Image Source: https://rb.gy/je82dc

This article is written by Anusha Misra from NALSAR University of Law. This article evaluates conversion therapy and the need for it to be banned.

Introduction

India has been under fire for the use of conversion therapies to “cure” homosexuality by changing people’s sexual orientation. The LGBTQIA+ community has mobilized to voice their dissent against conversion therapy. In June, the UN Human Rights Council relied on a report authored by Victor Madrigal-Borloz, an expert on gender and sexuality. The report’s findings showed that 98 percent out of 8000 respondents stated that conversion therapy caused them damage, be it physical or mental. The UN Human Rights Council, however, still has not officially supported Victor Madrigal-Borloz’s call for a ban on conversion therapy for minors. 

The law regarding homosexuality was repealed in 2018, after which the Indian Psychiatric Society affirmed firmly that homosexuality is not a mental disease after the prohibition was removed in 2018. However, there remain certain disagreements regarding this within the medical community. 

Aversion therapy

When aversion therapy was first developed in India, it combined electro-convulsive therapy with a behavioural therapy program to eliminate fear or anxiety of the opposite sex. Patients would come to sessions with a selection of erotic or pornographic same-sex photos that they had chosen. While viewing them, they would receive an electric shock, creating a negative association of pain with their feelings of arousal.

The electric shock would then fade as the photographs were replaced with heterosexual images, equating a sense of comfort to opposite-sex attraction. While visual aids were the major stimuli, Indian practitioners often used sensual elements like women’s perfume to generate stronger positive relationships between opposite-sex stimuli. Women’s perfumes are still being used today, according to recent accounts of conversion therapy.

While their western counterparts used a combination of undesired techniques with some behavioural therapy in the 1970s and 1980s, Indian practitioners relied more heavily on a set of “additional behavioural programmes” to develop “social skills” to help patients navigate their newfound heterosexuality. For western practitioners, the main goal was to eliminate same-sex impulses, whereas, in India, the goal was to redirect sexuality and make it heterosexual and reproductive.

The patients who were male were treated for “powerlessness,” while female patients were urged to dress more femininely. This technique reinforced colonial-era binary concepts of sex and gender, while pre-colonial India had long accepted the existence of the hijra, or “third gender.” The law that made homosexuality illegal in India was a colonial enactment. Colonial ideology may also be linked back to homophobic narratives and attempts to medicalize same-sex attraction. Nonetheless, some strong post-colonial organisations and individuals accepted these narratives and merged them into an anti-LGBTQ+ agenda, which some practitioners continue to promote today.

What is conversion therapy

Conversion therapy is also known as reparative therapy is the pseudoscientific practise of trying to change a person’s sexual orientation to heterosexual using psychological, physical, or spiritual interventions. Though this practice is condemned, most countries have not taken any action or any step towards placing a ban on conversion therapy. In these ‘therapies’, same-sex relations be it sexual or emotional are made to be associated with pain and shame. The use of electroconvulsive and other technologies along with hormone treatment is used to associate same-sex arousal with pain, thereby suppressing one’s natural sexual orientation. Conversion therapy has many known side effects such as emotional or psychological trauma leading to panic attacks, lack of confidence and, a sense of shame. 

Even though conversion therapy has been condemned by mainstream medicine, its practice has not died down. Conversion therapy is prevalent in India, particularly in Kerala. This practice has sustained over the years due to a heteronormative cultural outlook, that stems from narrow-minded and uneducated families who give primacy to their status and image in society over their child’s well-being. Most parents upon the coming out of their children, take them to psychiatrists to “fix” them. The majority of such parents are unaware of how their children would be affected by conversion therapy. Conversion therapy can be done one-on-one in an office or groups at retreats or conferences by licensed professionals, unlicensed ministries, or life coaches; it can be done for money or for free.

Conversion therapy – a colonial product

The belief that homosexuality could and should be changed is a popular notion that stems from western psychiatric views on homosexuality. The conviction that homosexuality was a “disorder” and needed to be treated with the advent of colonialism was imported to various colonies. In addition to this, medical, legal and social institutions that encouraged this view were established in the 19th century. 

The conversion therapies that cease to exist today stem from aversion techniques developed by psychiatrists. In such techniques, the subjects were forced to associate a behaviour with discomfort. Such techniques were initially used for alcoholics or those who portrayed any additive or destructive behaviours. Between the 1950s and 1980s, aversion therapy was used as a form of conversion therapy for homosexuals. 

In India, the use of conversion therapy was first promulgated in the1970s as established by the Indian Journal of Psychiatry. It was also found that subjects of conversion therapy were themselves averse towards homosexual behaviour and desired to develop heterosexual behaviour as they were “concerned about their marital life”.

The obsession with the “fad” of traditional marriage can be attributed as one of the reasons why conversion therapy ceases to exist. In modern India, heterosexuality is seen as the only acceptable form of sexual desire. 

Conversion therapy as a form of family rejection

Conversion therapy amplifies the humiliation and stigma that many LGBTQ youths already face. Parents who try to modify their child’s sexual orientation or gender identity instil feelings of rejection and danger in their children, perhaps severing their relationship with them. A 2018 study by The Family Acceptance Project found that:

  • LGBT young persons whose parents sought to change their sexual orientation had a probability of attempted suicide that was more than double (48%) that of LGBT young adults who had no conversion experiences (22 per cent).
  • Suicide attempts significantly increased for LGBT youth who reported both at-home and outside-of-home attempts to modify their sexual orientation (63 per cent).
  • High levels of depression more than doubled (33%) for LGBT young people whose parents tried to change their sexual orientation compared with those who reported no conversion experiences (16%) and more than tripled (52%) for LGBT young people who reported both home-based and out-of-home efforts to change their sexual orientation.
  • Sexual orientation change experiences during adolescence by both parents/caregivers and externally by therapists and religious leaders were associated with lower young adult socioeconomic status, less educational attainment, and lower weekly income.

Where is conversion therapy banned 

Malta, Brazil, Taiwan, Ecuador, and Germany have placed bans on conversion therapy. There have been deliberations on such a ban being imposed in the UK as well. 

On 7th June, Tamil Nadu became the first state in India to place a ban on conversion therapy. The Madras High Court judgement gave primacy to the rights of the LGBTQIA+ community. The case was that of S Sushma v. Commissioner of Police (2019) where a lesbian couple had eloped and were being harassed by their families. Justice Anand Venkatesh went for counselling to understand same-sex relationships before giving the verdict. 

Need for the criminalisation of conversion therapy 

In the case Navtej Singh Johar v. Union Of India (2018), the Supreme Court decriminalised homosexuality and interpreted the meaning of mental illness under Section 2(s) of the Mental Health Act, 2017 liberally. In addition to this, the Supreme Court also relied on accepted medical standards to remove homosexuality from the purview of a mental illness. The Supreme Court directed the government to publicise the judgment widely to overcome the stigma regarding homosexuality. This also brought in much-needed sensitisation to prevent atrocities committed against the members of the LGBTQIA+ community by the police. However, the implementation of the verdict and decriminalisation of homosexuality is a long-drawn process. 

In India, there still is barely any representation from the LGBTQIA+ community in the formal sector thereby depriving the members of the LGBTQIA+ community of a safe working environment. The reactions or behaviour towards the LGBTQIA+ community is not just psychological but also affected by socio-cultural aspects. This leads to the stigmatization that homosexuality needs to be “cured” and is a “mental illness”. This thought also claims “legitimacy” as they are backed by doctors who back conversion therapy. This further defats the purpose of decriminalisation of homosexuality. 

Criminalisation and its impact on society 

The reason for the practice of conversion therapy being prevalent can be linked to the analogy of how the criminalization of female foeticide brought in a change in the sex ratio in favour of women. Thus, along these lines, the criminalization of conversion therapy would bring a change in culture favouring the members of the LGBTQIA+ community. However, gender and sexuality-based education are essential for this to take place. 

The perspectives of critics of criminal law, for example, the feminist legal scholarship, are proponents of the view that criminal law is drafted from the perspective of heterosexual cisgender men and addresses only individual behavioural aspects, thereby not bringing socio-cultural change. This means that the criminalization of conversion therapy may never overcome heteronormative norms and cannot prevent the practice of conversion therapy. To uproot the foundation of heteronormative norms, a socio-cultural change is required. This calls for the application of the reformative theory of criminal law. 

While the retributive legal school of criminal law urges that punishment is in proportion to the harm produced, critics may argue that there is no quantitative measure to scale the mental pain caused by conversion treatment, and hence the proportionality principle can never be fully implemented. However, the criminal justice system can handle this.

The aftermath of criminalisation of conversion therapy 

A foreseen consequence of criminalization is the backlash from religious communities. The main problem however lies in the stigma which can only be overcome by socio-cultural changes. The State can make use of the Supreme Court’s orders of decriminalizing homosexuality and recognizing freedom of sexual orientation as a fundamental right of an individual to defend the action of criminalizing conversion therapy. While criminalization is required, it is equally necessary to take precautions to prevent the misuse of the same. Conversion therapy, for example, can entail a variety of activities such as verbal/emotional abuse, talk therapy, religious counselling, as well as physical and sexual assault. While criminalizing some components of this therapy is vital, one major challenge would be to enshrine it in law. 

Conclusion 

In India, decriminalising homosexuality was only the first step toward LGBT equality and acceptance. When conversion therapy continues to be practised despite being explicitly banned by international groups such as the American Psychological Association and the Indian Psychiatric Society, there is a need for a more stringent legal framework to address the problem. Conversion therapy amplifies the stigma associated with homosexuality and their sense of discrimination. As a result, the coercive use of such therapies goes against the very notion of justice, and it is past time for this practice to be criminalised, along with a strong focus on gender and sexuality-based education to achieve the required socio-cultural change.

So, even in the absence of law, we can expect a pan-India prohibition soon — if the Supreme Court or the respective HCs claim precedent.

It doesn’t hurt that the decision was based on Article 21 of the Indian Constitution, a fundamental right that guarantees us the Right to Life with Dignity and Choice, alongside a bunch of other fundamental rights, including the Right to Privacy.

References 


Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

LEAVE A REPLY

Please enter your comment!
Please enter your name here