Madras HC bans ‘cure’ against Conversion Therapy
"The first organized gay rights movement arose in the late nineteenth century in Germany."
"Cities such as Berlin had LGBT communities throughout the 1920s and early 1930s. When the Nazis took power in 1933, one of their first acts was to torch Hirschfeld's Institut für Sexualwissenschaft, where many important Nazis had sought treatment for gender issues. Initially supportive of Ernst Röhm's homosexuality, many gay men were expelled from the Nazi Party after the Night of the Long Knives, and the Section 175 Laws were re-enforced, with gay individuals incarcerated in concentration camps by 1938."
In 2020, cases of suicide and death related to parents forcing conversion therapy and individuals facing harassment for who they are, took India by storm. After coming out to her parents as bisexual, a 21-year-old student, Anjana Hareesh, was discovered dead in Goa after allegedly being put into conversion therapy for months. Despite the Supreme Court's decriminalisation of consensual homosexual intercourse under Section 377 in 2018 and the Indian Psychiatric Society's declaration that homosexuality is not a mental disease, these sentiments have not pervaded most Indian households.
In Tamil Nadu, a lesbian pair committed themselves when one of the woman's family members learned of their connection and attempted to force her into an arranged marriage.
Just 12 days after the Union Cabinet enacted the Transgender Bill in 2019, a transgender woman was beaten up by a crowd in West Bengal, resulting in her death. Every day's dismal news serves as a reminder that this was not an unusual occurrence. It persists, despite the fact that India's cities are slowly coming to terms with a variety of sexualities.
The Madras High Court has made important efforts to reduce the sharp edge of prejudice against the LGBTQIA+ community, three years after the Supreme Court knocked down a harsh rule that criminalised gay encounters as unconstitutional. Justice N Anand Venkatesh barred the disputable profession of "conversion therapy" that claims to change the sexual orientation of queer people or the "gender identity of transgender people to cis-gender" in an outsized set of guidelines that builds on the spirit of the 2018 Navtej Johar v Union of India and the 2014 Nalsa v Union of India judgments.
The Madras High Court, acknowledging that sexual autonomy is an important aspect of the right to privacy, issued guidelines on June 7, 2021 aimed at mainstreaming LGBTIQA+ people, ranging from prohibiting attempts to “medically cure” LGBTIQA+ people to changes in school and university curricula, recommending awareness programs for judicial officers, police, and prison officials.
What's notable about this case is that it was filed by a same-sex couple seeking protection from harassment. Fought by advocate Manuraj S. on behalf of the couple, is the decision taken by Justice N. Anand Venkatesh to educate himself about the lives of LGBTQIA+ people before coming to a conclusion on the case. Hearing the petition filed by a lesbian couple seeking protection from police harassment on their parents’ instance, Justice Venkatesh said, “Ignorance is no justification for normalising any form of discrimination. The actual problem is not the fact that the law does not recognise a relationship but that the sanction that is accorded by the society is not available.” Dictating his order, Justice Venkatesh suggested interim guidelines till the legislature comes up with a law, he said, “The LGBTQIA+ community cannot be left in a vulnerable atmosphere where there is no guarantee for their protection and safety.”
The below mentioned guidelines were issued by the court while the judgement becomes a Legislation:
A. The police should close any complaint if it is regarding missing cases found to be consenting adults belonging to the LGBTQIA+ community.
B. The Ministry of Social Justice & Empowerment (MSJE) should enlist NGOs which have sufficient expertise in handling issues faced by the LGBTQIA+ community.
C. Any person who faces an issue, belonging to the LGBTQIA+ community may approach any of the enlisted NGOs for safeguarding and protecting their rights.
D. Such problems should be addressed with the best-suited method depending on the facts and circumstances of each case be it counselling, monetary support, legal assistance with the support of District Legal Services Authority.
E. Other required measures for eliminating prejudices against the LGBTQIA+ community and channelizing them as mainstream should also be taken up by the Union and State Governments respectively, in consultation with such other Ministries.
Apart from this, the Madras HC has directed educational institutions:
To include gender-neutral restrooms
Change of name and gender on academic records for transgender persons
Inclusion of 'transgender' in addition to M and F gender columns in application forms
Appointment of counsellors who are LGBTQ inclusive
The court stated that LGBTQIA+ people have the right to privacy and that they "have a right to a dignified existence, which includes their choice of sexual orientation, gender identity, gender presentation, gender expression, and choice of partner thereof," adding that "this right and the manner in which it is exercised are constitutionally protected under Article 21 of the Constitution." Tamil Nadu is set to become the first state to outlaw "any attempts to medically cure or change the sexual orientation of LGBTIQA+ people to heterosexual.” The court stated in its order that practitioners who engage in any form of conversion therapy should face disciplinary action, including the loss of their license to practice.
The decision is noteworthy because it centres a discourse about “unlearning” prejudice and opens up space for acceptance of different identities and methods of dwelling.
During the case's multiple hearings, Justice Venkatesh acknowledged his lack of awareness regarding the LGBTQIA+ community and sought out psychologists and transgender people to educate himself.
In another case, the Delhi High Court earlier this month adjourned on pleas pertaining to same-sex marriages till July 6 after the Centre sought an adjournment stating that the government was focusing on COVID issues now. The plea seeks recognition for same-sex marriages under the Hindu Marriage Act, Special Marriage Act and Foreign Marriage Act.
"This is the first major order that addresses most challenges concerning the whole LGBTQIA+ community and issues specific directions... I am hopeful of change given the judge has indicated he would follow up on the directions on a regular basis, " said L Ramakrishnan, vice-president at SAATHII, a Chennai-based public health advocacy group as per Reuters report.
Societal attitudes towards homosexuality vary in different cultures and historical periods, as do attitudes toward sexual desire, activity and relationships in general. All cultures have their own norms regarding what’s appropriate and inappropriate. Some sanction same-sex love and sexuality, while others disapprove of such activities. However, a 2012 CNN poll showed that majority of Americans favor gay rights. In late 2015, a poll in Japan also found that majority supported same-sex marriage.
The LGBTQIA+ movement is more than just increased visibility in public; it's also about a notion that should have been realised long back i.e., societies becoming more open and less violent by acknowledging sexuality and orientation flexibility as genuine expressions of human variation. Outreach programs should be conducted by the NGOs with community support to put forth first-hand problems faced in the hands of law enforcement agencies and to train them in providing effective assistance. Ensure that transgender and gender-nonconforming prisoners are housed separately from cis-men prisoners to eliminate chances of sexual assault by the latter on the former.
Mental health camps and awareness programs should be conducted to understand gender, sexuality, sexual orientation and promote acceptance of diversity, the court added.
(Written by Siddhipriya Chatterjee)