However, such proclamations are not new. A report by the Observer Research Foundation found that such efforts have a long legal history rooted in social movements and public interest litigations. As recently as September 2019, a High-Level Group on the health sector constituted under the 15th Finance Commission not only recommended that the Right to Health be declared a Fundamental Right, but that Health be also shifted from the State List to the Concurrent List. While the latter recommendation may posit its own constitutional and administrative challenges, swift and progressive actions must be taken soon because India’s expenditure on public health is still abysmally low (it was just 1.29% of the GDP in 2019-20) and accessibly remains a dream for many. A study found that while only 3% of all major illnesses in Indian metro areas remain untreated, 12% of the same were untreated in less developed villages. Moreover, one-fifth of all diagnosed major illnesses among the scheduled tribes were also untreated. These data point to unaddressed inequalities along the lines of geography, class, caste, and tribal status.

While much has been written and said about the rural/urban divide, unequal access to hospital spaces for people with disabilities, and caste/class-based exclusions, etc., very rarely are queer people’s exclusions from the healthcare sector discussed or addressed, especially outside of the context of HIV/AIDS. And this problem becomes more complicated when one factors in the many intersections that undergird queer people’s experiences. Thus, one could be queer and disabled, or queer and working class, and thereby face additional forms of marginalisation which are rarely (if ever) acknowledged.

A 2021 article in the Swaddle accurately points out that within the healthcare sector, most HIV/AIDS interventions targeting queer and transgender people viewed their issues as primarily biologically determined. The social and cultural dimensions were rarely factored in. And the NGOization of HIV/AIDS prevention programmes in India has increasingly reduced complex problems like HIV/AIDS infectability and care to a numbers game. The social, cultural, and economic determinants that either deter people from accessing HIV/AIDS care (such as social stigma, a lack of awareness, etc.) or those that make medical spaces structurally inaccessible are rarely addressed in such corporatised interventions. Mental health care for queer communities, while noble in their endeavour, also typically fail to engage with these wider socio-cultural issues. The very epistemology of psychological practice in both India and the West is cis-heteronormative and rooted in queer oppression. As illustrated in a Psychology Today article, the time has come to “queer ”psychology in order to effectively engage with queer populations in more inclusive and affirming ways. While the APA (American Psychology Association) released an important book in 2017 to do exactly this (called “Teaching LGBTQ Psychology: Queering Innovative Pedagogy and Practice) it is unsure whether the Indian counterpart has plans to do anything similar.

As is well known, The World Health Organization (WHO) defines health as “A state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”. Thus, health is to be viewed holistically and must include physical health (such as the issue of HIV/AIDS care addressed above), mental health (such as the issue of ‘queering’ psychology), and social health (the issue of inclusion and equity).

Some ways to achieve greater health equity for the queer community in India are as follows:

• ‘Queering’ Indian Psychology: Following the heels of the APA, the Indian Psychiatric Society (IPS), which is the oldest & largest organization of psychiatrists and allied mental health professionals of India needs to come together to put forth an Indianized version of ‘queer’ psychology that takes into account the unique cultural and political dimensions of the Indian queer identity. Such an initiative needs to ask complex questions like: what are the mental health implications of casteism in India and how does it affect DBA (Dalit Bahujan and Adivasi) queer people? In what ways do police militarization in places like Kashmir and the North East affect the mental health of residents, and what is its impact on queer populations in those regions? To answer these questions, Indian psychologists, sociologists, anthropologists, gender specialists, and social psychologists (to name a few) must come together. Other issues that come to mind are religious persecution, the rise of right-wing nationalism, and the impact of increasing authoritarianism on queer people’s mental health.

• Creating healthcare systems that are welcoming and inclusive: A lot has been said about the unwelcoming nature of hospital settings. People with disabilities, for instance, have routinely called out Indian hospitals, doctors, and insurance providers for their blatant ableism. Gender discrimination in healthcare access for cis women in India has also been well documented. The time has come to reimagine and challenge the way these health systems are conceptualised. And even small changes can make huge differences. For example, having gender-neutral bathrooms, and offering medical insurance policies for same-sex couples are a few ways in which healthcare systems can be more inclusive.

• Training and sensitization programmes: The medical curricula in Indian medical colleges need to be re-engineered to factor in topics around diversity and inclusion. Medical staff also need to be sensitized about the vulnerabilities that marginalized people such as gay, lesbian, transgender, bisexual, and non-binary patients (to name a few) might face while entering hospital settings. For instance, it is a fact that incidents of HIV/AIDS infection are higher among MSM (men who have sex with men) in India, yet these people are afraid of disclosing their sexual history for fear of judgment, ridicule, and shame. Thus, hospital settings need to be very vocal about their non-discrimination policies and communicating this is the hospital’s responsibility.

• The Role of Mass Media: Mass media plays an important role in shaping perception. For far too long, the Indian media has shied away from addressing the complex cultural, social, economic, and emotional deprivations faced by the queer community. Given that queerness was- until recently- perceived as a criminal offense and mental illness, it is important for the media to re-mold people’s perceptions by positively addressing the needs and aspirations of queer people. For instance, one major challenge that queer people face is accepting one’s own identity. And even today, many queer people and their family members seek medical interventions to “cure” what they believe is a pathological illness. Thus, it is incumbent upon the media to debunk these myths for the public once and for all.

Various other interventions also exist. Civil society organizations can be strengthened, collaborative government interventions are possible, and medical oversight bodies can be established across the country that could acts as watchdogs for medical malpractices such as ‘conversion therapy’ and ‘corrective rape’.

Indeed, the challenges are many and the solutions complex, but with collective action and iron-clad willpower, change is possible.

Further reading

C-SHaRP: Readings on stigma and discrimination faced by hijra and kothi persons in HIV/AIDS-related contexts: [link]

Narrain, Arvind and Vinay Chandran (2016). Nothing to Fix: Medicalisation of Sexual Orientation and Gender Identity, Sage Publications [link]

Dutta, Sayantan (2021) Trans and Queer People in India Should Demand Better Health Care.
Scientific American [link]

In 2018, the Supreme Court of India decriminalized consensual and private same-sex relationships in Navtej Singh Johar v. Union of India- – a landmark judgment that overturned the Supreme Court’s own ruling in Suresh Kumar Koushal v. Naz Foundation which upheld the now notorious Section 377 of the Indian Penal Code. Even though the Navtej judgment was momentous, it was merely the first step in the long fight for LGBTQIA+ equality- a step that should never have taken the Indian courts so long in the first place.

But even after Navtej, the journey for LGBTQIA+ acceptance has not been easy in India, especially for those living in small towns and rural areas. A lack of LGBTQIA+ friendly-spaces and radio silence on the issue of sexuality and gender identity has made it difficult for not only society to accept the LGBTQIA+ community, but also for LGBTQIA+ people to come to terms with their own identities. But in spite of these challenges, LGBTQIA+ activists across the country have continued to work tirelessly to change laws and mindsets alike. Back in 2017 (even before Navtej), Opposition party politician Dr. Shashi Tharoor tabled an anti-discrimination and Equality Bill in the Indian Lok Sabha that is comparable to the Biden Administration’s recently introduced Equality Act. However, unlike Biden, Tharoor wasn’t able to pass his Bill, ostensibly because of its radically transformative nature.

More recently, the BJP-led Central Government slammed efforts to legalize same-sex marriage in India by responding rather acerbically to three separate petitions seeking to secure these very same rights. The Government stated same-sex couples in India did not have the fundamental right to marriage because the Navtej judgment merely decriminalized ‘a particular human behavior’. Rather, the Government said, marriage in India should remain restricted to ‘biological men and biological women’.

The Government’s counter-affidavit also claimed that “Western ideas cannot be imported to the Indian context”; yet failed to prove how the idea of same-sex marriage was inherently ‘Western’. In fact, the terminologies of “western”, and “eastern” themselves are contested and require significant academic deconstruction. To merely claim that something is “western” or “eastern” is indeed a sign of intellectual laziness. The Government’s argument falls apart further when one considers the curious cases of two Asian, non-Western countries– Taiwan and Thailand. Taiwan not only legalized same-sex marriage back in 2019 but is now on track to legally recognize international same-sex marriages . Thailand is also considering expanding the scope of marriage to also include same-sex relationships. Moreover, rich historical and sociological evidence of the existence of same-sex marriage in India has been well-documented by scholar Ruth Vanita in her 2005 book Love’s Rite: Same-Sex Marriage in India and the West. This affirms that there is nothing quintessentially ‘western’ about same-sex marriage in India.

Two more of the Central Government’s arguments are grossly egregious. The first has to do with the Government’s labelling of sexual orientation as a “particular human behaviour” and the second is the Government’s idea of marriage as constitutive of a union between only ‘biological’ men and women. If we consider the first argument, we see that the Government’s line of reasoning is false because sexual orientation is not a behaviour, it is an integral aspect of one’s identity. Here is an excerpt from the Navtej judgment that drives this point home: “Sexual orientation is immutable, since it is an innate feature of one’s identity, and cannot be changed at will. The choice of LGBT persons to enter into intimate sexual relations with persons of the same sex is an exercise of their personal choice, and an expression of their autonomy and self-determination.” So, if one’s orientation is indeed intrinsic to one’s being and concomitantly, can’t be changed, then why should homosexuals be denied the same legal rights that their heterosexual counterparts enjoy- which includes the legal recognition of marriage? Ironically, arguments of ‘behaviour and choice’ are never made against heterosexuals because they constitute the majority in society, so much so that their sexual orientation is not only seen as the de facto ‘normal but also codified in multiple personal laws in the country that recognize various forms of opposite-sex unions. Yet, not a single law in India exists that recognizes LGBTQIA+ unions.

I wonder whether it is even morally justified for a country that prides itself (no pun intended) in the diversity and the multiplicity of its people, to deny a large section of these very same people equal rights?

The Government also claims that marriage can only be between a “biological man” and a “biological woman”, yet fails to define what a ‘biological woman’ is. In 2019, the Madras High Court ruled that the meaning of the word ‘bride’ in Section 5 of the Hindu Marriage Act “cannot have a static or immutable meaning”. Rather, it had to be expanded to include not just biological women, but also Transwomen, Transgender people, and intersex people. The Court further opined that the Constitution was a living document that needed to evolve with changing times in order to be relevant; furthermore, in Shafin Jahan v. Asikan K.M., (2018) it was already decided that “the right to marry a person of one’s choice is integral to Article 21 of the Constitution”. Why then, were these progressive arguments not made to grant equal rights to same-sex couples? Expanding the scope of marriage to same-sex couples does not take away anyone else’s rights. Rather, it makes for a more inclusive and diverse family unit. For a community that routinely experiences stigma, discrimination, and ostracization in Indian society, legalizing same-sex marriage would have been one way of rectifying historical wrongs. To argue that same-sex marriages could somehow cause “complete havoc with the delicate balance of personal laws in the country” (as the Government has also stated in its counter-affidavit) is gaslighting, plain and simple.

It isn’t surprising that valiant displays of compassion, courage, and love still threaten the small-minded and cold-hearted.