Right to health at stake in struggle for equality amongst gender and sexual minorities: SC

The members of the LGBT community cannot be said to be suffering from any "mental disorder" as the right to health was one of the key rights at stake in the "struggle" for equality amongst gender and sexual minorities, the Supreme Court said Thursday.

While striking down part of section 377 of the IPC that criminalises consensual gay sex, a constitution bench headed by Chief Justice Dipak Misra said that sexual orientation was one of the many biological phenomena which was natural and inherent in an individual.

Justices R F Nariman, D Y Chandrachud and Indu Malhotra, in their separate concurring verdicts, discussed extensively about the right to health of the community.

Justice Chandrachud said that "exclusion, discrimination and marginalization" of the LGBT community was rooted in "societal heteronormativity and society's pervasive bias towards gender binary and opposite-gender relationships".

This, he said, has important implications for an individual's health-seeking behaviour, how health services are provided, and the extent to which sexual health can be achieved.

"Criminalising certain sexual acts, thereby shunning them from the mainstream discourse, would invariably lead to situations of unsafe sex, coercion, and a lack of sound medical advice and sexual education, if any at all," he said.

Justice Nariman said the present definition of mental illness in parliamentary statute makes it clear that homosexuality is not considered a mental illness.

"Given modern psychiatric studies and legislation which recognise that gay persons and transgenders are not persons suffering from mental disorder and cannot therefore be penalised, the section must be held to be a provision which is capricious and irrational," Justice Nariman said.

"This definition throws to the winds all earlier misconceptions of mental illness including the fact that same sex couples who indulge in anal sex are persons with mental illness," he said.

He said that mental illness should not be determined on the basis of social status or membership of a cultural group or for any other reason not directly relevant to the mental health of the person.

"More importantly, mental illness shall not be determined on the basis of non-conformity with moral, social, cultural, work or political values or religious beliefs prevailing in a person's community," he said.

He said that instead of trying to "cure something that isn't even a disease or illness", the counsellors have to adopt a more progressive view that reflects the changed medical position and changing social values.

The three judges -- Justices Nariman, Chandrachud and Malhotra -- stressed on the fact that the sexual orientation of the community has led to denial of health care services to them.

Justice Malhotra said that since section 377 of IPC criminalises "carnal intercourse against the order of nature", it compelled LGBT persons to lead closeted lives which leads to prejudices when it comes to access to health-care facilities.

"This results in serious health issues, including depression and suicidal tendencies amongst members of this community," she said.

The court said that even today, for a significant number of Indian citizens the standard of health remains an "elusive aspiration".

Section 377 of IPC denies consenting adults the full realization of their right to health, as well as their sexual rights, said Justice Chandrachud.

"It forces consensual sex between adults into a realm of fear and shame, as persons who engage in anal and oral intercourse risk criminal sanctions if they seek health advice. This lowers the standard of health enjoyed by them and particularly by members of sexual and gender minorities, in relation to the rest of society," he said.

The court said that men who have sex with men (MSM) and transgenders may not approach the state healthcare providers for fear of being prosecuted for engaging in criminalised intercourse.

"Studies show that it is the stigma attached to these individuals that contributes to increased sexual risk behaviour and/or decreased use of HIV prevention services," Justice Chandrachud said.

He further said the silence and secrecy that accompanies institutional discrimination may foster conditions which encourage escalation of the incidence of HIV/AIDS and hinders access to HIV and sexual health services and prevention programmes.

He also noted that the country required to provide marginalised sections, including members of the LGBTQ community, the goods and services that are "available (in sufficient quantity), accessible (physically, geographically, economically and in a non-discriminatory manner), acceptable (respectful of culture and medical ethics) and of quality (scientifically and medically appropriate and of good quality).