Queerala v. State of Kerala

Last updated
Queerala v. State of Kerala
Emblem of India.svg
Court Kerala High Court
Full case nameQueerala Anr. versus State of Kerala &Ors.
DecidedTBA
Citation(s)WP(C) No. 21202 of 2020
Court membership
Judge(s) sitting P. V. Kunhikrishnan J.
Case opinions
  • The State must undertake rigorous measures against involuntary conversion therapy.
  • The State should develop comprehensive guidelines pertaining to conversion therapy by formulating them through the study of an expert committee that includes insights from queer community-based organizations and other relevant stakeholders.
Decision by P. V. Kunhikrishnan J.
Keywords
Conversion Therapy

Queerala &Anr. versus State of Kerala&Ors. (2020) is an ongoing case of the Kerala High Court, where the Bench has directed the State Government of Kerala to implement stringent measures against involuntary conversion therapy and formulate guidelines pertaining to conversion therapy based on an expert committee's study that incorporates insights from queer community-based organizations and relevant stakeholders. [1] [2] [3] [4]

Contents

The Supreme Court of India acknowledged this case in its publication titled "Sensitisation Module for the Judiciary on LGBTIQA+ Community" as one of the High Court judgments that effectively addressed the difficulties and obstacles experienced by queer individuals within the justice system due to their systemic marginalization. [5]

Background

The petitioners include Queerala, a registered community-based organisation representing the Malayali queer community and Raghav PR, a transgender man who claims to have been subjected to involuntary conversion therapy. The petition was prompted by the rise in reported conversion therapies during the COVID-19 lock down since March, a period that witnessed queer individuals being confined to their homes with unsupportive parents who subsequently took them to health practitioners. [4] [6] [7]

Queerala highlighted that numerous complaints emerged during the COVID-19 lock down. For instance, a young woman's parents compelled her to visit a doctor who suggested hospitalization to examine if her internal organs 'are working' and prescribed medication. Another case involved a bisexual woman who shared her experience of a psychiatrist prescribing schizophrenia medication. When she pointed out that the Indian Psychiatric Society (Kerala) considers conversion therapy unjustifiable and illegal, the psychiatrist criticized her, asserting that his perspective was grounded in 'science' while labeling her viewpoint as an 'opinion.' Another distressing incident involved a woman who experienced a breakdown following 'counselling' by a mental health practitioner. Upon realizing her lesbian identity, she sought assistance from a counsellor who prescribed medication, exacerbating her depression. [6] [7]

Queerala reached out to Indian Psychiatric Society for assistance, but doctors who claim to 'cure' queer individuals deny such practices when confronted. The necessity for legal intervention becomes apparent in order to effectively address these recurring situations. Hence, the petitioners have approached the court seeking a definitive resolution. [6] [7]

Proceedings

The petition presented to the Kerala High Court seeks the following relief concerning conversion therapy, which targets altering the sexual orientation, gender identity, and gender expression of queer individuals.

The counsel for the State Government of Kerala acknowledged the absence of guidelines categorizing conversion therapy as illegal for healthcare institutions and practitioners within the state. However, the counsel emphasized that no complaints had been received concerning the alleged involuntary conversion cited in the writ petition. In the event of such involuntary conversion, the Government's counsel affirmed the Government's view that such actions are unlawful and pledged to take necessary measures. [1] [4]

Opinion of the Court

The Bench relied on the affidavit submitted by the State Government of Kerala, which addressed pertinent sections of the Mental Healthcare Act of 2017. According to the submissions, Section 3 of the Mental Healthcare Act of 2017 dictates that the determination of mental illness relies on globally recognized medical criteria, including the latest edition of the World Health Organization's International Classification of Diseases. Since homosexuality isn't classified as a disorder according to these standards, any effort to treat or cure it is regarded as unlawful. [3] [4]

The submissions also highlighted that Section 89 of the Mental Healthcare Act permits involuntary admission to a mental health facility for individuals with severe mental illness, but only when they display behaviors like self-harm, violence towards others, or an inability to care for themselves. This provision effectively excludes involuntary admission for 'conversion therapy.' [3] [4]

Furthermore, the submissions observed that while Section 95 of the Mental Healthcare Act outlines prohibitions against specific procedures, 'conversion therapy,' despite lacking scientific basis, is not explicitly mentioned among the prohibited practices. Although State Medical Councils have the authority to restrict unscientific treatments, many counselors and psychologists operate without regulation from these bodies. This underscores the necessity for a broader effort to prevent the practice of 'conversion therapy' in the state of Kerala. [3] [4]

Expert Opinion

The Bench also relied on the study report submitted by the Indian Psychiatric Society (Kerala). The submissions noted that the application of conversion therapy, aimed at altering the sexual orientation, gender identity, or gender expression of queer individuals, can only be interpreted as unauthorized and forceful attempts. It emphasized that conversion therapies lack scientific evidence, approved treatment protocols, and often result in significant psychological distress and trauma, reinforcing harmful internalized attitudes irreversibly. [3] [4]

The submissions acknowledged that queer individuals, who already face vulnerabilities due to stigma, bullying, family, and societal pressures, might seek assistance from mental health professionals. These professionals can help address associated problems through pharmacological and non-pharmacological therapies. The submission observed that queer individuals or their families may grapple with questions related to gender identity or sexual orientation, prompting them to approach mental health professionals for guidance on issues like suicidal ideation or relationship conflicts. These issues can be resolved through clinical diagnosis and treatment plans that acknowledge and accept the individual's gender identity or sexual orientation. [3] [4]

Finally, the submission recommended government policies, guidelines, written protocols, and formalized treatment plans to empower qualified professionals to provide clinical intervention while maintaining professional judgment. This approach aims to prevent misuse by those with vested interests attempting to curtail individual rights. [3] [4]

Directives

The Bench concluded that the creation of a guideline concerning conversion therapy is imperative. Accordingly, the Bench issued a directive to the State Government of Kerala to thoroughly investigate this matter. If found necessary, the State Government is mandated to establish an expert committee tasked with examining this issue. Subsequent to the assessment, the State Government should develop a guideline based on the conclusions of the study and present it to the Court within a span of 5 months. The Bench further instructed the State Government to engage with a representative from Queerala and other stakeholders before finalizing the guidelines. [1] [2] [3] [4]

Additionally, the bench noted that if the petitioners' allegations of involuntary conversion therapy hold true, it becomes essential to take stringent actions, and accordingly instructed the State Government of Kerala to conduct a thorough investigation. [1] [2] [3] [4]

Impact

The Supreme Court of India recognized this case in its publication "Sensitisation Module for the Judiciary on LGBTIQA+ Community" as a notable High Court judgment addressing the justice system's challenges faced by marginalized queer individuals, wherein the High Court, upon learning about involuntary conversions therapy by medical practitioners, instructed the State Government to investigate the matter and establish an expert committee for further study if needed, with the committee's findings guiding the State to draft guidelines within five months for submission to the Court. [5]

See also

Related Research Articles

Conversion therapy is the pseudoscientific practice of attempting to change an individual's sexual orientation, gender identity, or gender expression to align with heterosexual and cisgender norms. Methods that have been used to this end include forms of brain surgery, surgical or hormonal castration, aversive treatments such as electric shocks, nausea-inducing drugs, hypnosis, counseling, spiritual interventions, visualization, psychoanalysis, and arousal reconditioning.

Homosexuality in India is legally permitted and tolerated by the most of the traditional native philosophies of the nation, and legal rights continue to be advanced in mainstream politics and regional politics. Homosexual cohabitation is also legally permitted and comes with some legal protections and rights.

<span class="mw-page-title-main">LGBT rights in Canada</span> Rights of LGBT individuals in Canada

Canadian lesbian, gay, bisexual, and transgender (LGBT) rights are some of the most extensive in the world. Same-sex sexual activity, in private between consenting adults, was decriminalized in Canada on June 27, 1969, when the Criminal Law Amendment Act, 1968–69 was brought into force upon royal assent. In a landmark decision in 1995, Egan v Canada, the Supreme Court of Canada held that sexual orientation is constitutionally protected under the equality clause of the Canadian Charter of Rights and Freedoms. In 2005, Canada became the fourth country in the world, and the first in the Americas to legalize same-sex marriage. In 2022, Canada was the third country in the world, and the first in North America, to fully ban conversion therapy nationwide for both minors and adults.

<span class="mw-page-title-main">LGBT rights in Florida</span>

Lesbian, gay, bisexual, and transgender (LGBT) people in the U.S. state of Florida have federal protections, but many face legal difficulties on the state level that are not experienced by non-LGBT residents. Same-sex sexual activity became legal in the state after the U.S. Supreme Court's decision in Lawrence v. Texas on June 26, 2003, although the state legislature has not repealed its sodomy law. Same-sex marriage has been legal in the state since January 6, 2015. Discrimination on account of sexual orientation and gender identity in employment, housing and public accommodations is outlawed following the U.S. Supreme Court's ruling in Bostock v. Clayton County. In addition, several cities and counties, comprising about 55 percent of Florida's population, have enacted anti-discrimination ordinances. These include Jacksonville, Miami, Tampa, Orlando, St. Petersburg, Tallahassee and West Palm Beach, among others. Conversion therapy is also banned in a number of cities in the state, mainly in the Miami metropolitan area, but has been struck down by the 11th Circuit Court of Appeals. In September 2023, Lake Worth Beach, Florida became an official "LGBT sanctuary city" to protect and defend LGBT rights.

Queerala, a registered community-based Organisation (CBO) for Malayali LGBTIQ people, gives adequate support to Malayali persons who belong to the sexual and gender minorities. Queerala originally started in May 2013 as a secret Facebook page where closeted LGBTQAI+ community members met online. Since its start of operations, Queerala has been an active platform for the rights of the LGBTIQ+ community in Kerala and India and focuses on various awareness campaigns on Sexual Orientation, Gender Identity/Expression, and Sex Characteristics (SOGIESC). Queerala's representatives have been marking its presence, in areas of literature, art, cultural spaces, and academic discourses as well as conducting case studies on issues pertaining to sexual orientation and gender identity. They also focus on sensitization on SOGIESC inclusive healthcare services, educational curriculum, workplace policies and local self-governance.

<span class="mw-page-title-main">Chennai Rainbow Pride</span> LGBTIQA+ Pride March

The Chennai Rainbow Pride March has been held by members of Tamil Nadu LGBTIQA+ communities every June since 2009. The pride march is organised under the banner Tamil Nadu Rainbow Coalition, which is a collective of LGBT individuals, supporters, and organizations working on human rights and healthcare for the LGBTQIA community. The Pride March occurs on the final Sunday of June every year. The Pride March is usually preceded by a month-long series of events organized by NGOs and organizations to inculcate awareness and support for the LGBTQ community, such as panel discussions, film screenings, and cultural performances. The Chennai Vaanavil Suyamariyadhai Perani a.k.a. Chennai Rainbow Self-Respect March is known for being inter-sectional in nature as it addresses issues with multiple axes such as caste, class, religion coupled with gender discrimination.

<span class="mw-page-title-main">LGBT rights in Kerala</span>

Lesbian, gay, bisexual and transgender (LGBT) people in Kerala face legal and social difficulties not experienced by non-LGBT persons. However, Kerala has been at the forefront of LGBT issues in India after Tamil Nadu. It became one of the first states in India to establish a welfare policy for the transgender community and in 2016, proposed implementing free gender affirmation surgery through government hospitals. Same-sex sexual activity has been legal since 2018, following the Supreme Court ruling in Navtej Singh Johar v. Union of India. In addition, numerous LGBT-related events have been held across Kerala, including in Kochi and Thiruvananthapuram. However, there is also increasing opposition to LGBT rights recently as evidenced by the anti-LGBT campaigns spearheaded by meninist groups and Muslim organisations like Indian Union Muslim League, Samastha and Jamaat-e-Islami.

<span class="mw-page-title-main">LGBT health in South Korea</span>

The health access and health vulnerabilities experienced by the lesbian, gay, bisexual, transgender, queer or questioning, intersex, asexual (LGBTQIA) community in South Korea are influenced by the state's continuous failure to pass anti-discrimination laws that prohibit discrimination based on sexual orientation and gender identity. The construction and reinforcement of the South Korean national subject, "kungmin," and the basis of Confucianism and Christian churches perpetuates heteronormativity, homophobia, discrimination, and harassment towards the LGBTQI community. The minority stress model can be used to explain the consequences of daily social stressors, like prejudice and discrimination, that sexual minorities face that result in a hostile social environment. Exposure to a hostile environment can lead to health disparities within the LGBTQI community, like higher rates of depression, suicide, suicide ideation, and health risk behavior. Korean public opinion and acceptance of the LGBTQI community have improved over the past two decades, but change has been slow, considering the increased opposition from Christian activist groups. In South Korea, obstacles to LGBTQI healthcare are characterized by discrimination, a lack of medical professionals and medical facilities trained to care for LGBTQI individuals, a lack of legal protection and regulation from governmental entities, and the lack of medical care coverage to provide for the health care needs of LGBTQI individuals. The presence of Korean LGBTQI organizations is a response to the lack of access to healthcare and human rights protection in South Korea. It is also important to note that research that focuses on Korean LGBTQI health access and vulnerabilities is limited in quantity and quality as pushback from the public and government continues.

This is a list of notable events in the history of LGBT rights that took place in the year 2021.

<i>S Sushma v. Commissioner of Police</i> Indian LGBT Rights Case Law

S Sushma &Anr. versus Commissioner of Police&Ors.(2021) is a landmark decision of the Madras High Court that prohibited practice of "conversion therapy" by medical professionals in India. The court directed comprehensive measures to sensitize the society and various branches of the Union and State governments to remove prejudices against the queer community.

<i>Sultana Mirza v. State of Uttar Pradesh</i> Indian LGBT Rights Case Law

Sultana Mirza &Anr. v. State Of Uttar Pradesh &Ors. (2020), a decision of the Allahabad High Court, established that the Constitutional Court bears the responsibility of overseeing and upholding both constitutional morality and the rights of citizens, particularly when these rights are endangered solely due to their sexual orientation.

Many health organizations around the world have denounced and criticized sexual orientation and gender identity change efforts. National health organizations in the United States have announced that there has been no scientific demonstration of conversion therapy's efficacy in the last forty years. They find that conversion therapy is ineffective, risky and can be harmful. Anecdotal claims of cures are counterbalanced by assertions of harm, and the American Psychiatric Association, for example, cautions ethical practitioners under the Hippocratic oath to do no harm and to refrain from attempts at conversion therapy.

<i>Chinmayee Jena v. State of Odisha</i> Indian LGBT Rights Case Law

Chinmayee Jena versus State of Odisha &Ors.(2020) is case where the Orissa High Court upheld the right of self-determination of gender as an integral part of personal autonomy and self-expression. The court recognized the rights of trans persons to cohabit with the partner of their choice, regardless of the “gender” of the partner.

<i>Arun Kumar v. Inspector General of Registration</i> Indian LGBT Rights Case Law

Arun Kumar &Anr. versus Inspector General of Registration&Ors. (2019) is a decision of the Madras High Court which recognised trans woman as a "bride" within the meaning of the Hindu Marriage Act 1955 and prohibited genital-normalizing surgery for intersex infants and children except on life-threatening situations.

<i>Adhila Nasarin v. State Commissioner of Police</i> Indian LGBT Rights Case Law

Adhila Nasarin versus State Commissioner of Police &Ors.(2022) is case where Kerala High Court held that the adults in mutually consenting relationship should be allowed to live their lives according to their informed choice, regardless of gender.

<i>Sreeja S v. Commissioner of Police</i> Indian LGBT Rights Case Law

Sreeja S versus Commissioner of Police &Ors.(2018) is case where Kerala High Court held that separating the adults in a consensual relationship is a violation of the Constitutional right, regardless of their sexual orientation.

<i>Ujjawal v. State of Haryana</i> Indian LGBT Rights Case

Ujjawal &Anr. versus State of Haryana&Ors.(2021), a case where Punjab and Haryana High Court, refused to provide police protection to a couple facing threat to their lives and personal liberty, citing potential disruption to "social fabric of the society."

<i>Devu G. Nair v. State of Kerala</i> Indian LGBT Rights Case Law

Devu G. Nair versus State Of Kerala &Ors. (2023) is an ongoing Supreme Court case, poised to examine the legality of Conversion Therapy and addressing whether the High Court should have facilitated the alleged detainee's opportunity to provide their statement in person within the secure confines of the High Court building.

<i>XYZ v. State of Maharashtra</i> Indian LGBT Rights Case Law

XYZ &Anr. versus State of Maharashtra&Ors.(2023) is an ongoing case of Bombay High Court, which is considering comprehensive measures to sensitize the society and various branches of the State Government of Maharashtra to remove prejudices against the queer community.

<i>Chanchal Bhattacharya v. State of West Bengal</i>

Chanchal Bhattacharya versus State of West Bengal &Ors. (2015), a decision of the Calcutta High Court, asserts that individuals who have undergone gender-affirming surgery have a constitutional right to the recognition of their affirmed gender. The verdict emphasized the importance for educational and administrative institutions to adjust their records to reflect such changes, aiming to prevent inconvenience or discrimination.

References

  1. 1 2 3 4 "Take stringent action against any forced conversion of LGBTIQ community members: HC to Kerala govt". The Indian Express. 2021-12-14. Retrieved 2023-08-21.
  2. 1 2 3 "HC: frame guidelines for conversion therapy". The Hindu. 2021-12-14. ISSN   0971-751X . Retrieved 2023-08-21.
  3. 1 2 3 4 5 6 7 8 9 Pratap, Giti (2021-12-14). "[LGBTQIA+] Frame guidelines to outlaw conversion therapy: Kerala High Court". Bar and Bench - Indian Legal news. Retrieved 2023-08-21.
  4. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Queerala v. State of Kerala, Writ Petition (Civil) No. 21202 of 2020 ( Kerala High Court 10 December 2021).
  5. 1 2 Supreme Court of India (26 November 2022), Sensitisation Module for the Judiciary on LGBTIQA+ Community (PDF), Supreme Court of India, p. 67, archived from the original (PDF) on 2 June 2023
  6. 1 2 3 "Queer group approaches Kerala High Court for ban on 'conversion therapy'". The News Minute. 2020-10-12. Retrieved 2023-08-21.
  7. 1 2 3 Singh, Rajdeep (2020-10-12). "Indian LGBT+ rights group launches landmark bid to ban conversion therapy after tragic death of bisexual woman". PinkNews . Retrieved 2023-08-20.