How Section 377 verdict paves way for those devoid of mental health rights The Mental Healthcare Act, 2017 was quoted by three of the judges in the Section 377 verdict
It is befitting that mental health was a key focus and an essential aspect of the inalienable rights accorded to the LGBTQIA+ community on September 6, 2018. The Mental Healthcare Act, 2017 was quoted by three of the judges in the Section 377 verdict. The colonial-era penal code was questioned against the newer definitions of functioning, illness and finally, rights. The country’s mental health professionals and premier mental health institutes have often obfuscated and erased their own history of deeply problematic practices and thoughts that have left thousands with irreparable damage. In mere hours after the judgment, stories had started pouring in about the unquestioned malpractice the community had often been subjected to. There were transgender individuals who were given electroconvulsive therapy, gay men who were treated for ‘invisible disorders in their brain’ and structured programmes which were created to annihilate and repress any aspect of a person that was non-conforming. The phrase ‘conversion therapy’ doesn’t begin to capture the horror that the marginalised have been subjected to.Most transgender persons are familiar with humiliating psychometric tests used to assess gender dysphoria before they could assert their own right of choice and self-
determination. The assessment would often be reflective of the psychiatrist’s agreement with the choice, rather than an objective report. Psychiatrists and psychologists would attempt to ‘counsel’ them against it, or treat it as a strong case of denial. Even today, there is no model of sensitisation or caution in this assessment process and there is often a reported sense of violation and harassment. In 2018, the World Health Organisation finally questioned the inclusion of gender dysphoria as a mental disorder and shifted it to the sexual health chapter instead, removing the idea of treatment being associated with gender non-conformity. The mental health profession has often been critiqued for its comfort with diagnostic labels and its understanding of non-normative as solely a disorder. These understandings have been more rapidly changing and questioned due to the work of activism as well as more queer therapists coming to the forefront. However, given the silos that therapists often work in, percolation of alternative understandings takes time and is inhibited by the nature of power structures within the medical profession. The external frameworks used by the mental health profession have had the capacity to oppress the marginalised, just as much as they have provided safe spaces. Given this history, it was perhaps essential then that the beginning of revamping the structure of mental health had to begin with creating a rights-based framework for the country. The Mental Healthcare Act articulated the basic rights for any individual seeking mental health services. The September judgment emphasised the need for all laws to be aligned as guarantors of these rights and disavowed any past understandings of homosexuality by citing the Act as well as the international standards for mental illness. This component becomes an essential piece in the judgment to explain the role of the State as well as question any notions of criminality.Chief Justice Dipak Misra cited contemporary research to explain the scientific consensus on same-sex relationships and to prove that it is not a matter of choice.Mental healthcare has often been an oppressor, but it now needs to participate in affirming the population that it has implicitly and explicitly distressed. Those bestowed with the ability to facilitate healing and repair can also cause the deepest ruptures of faith in a system. The profession has to recognise its own misuse of power when it responds to calls in distress. The apex court did not merely recognise the distress caused, but asked mental health professionals for a re-examination of their own views. This reflection can only occur if we acknowledge the wrongs of the past, and treat this as a call to arms for growth.The judgment should be treated as a marker of evolution of mental health rights and understanding within our country. However, the service providers also need to standardise their code of ethics, and be aware of the possible penal consequences of violating the legal rights of any person they may be treating.This requires a greater understanding of practices in therapy rooted in equity and sensitive to the marginalised as well as a mandatory knowledge of the laws they now operate under.Chaitali Sinha works as a psychologist with the Centre for Mental Health Law and Policy right now. She trained in Clinical Psychology at the Tata Institute of Social Sciences, Mumbai.
ARTICLE SOURCE- BS