VEXATIOUS CALIBRATION OF SEXUAL ORIENTATION

This blog is authored by Sasmitha Kumaravadivel a final year law student at Law Centre, University of Delhi.

Introduction

Today, people live in a world filled with conservative attitudes and consequential moral panics. Continuous efforts to overturn sexual orientation by religious as well as political institutions have been ruthless. Conversion therapy, also known as Gender Critical Therapy, Reparative Therapy, Ex-Gay Therapy, Sexual Orientation and Gender Identity Change Efforts (SOGIE), refers to the pseudo-scientific dangerous and frequently discredited practice intended to change an individual’s sexual orientation from being a transgender or nonbinary who is attracted to the same gender, to becoming a straight person who is attracted to the opposite sex alone. This is a very harmful practice since it often leads to inflicting injury to the physical and mental health of the participants. It is legal in many countries around the world despite being discredited by the World Health Organization (WHO), the World Medical Association and the World Psychiatric Association. The International Lesbian, Gay, Bisexual, Trans and Intersex Association published a report titled ‘Curbing deception- A world survey of legal restrictions of so called ‘conversion therapies’ in the year 2020. The report observed that only four countries i.e., Brazil, Ecuador, Germany and Malta have banned this callous practice directly and five countries i.e., Argentina, Fiji, Nauru, Uruguay, and Samoa have placed indirect bans through mental health laws. It is ironical to see the world countries giving recognition to these genders and simultaneously allowing such practices as a cure for deviating from the heteronormative standards. Countries have to take cues from the increasing suicide among the participants and outlaw such practices before it is too late.

Desecration of Natural Rights

Homosexuality is neither a sin nor a crime. But it is considered to be both, a sin and a crime in a huge number of countries. Therapists take extreme measures such as hypnosis, aversion, forced nudity, castration and electroconvulsive shock therapy in order to ‘cure the abnormal sexuality.’ There is an absolute lack of medical justification for any of these practices. Parents have developed the propensity to believe that sexual orientation is rather a fashion statement. Families are the primary offenders in encouraging these unethical therapies which result in social isolation, and forced institutionalization or incarceration of the youth who reveal their sexual identity by taking recourse to psychiatric or religious methods of conversion.

Governments have persevered this dreadful act by failing to regulate such practices. The government of Malaysia encourages conversion therapy through its Islamic Development Department’s (JAKIM) “Mukhayyam” program which claimed to cure more than 1,400 people deviating from the so-called ‘right path.’ Ministers of the UK government have voiced out their opinions in different instances against the legalized conversion therapies ranging from pseudo-psychological treatment to spiritual counselling, including surgical and hormonal interventions or ‘corrective rape.’

It was observed by the American Psychiatric Association that these practices are aimed at creating a tendency of self-hatred which leads to low self-esteem, depression, anxiety, substance abuse and eventually self-destruction or suicide by the people undergoing reparative therapies. In the year 2018, Ozanne Foundation conducted a survey and recorded that 68% of the LGBT+ respondents in UK, have had suicidal thoughts and a majority of them have actually committed the same.

The right to associate oneself with a gender or not to associate is one of the fundamental rights of every person. Right to privacy, right to health, right against inequality and discrimination, right to live a dignified life, right to freedom of expression, and the right to have a family are a few of the most valued rights as identified by different countries from time to time. The UN Special Rapporteur on Torture, 2013 has stated that conversion therapy tantamount to “torture” and “ill-treatment” which is also a violation of Principle 17 and 18 (f) of the Yogyakarta Principles on the Application of International Human Rights Law on the Sexual Orientation and Gender Identity. The Human Rights Council declared that the right to mental health is a vital human right through its Resolution 36/13. Article 12 of the International Covenant on Economic, Social and Cultural Rights observes that it is the duty of the State parties to ensure that everyone has the right to enjoy the highest standards of physical and mental health.

A vast majority of the State parties do not have a regulation prohibiting conversion therapy. These therapies are aimed at desecrating the sanctity of a human’s life by mortifying the individuals belonging to LGBT+, for exercising the aforementioned rights within the ambit of their own lives. Gender stereotyping around the world has ensued the LGBT+ community to live a miserable life through various measures of torture which has to come to a conclusion through joint efforts.

Attempts to Outlaw Conversion

Countries have been facing difficulties in defining conversion therapy and other related terms which is a hindrance for enacting a viable legislation to ban the practices. Some countries such as Switzerland have been dealing with the providers of conversion therapy through incumbent criminal laws only after the victims have proved the resultant mental and/or physical harm. The laborious task of preparing facts, building legal arguments, and facing humiliation on losing the case, further aggravates the trauma of the individuals. In using the existing law in prosecuting secular, religious, as well as medical practitioners of conversion therapy, Taiwan stands as a good example. According to the Protection of Children and Youth Welfare and Rights Act or Article 304 of the Criminal Code of Taiwan, anyone facing abuse on their person for belonging to the LGBT+ community shall approach the court of law under these particular provisions to seek appropriate legal relief.

Despite the prevailing befuddlements, certain counties and countries have taken positive legislative (civil and criminal), regulatory (mental health policies), and judicial actions to ban conversion therapy for all ages. The Federal Council of Psychology of Brazil banned the offering of “ex-gay conversion treatments” in 1999 but overturned in 2017 and reinstated again in the year 2018. This predicament was uncalled-for yet, the guidelines survived the test of the time and have prevented the harassment of many LGBT+ people in Brazil. The most comprehensive law in the world in dealing with this issue is Malta’s Affirmation of Sexual Orientation, Gender Identity and Gender Expression Act, 2015. The Act concedes that sexual orientation or gender identity is not a disease or illness and any practice trying to rectify the same is unlawful.

Queensland, the Australian Capital Territory and Victoria in Australia have enacted legislations to criminalize conversion therapy and called for a federal law to protect the interests of the LGBT+ community. Almost 20 states in the United States have legislations that bans the practice of medical conversion therapies on minors which, however, does not restrict religious efforts. Canada has observed through the proposed Bill C-6, An Act to Amend Criminal Code (Conversion Therapy), 2020, that forcing conversion of a person/child from their preferred gender is an offence that impacts the life, liberty and security of the person. Furthermore, the Bill seeks to ban any form of advertisement (oral or otherwise), practice by health professionals (with or without consent), and every other action that results in harming the dignity of a person of the LGBT+ community. Year after year, more and more countries are exhibiting their intolerance towards such uncanny practices that are aimed at destroying the lives of millions across the world. On the contrary, these efforts are minuscule compared to the agonies underwent by the people.

Conclusion

There is a general lack of respect towards the LGBT+ community and these people are widely ridiculed for expressing their carnal preferences. Imposing a downright ban on such practices could be possible only if all the States decriminalize homosexuality and equally recognize this community. Administrative regulations and criminal laws should go hand-in-hand while discrediting these practices in their entirety.

In a study conducted by OutRight Action International, it was found that nearly all the interviewees underwent SOGIE change because of religious condemnation which often resulted in using violence especially against lesbians and transgender women. Numerous organizations representing licensed medical and health care professionals have time and again reported that conversion therapy and other similar interventions are unscientific and dangerous. Practitioners of conversion therapy are psychologists accredited by the respective governments who perform abusive methods on people for material gain by classifying homosexuality as a disease. Even if these clinics are cracked down, various religious and traditional practices of conversion take place in secrecy. Without ironclad legislations in place, it is extremely arduous to discredit these practices on a large scale. The diverse nature of human desires cannot be articulated exhaustively by science or religion. Every individual is different and the world would truly be a better place if people are respected for whoever they are rather than setting unqualified standards for everyone in general.