This pride month India took its first step towards accepting and safeguarding the rights of LGBTQIA+ community. The historic judgment in “S.Sushma and another vs. Commissioner of police and others, pronounced by the Madras High Court has made Tamil Nadu the first state in India to ban “Conversion Therapy”.
What is “Conversion Therapy” or “Cure”
Conversion therapy refers to any kind of treatment that aims to change a persons sexual orientation or to suppress a persons identity. It is based on the idea that being gay, transgender or bisexual is a mental illness that can be cured. The roots of conversion Therapy lie in the societies attitude towards the LGBTQIA+ community.
Laws Governing “Conversion therapy” in India
No Indian Law expressly prohibits “Conversion Therapy”. However, the Mental Health Care Act prohibits treatment for mental health without informed consent. The act states that “the consent for specific intervention must be given without any force while also disclosing adequate information including risks, benefits and alternatives prior to giving such consent.”
Therefore, ‘Conversion Therapy’ and its procedures are a direct contradiction to the Act as conversion therapy often obtains consent through force. The Act further stipulates that no patients can be discriminated against, on the basis of gender and sexual orientation by mental health professionals.
Judgement and its implications
The Madras High Court after hearing a petition filed by a same sex couple in the case of case of “S.Sushma and another vs. Commissioner of police and others”, issued certain guidelines to protect and safeguard the rights of the LGBTQIA+ community. It opined that “Till the legislature comes up with an enactment, the LGBTQIA+ community could not be left vulnerable” and issued the following interim orders
Interim orders for police officials.
The court has directed police officials to close missing complaint reports if they receive such missing complaint and go on to find that the case involves two consenting adults of the LGBTQIA+ Community.
It has further directed the police and prison authorities to conduct seminars and programmes at regular intervals on steps to be taken for protection from and prevention of offences against the LGBTQIA+ community. Not limited to the above programs, it directed the authorities to conduct sensitization programs for police personnel, creating awareness about the Offences and Penalties as stipulated under Chapter VIII of The Transgender Persons (Protection of Rights) Act, 2019 and compliance of Rule 11 of the Transgender Persons (Protection of Rights) Rules, 2020.
The court also put forward some suggestions and measures for schools and colleges to adopt, to sensitize the LGBTQIA Rights. It suggested gender neutral restrooms for gender non-comforting students and the appointment of Counsellor who are LGBTQIA+ inclusive, for staff and students, to address any grievances. It also asked educational institutions to provide the option for the change in name on academic records of transgender persons. It further suggested the inclusion of ‘Transgender’ along with Male and Female on different application forms such as admission forms, entrance exam forms etc.
Physical and Mental health professionals
The judgement bans ‘Conversion therapy’ or ‘Cure therapy’. The court in its judgment has stated that actions including the withdrawal of license shall be initiated against health professional who indulge in any sort of cure therapy. It suggested the setting up of Mental Health Camps for people to educate and understand sexual orientation and sexual diversity.
Conclusion
This development might seem to be just a dip in the ocean as there is far more to be achieved. However, this judgement might serve more than just an addendum to the landmark 2018 judgment which decriminalised homosexuality. The LGBTQIA+ friendly guidelines issued in this judgement seems to be a positive step toward the acceptance of LGBTQIA+ rights.
About the Author – Aditya Pratap
Aditya Pratap is a lawyer practising in Mumbai. He argues cases in the Bombay High Court, Sessions and Magistrate Courts, along with appearances before RERA, NCLT and the Family Court. For further information one may visit his website adityapratap.in or view his YouTube Channel to see his interviews. Questions can be emailed to him at aditya@adityapratap.com.
This Article is made by Aditya Pratap in assistance with Karthyayani Amblimath.
Cases argued by Aditya Pratap can be viewed here.
Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws and how they may affect a case.
