student who committed suicide after her family forced her to undergo months of conversion therapy, illustrates the level of trauma that queer individuals suffer by such “therapies.” Family members often inflict similarly repressive circumstances at home, compelling queer individuals to flee in a manner similar to that of the discussed couple. Likewise, queer people are frequently the targets of physical and psychological assaults in public places, further preventing them from pursuing dignified lives.
Although the Supreme Court’s decriminalization in Navtej represents an important step towards the normalization of queer people in Indian society, homophobic norms entrenched in Indian culture remain far from resolved. The right to live with dignity and to make important life decisions autonomously are essential liberties violated by conversion therapy. In the Samira Kohli and Common Cause cases, the Supreme Court laid the groundwork for banning conversion therapy, and held it contravenes the bodily privacy and integrity of the individual.
The persistence of conversion therapy, even after queer sexuality was decriminalized, indicates that decriminalization alone is inadequate to protect queer Indians and that criminalizing conversion therapy nation-wide is imperative. While criminalizing conversion therapy is a necessary next step, this change alone will not completely dismantle India’s heteropatriarchal framework nor prevent its surreptitious practice. To overcome this dilemma, broad socio-cultural transformations must take place. A transition towards reformative theories of criminal justice, along with scientifically-informed adaptations of the law, are critical to this process, as current legislation meant to address the concerns of queer Indians remain ineffective.
The masking of conversion practices as “treatment” is cruel, inhumane, and contradictory to the provisions of Article 5 and Article 7 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, respectively. Both instruments implore states to ensure protection from torture and/or cruel, inhuman, or degrading treatment or punishment. The UN Human Rights Committee (UNHRC) asserts that state parties should not condone any form of societal stigmatization or discrimination premised on a person’s sexual orientation or gender identity, particularly the legal practice of conversion therapy.
Likewise, the UN Committee on the Rights of Persons with Disabilities provides that coercive medical or hormone-based treatments are inherently discriminatory. Moreover, the treatment of queer people as suffering from ailments that can be “cured” by conversion therapy violates their right to sexual reproductive health under Article 12 of the International Covenant on Economic, Social and Cultural Rights. Victor Madrigal-Borloz, an independent expert on violence and discrimination based on sexual orientation and gender identity, has also advocated for banning conversion therapy in his 2020 report to the UNHRC, stating that conversion therapy meets the internationally established definitions of torture and cruel, inhuman and degrading treatment or punishment.
The psychological trauma induced by conversion therapy is severe, long-lasting, and directly contributes to increased rates of depression, anxiety, hopelessness, and suicidality in its recipients. Therefore, the criminalization of conversion therapy would not only protect the human rights of queer Indians, it will also help to bring India into conformity with its international obligations as a state party to the various international agreements discussed.
The Madras High Court’s rationale for banning conversion therapy in the Sushama decision is, undoubtedly, an inclusive and progressive step towards better protecting the constitutional rights of queer individuals. The extraordinary initiative taken by the presiding judge in personally educating himself on the challenges facing the queer community before reaching his decision cannot be overstated. The Sushama judgement illustrates the transformative role the judiciary must take to dispel preconceived notions about sexual orientation and gender identity in India. However, the need to criminalize conversion therapy remains an unrealized prerequisite for bringing India into conformity with its international obligations concerning the rights of queer Indians.
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