By: Jayalakshmi Sankar
“Ignorance is no justification for normalising any form of discrimination.”
In response to a writ petition filed by a lesbian couple, the Madras High Court recently called for a blanket ban on the pseudo-scientific practice of conversion therapy in India along with a wide range of measures which, if implemented, would greatly benefit the queer community in India. This ruling has been celebrated by the queer community and calls for a much needed discourse on the practice of conversion therapy and its legal basis or lack of so.
This article aims to critically analyse the practice of conversion therapy and the severely adverse impact it has left on the LGBTQIA+ community. It will also expound upon the grounds on which it could be banned in India as per precedents, laws and conventions, and by taking inspiration from countries which have successfully banned this social evil.
WHAT IS CONVERSION THERAPY?
‘Conversion Therapy’, ‘Aversion Therapy’ or ‘Reparative Therapy’ refers to the pseudo-scientific practice of attempting to change an individual’s sexual orientation or gender identity. The method of doing this can range from mere talking to electro-convulsive shock therapy. All these practices are linked to the widespread belief that anything outside heterosexual and cisgender identities is wrong and unnatural.
Conversion therapy is a practice that began in the West since the widespread belief there was that homosexuality was an illness that could be treated and cured. Much like Section 377, which criminalised homosexuality, conversion therapy also came to India along with the British. The earliest record of conversion therapy in India can be found in the 1970s when the Indian Journal of Psychiatry reported that the world’s focus was on finding a scientific cure for homosexuality. Queer people were subjected to extremely traumatising procedures such as corrective rape and electro-convulsive therapy. This included receiving electric shocks while viewing same-sex pornographic photographs so that the individuals associated their arousal with negative feelings of pain.
It is still in practice despite science and medicine having established its inefficiency. Following the Stonewall Riots of 1969, the American Psychiatric Association in 1973 removed homosexuality from the list of Diagnostics and Statistical Manual of Mental Disorders (DSM). Similarly, in 2018 the Indian Psychiatric Society released a statement to the effect that same-sex attraction was not a mental illness and there is no evidence of an individual’s sexual orientation being cured by treatment. Additionally, a study by an independent expert under the UN Human Rights Council found that 98% of individuals surveyed who underwent conversion therapy experienced lasting damage because of it. This damage included permanent physical harm, suicidal thoughts, depression, self-hatred, loss of faith in oneself, anxiety and shame among others. All this data indicates that one’s sexuality and gender identity isn’t an illness or a conscious choice, but an intrinsic part of an individual that cannot be changed at whim.
AN INTERNATIONAL PERSPECTIVE
The debate on the various components to be included in a legislation banning Conversion Therapy has increased as more countries across the world have enacted bans. The following are some routes through which it may be proved that conversion therapy is unlawful and a violation of a person’s rights.
Many methods of Conversion Therapy such as corrective rape, electro-convulsive shock therapy, chemical aversion etc. amount to torture and directly violate the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of which India is a signatory. Although some forms of Conversion Therapy don’t strictly fall under the legal definition of “torture”, they still subject individuals to extremely painful, degrading and traumatizing treatment.
Conversion Therapy is often administered to individuals at a very young age. Making children undergo Conversion Therapy is in blatant violation of the UN Convention on the Rights of Child which calls for protection of children from all forms of violence. It adversely affects their growth and development.
Parents and family members more than often force children and relatives to undergo Conversion Therapy. There have been arguments in favour claiming it is the right of parents to enrol their children in the treatment they deem fit. But the rights of parents to raise and care for their children aren’t absolute and subject to reasonable restrictions. Some countries have already taken cognizance of this issue. For instance, Germany imposed punishment on parents and guardians for coercing their wards to undergo Conversion Therapy with fine up to €30,000 or 1 year imprisonment.
Lastly, a recurring pattern in the legislations ,that have been enacted against Conversion Therapy, is that they only cover Conversion Therapy provided by medical professionals and not those by religious communities. This leaves the victims of religious Conversion Therapy with no legal recourse. Hence, it is important for countries to enact legislations with blanket bans on Conversion Therapy and not selective, such as the one enacted in Malta. It becomes even more pertinent in religiously diverse countries like India.
LEGAL BASIS OF CONVERSION THERAPY IN INDIA
In Laxman Balkrishna Joshi v Trimbak Bapu Godbole, the Supreme Court held that a doctor who agrees to treat a patient implies that he has the knowledge and skill for the purpose and owes a duty of care as to whether or not to take up the case. A breach of this duty gives rise to medical negligence. Since there is no scientific proof or medical research backing the efficacy of conversion therapy and the medical community of India have denounced the practice of conversion therapy as unethical and wrong, the doctors who take up cases of conversion therapy can attract civil liability under medical negligence as per the aforementioned case.
Importantly, any form of conversion therapy would constitute violation of the fundamental rights of an individual. In Navtej Singh Johar v Union of India, the ruling in the Naz Foundation case was upheld by the Supreme Court. This judgment held that in Article 15 of the constitution- which prohibits discrimination of individuals on certain grounds- the word “sex” isn’t confined to biological attributes but also includes sexual character and orientation. A similar stance was taken by the US Supreme Court in Bostock v Clayton County, where it ruled that it is impossible to discriminate a person on the grounds of gender identity or sexual orientation without simultaneously discriminating them on the grounds of “sex”.
Additionally, in NALSA v The Union of India, the Supreme Court referenced the Yogyakarta Principles of the UN and held that it should be considered as part of Indian law. Conversion therapy would then amount to violation of Principles 17 and 18 of the Yogyakarta Principles which state that, “Everyone has the right to the highest attainable standard of physical and mental health, without discrimination on the basis of sexual orientation or gender identity.” and “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.” respectively. Similarly, in Common Cause v Union of India, the Supreme Court held that every person of sound mental faculty has the right to make their own decisions pertaining to medical treatments and their health. Forced Conversion Therapy would directly contradict this ruling of the apex court. However, even when consenting adults make an informed decision to undergo Conversion Therapy, factors such as societal conditioning and internalised homophobia and transphobia must be kept in mind before deeming it acceptable.
Another course that may be taken against Conversion Therapy is proving that it is consumer fraud. There is conclusive evidence that conversion therapy is ineffective and has been medically disproven. Hence, claiming to provide a service that is impossible would amount to consumer fraud. This was the reasoning used in the Ferguson v JONAH judgment of the New Jersey Superior court and the same can be applied to India as well. Conversion therapy would amount to an offence with imprisonment up to 2 years or fine up to ₹10 lakh as per Section 89 of the Consumer Protection Act, 2019.
Finally, in the aforementioned judgment of S. Sushma v The Commissioner of Police, the Madras High Court- in a laudable ruling- addressed conversion therapy head on and called for a ban on all forms of conversion therapy. Additionally, it also stated that healthcare professionals ought to undergo LGBTQIA+ sensitization training and strict action should to be taken against professionals providing conversion therapy such as revocation of their license to practice.
An analysis of the existing laws, precedents and international conventions provides that the practice of conversion therapy is unlawful on various grounds and needs to be banned at the earliest. Albeit having certain routes to prove that conversion therapy is unconstitutional in courts, there has been little change in the rampant practice. The fact that this practice has been proven as ineffective, is detrimental to queer people and puts India back by several years of social growth suggests that the need of the hour would be to criminalise it through an independent and comprehensive legislation and impose a nationwide ban. This will be an important step in the long and arduous journey of making India an inclusive and safe space for the LGBTQIA+ community.
(Jayalakshmi is a law undergraduate at National Law Institute University, Bhopal. She may be contacted via mail at email@example.com)
Cite as: Jayalakshmi Sankar, ‘Conversion Therapy in India: In Light of Sushma v. Commissioner of Police’ (The RMLNLU Law Review Blog, 12 July 2021) <https://rmlnlulawreview.com/2021/07/12/conversion-therapy-in-india/> date of access