Criminalization of Conversion Therapy: Time to fulfil our international commitment towards the LGBTQ+ community

Conversion therapy, also known as ‘reparative therapy’ is aimed at changing the sexual orientation, gender identity or gender expression of an individual. The underlying assumption is that homosexuality is an illness or an abnormality that can be cured by medical and psychological intervention.

On the contrary, such therapies have been found to be unethical, unscientific, ineffective, and potentially harmful by leading healthcare organisations including the World Health Organisation (WHO). This practice is a result of homophobic violence and discrimination, driven by a desire to punish individuals whose appearance or behaviour appears to challenge gender stereotypes.

Additionally, United Nations human rights agencies have increasingly drawn attention to the treatment of LGBTQ persons in medical settings. The failure of States to take effective steps against third parties from carrying out such therapies is an infringement of their commitment to secure human rights.

On May 7, 2020, Germany joined the list of countries to criminalise ‘conversion therapy’ for persons under the age of 18 years. Germany’s ban is in consonance with the European Parliament which has, on a number of occasions, urged the Member States to prohibit gay “cure” therapies. These therapies curb freedom of self-expression, encourage self-denial, and have lifelong negative consequences.

While Germany is being hailed for such a remarkable step, many other signatory States like India have failed to fulfil their international obligations under the Universal Declaration on Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR) and Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

On May 17, 2020, a video of a 21-year-old bisexual woman recounting the horrific treatment she went through shook the internet. She was later found dead in Goa after being forcibly sent to “conversion therapy” by her parents.

We have miserably failed our LGBTQ+ community. To commemorate the recently observed International Day against Homophobia, Transphobia and Biphobia, it is imperative to remind the Indian government of its international commitment towards the LGBTQ community.

Article 5 of UDHR and Article 7 of ICCPR place an obligation on States to protect people from “torture or cruel, inhuman or degrading treatment or punishment.” Furthermore, as noted by the UN Special Rapporteur on Torture, “medical care that causes severe suffering for no justifiable reason can be considered cruel, inhuman or degrading treatment or punishment, and if there is State involvement and specific intent, it is torture.”

There is conclusive evidence that conversion therapy is not only inappropriate and futile, but causes long-term physical and psychological suffering. Despite this, members of sexual minorities are involuntarily confined in medical institutions and subjected to forced treatment including electric shock therapy, ice-pick lobotomies and chemical castration, all paving way to depression, anxiety and self-destructive behaviour.

Thus, such therapy falls within the ambit of cruel, inhuman or degrading treatment. The United Nations High Commissioner for Human Rights has called upon States to protect the LGBTQ+ community from torture and degrading treatment in medical settings. To comply with the above mentioned directions and Article 5 and Article 7, States are required to ban conversion therapy.

In the resolution adopted by the Human Rights Council in June 2016 (32/2) and September 2014 ((27/32), States have been mandated to deplore acts of violence and discrimination committed against individuals because of their sexual orientation or gender identity.

In Ang Ladlad v. Commission on Election, the Chief Justice of the Philippines Supreme Court held that performance of exorcisms, religious practices, forced psychiatric therapy, and counselling to ‘cure’ young gays and lesbians amount to discrimination. These practices are discriminatory on the basis of sexual orientation because a heterosexual person would not be subjected to them.

Moreover, Article 12(1) of ICESCR provides that States recognize the right of everyone to enjoyment of the highest attainable standard of physical and mental health. The LGBTQ community is deprived of this right to health and have been discriminated time and again. The United Nations Development Programme (UNDP) has stated that discriminatory treatment in healthcare includes not only the refusal of needed health services, but also to treatment that can amount to abusive treatment.

The Committee on the Elimination of Discrimination against Women has found that lesbian, bisexual, transgender and intersex women are “victims of abuses and mistreatment by health service providers”. Similarly, the Special Rapporteur on Torture has also stated that lesbians and gays, as marginalised groups, are at particular risk of abuse in healthcare settings.

In NALSA v. Union of India, the Supreme Court of India stated that the United Nation’s ‘Yogyakarta Principles on the Application of International Law in Relation to Issues of Sexual Orientation and Gender Identity’ should be applied as a part of Indian law. Furthermore, in Navtej Singh Johar v. Union of India, the Court observed that although the Yogyakarta Principles are not legally binding, the NALSA judgment nevertheless signified an affirmation to international human rights norms in addressing violations of LGBTQ rights.

Principle 18 of the Yogyakarta Rules puts an obligation on States to protect the LGBTQ community from medical abuse. In doing so, States are required to take all necessary legislative, administrative and other measures to ensure that no child’s body is irreversibly altered by medical procedures in an attempt to impose a gender identity without the full, free and informed consent of the child in accordance with the age and maturity of the child.

While challenging the constitutional validity of the ban on conversion therapy, it has been argued that introduction of a blanket ban would. restrict an adult’s freedom to voluntarily consent for these therapies. While States have enough power to impose a blanket ban for all age groups under the ‘compelling state interest’ doctrine, they have chosen to avoid this legal quandary by banning conversion therapy only for minors, who are more vulnerable to such practices.

However, with the collusion of family members, minor gays and lesbians are forcibly detained in “rehabilitation clinics” and subjected to torture, including sexual abuse. State being the ‘Parens Patriae’, can intervene against such abusive or negligent legal guardians and take decisions based on the ‘best interest of the child’. Besides this, under Article 19 of Convention on Rights of the Child, States have an obligation to protect children from all forms of physical/mental violence, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse.

Decriminalization of homosexuality is not enough. Active steps need to be taken by the government to safeguard the rights of the LGBTQ community. Time and again, lesbian, gay and bisexual people are subjected to degrading medical treatment without their full, free and informed consent. Reports show that healthcare institutions of countries with no specific criminal sanctions are usually the breeding ground of homophobic, sexist and transphobic practices and attitudes. This enhances the likelihood of practicing conversion therapy and discriminatory attitudes towards LGBTQ+.

As long as LGBTQ people are subjected to forced treatment and procedures, their mistrust towards health institutions and personnel will subsist, ultimately affecting their right to appropriate and quality healthcare, amongst various other fundamental rights. States need to ensure that health professionals and public officials receive training in respecting the human rights of LGBTQ persons, so that they can become an inclusive part of our society.

The author is student at National University of Study and Research in Law (NUSRL), Ranchi.