About the Author:
Seond-year student, Vivekananda Institute of Professional Studies, Delhi
Although the responses are new, the concept of conversion therapy dates to 1920s when homosexuality was considered pathological and attempts to cure gender identity using physical punishment, surgical intervention and counselling were ceaseless. The World Health Organization has not only declassified ‘homosexuality’ and ‘gender identity disorders’ as being mental health disorders but has also endeavoured to disregard conversion therapy as ineffective and detrimental. Since then, a wave of change has emerged for the LGBT+ community, in recognition of their gender identities as regular human developments, globally. Lawmakers have also identified conversion therapy as inclusive of verbal and emotional abuse, sexual and physical assault and coercive talk therapy equating to torture to the physical and mental well being of the people subjected to it. Supporting the move, various countries across the globe like Brazil, China, Ecuador, Australia, and the United States have banned or adopted local laws prohibiting the practice of conversion therapy. However, even after The Supreme Court, struck down Section 377 decriminalizing homosexuality, India is yet to take a legal stand on the cruel practice of conversion therapy.
Conversion therapy or reparative therapy is a pseudoscientific practice aimed at changing an individual’s sexual orientation or gender identity. Techniques used in conversion therapy range from chemical castration, ice-pick lobotomies, hormonal treatment, electric shocks to genitals, surgery, spiritual and peer intervention to psychological shaming. The idea behind these dehumanizing practices is to generate physically painful and emotionally damaging stimuli and associating it with the victim’s gender identity, thus creating aversions, fear, and shame in their minds.
In a report by the American Psychological Association, dated 2007 it was stated that “results of scientifically valid research indicate that it is unlikely that individuals will be able to reduce same-sex attractions or increase other-sex sexual attractions through [sexual orientation change efforts].” But the risks attached to conversion therapy go beyond its ineffectiveness. Lacking medical justification, it poses potential risks like depression, self- destructive behaviour, anxiety, damage to bodily functions and fracturing relationships of the victim.
REJECTION OF CONVERSION THERAPY: INTERNATIONAL VIEW
The narrative of gender identities and sexual orientations of individuals has changed drastically over the past years. Laws and policies in different parts of the world recognize the need to regulate and prohibit harmful and coercive gay cures. The Office of the High Commissioner, United Nations in 2012 reinforced universally applicable rights against discrimination in their report titled Born Free and Equal. They set out five core obligations that the States have towards LGBT persons, including:
Protection of individuals from homophobic and transphobic violence
Prevention of torture and cruel, inhuman, and degrading treatment of LGBT persons
Decriminalization of homosexuality
Prohibition of discrimination based on sexual orientation and gender identity
Right to freedom of expression, association, and peaceful assembly
Countries like Brazil, Ecuador, Fiji, Germany, Malta, Samoa, Taiwan, and Uruguay have banned practices of conversion therapy and collaborative treatments of homosexuality.
Others, such as the United States have mustered the support of the local population passing successful laws in banning the practice of conversion therapy in twenty states. The Church of England, also recently opined methods like conversion therapy to be fundamentally wrong and put forth their demand to ban it. Switzerland put a de facto ban making it unlawful for medical practitioners to perform conversion therapies.
In 2014, The Indian Psychiatric Society (IPS) announced its stance on homosexuality and issued a statement claiming that there is no evidence to prove that homosexuality is unnatural. They also urged to stop considering homosexuality as an illness. Medical practitioners, lawmakers and those who identified themselves in the umbrella of LGBT+ community gathered in support of the statement. The legal battle, which changed the course of homosexuality in India, has now turned almost two years old. Still, it has not pronounced decrease in homophobia and maniacal practices surrounding the issue.
The Indian Association of Clinical Psychologists (IACP), recently issued a statement calling conversion therapy to be a dangerously harmful, discredited, painful and traumatizing unprofessional practice. They added, “Mental Health Care Act, 2017, chapter 5 and clause 18 (2) refrains from discrimination based on gender and sexual orientation. Mental Health Practitioners must resist all forms of conversion practices and must use queer affirmative language.” The Kerala Branch of Indian Psychiatric Association also wrote, “we have to remember that it is unethical and illegal to do treatments which do not have any scientific evidence. There is no justification for offering conversion therapy in this context.”
BAN ON CONVERSION THERAPY, A NECESSARY LAW?
The Indian Legal System grants provisions to prevent practices like conversion therapy from instances like the Mental Health Care Act, 2017 as well as Article 19(1) (a) Freedom to Expression and Article 14 Right to Equality, amongst other laws.
The Mental Health Care Act, 2017 prevents discrimination of the patients based on their sexual orientation and gender, but nowhere outlaws the practice of conversion therapy, exclusively.
The Supreme Court recorded in its 2014 NALSA judgement, that, “No person may be forced to undergo any form of medical or psychological treatment, procedure, testing, or be confined to a medical facility, based on sexual orientation or gender identity. Notwithstanding any classifications to the contrary, a person’s sexual orientation and gender identity are not, in and of themselves, medical conditions and are not to be treated, cured or suppressed.”
Despite these changes in the legal and medical arena, homophobia, and the attempts to cure LGBT people runs deep in the country. Lawmakers can and should ban practices like these targeting vulnerable individuals, destroying not only their mental and physical well being but also snatching their identities. Activities that are unethical and fraudulent should be prohibited within therapeutic and commercial realms, being precise about what bans prohibit so that private opinions about same-sex activities do not get criminalized.
A humanitarian approach would view conversion therapy as cruel and dehumanizing. Law on delegitimizing conversion therapy exclusively and holding practitioners accountable for damage can be a solution. Another aspect is to criminalize or expand civil liability for the mental and physical damage that conversion therapy inflicts on the practitioners. Fines, suspending licenses of medical practitioners and other similar punishments can be imposed.
Also, now that it has become crystal clear that homosexuality is not a mental disorder, to use terms like therapy for harmful methods to abuse people with not normative gender identities, does not seem fair. Supporting survivors, creating systems for individuals to report such abuse and training mental health professionals can help bring a positive change. Thus, the overall makeup of laws and policies regarding conversion therapy needs to be vocal and precise about the issue exclusively.
Disclaimer: Kindly note that the views and opinions expressed are of the author, and not Law Colloquy.