Decoding The Acronym LGBTQ With Mental Health (By- Shivam Verma)
Decoding The Acronym LGBTQ With
Mental Health
Authored By- Shivam Verma
Abstract
The rights of Lesbians, Gay,
Bisexual, Transgender, and Queer (LGBTQ) have evolved in recent years from the
Naz judgment to Navtej Singh Johar Judgment. In these paths of legal
development, the scope regarding the mental well-being of the community is
limited and does not cover healthcare, social protection, and access to good
services leaving the community vulnerable and prone to many mental health
issues. Sexual minorities are facing everyday challenges such as stigma,
prejudice, and discrimination that create a stressful environment for them.
Concealing one's sexual identity does seem to lead to fewer opportunities for
victimization and discrimination, but it is also associated with low
self-esteem and quality of life. On the
other hand, being open about one's sexual orientation is associated with
greater well-being but the stigma and stereotypical approach towards the
community makes them vulnerable to various health issues such as anxiety,
depression, suicidal thoughts, alcohol or drug abuse, shame, low esteem, and
mental disorders. Mental health is a very intrinsic part of a person’s health,
the central and the state governments have been incapable of providing one that
violates the right guaranteed under article 21 of the Constitution of India.
The same-sex couples who desire to have a family, the couples are not allowed
to legally adopt a child which seems a missing dialogue around the rights of
LGBTQ people who desire single parenthood or as a couple. There is a need to
enhance the mental health workforce in LGBTQ awareness, and the study
illuminates the necessary changes required to better the current situation,
which includes addressing the social attitudes and beliefs that underpin
societal aggression, as well as renegotiating the meaning of sexuality, as well
as the changes needed to uplift the mental and social closure of the community.
Keywords-LGBTQ, Adoption, rights, Discrimination, Mental health,
Rights,
Introduction
In a democracy, the test of courage comes when
the citizens are capable of exercising the cruelest oppression on the minorities.
History in itself is evidence that minority group members have always faced
unique challenges in adapting to the society where they have faced
discrimination and various prejudices that create a stressful environment.
India and its judiciary have always been very vocal when it comes to imparting
justice and taking cognizance of the issues that need an urgent hearing. In the
past legal development of matters related to the rights of LGBTQ, the Apex and
High Courts by their judgment have paved the way for LGBT rights in India. From
the Naz judgment to Navtej Singh Johar Judgment the judiciary has stood up for
the LGBTQ community. In the case of Navtej
Singh Johar v. Union of India[1],
the Apex Court struck down the draconian section 377[2] to
the extent that it criminalizes sex between two consenting adults, the judgment
created euphoria in the community, though India as a developing country still
needs to legalize the same-sex marriage that is the next step to recognize
their rights. In this process the society, state, and justice mechanism as a
whole need to address the mental health and the social isolation the community
goes through. The topic of same-sex couples in society remains a highly visible
and at the same time a contentious issue where the drastic emergence of public
and scientific awareness has created now a solid foundation of knowledge
regarding mental health in the LGBTQ community.
According to the World Health Organization, “Health is a state of complete physical,
mental and social well-being not merely the absence of disease or infirmity.”
This implies that mental health is more than just the absence of any
disabilities or disorders. Mental health is very critical at every stage of
life from childhood to adulthood i.e. the transition period where young LGBTQ
people face various life experiences such as trauma, history of abuse, and
non-acceptance by society make them go through homelessness; homophobic
bullying at school disrupting education; family rejection; and difficulties
finding safe spaces to form supportive relationships. One study even found that
LGBTQ people used mental health services at 2.5 times higher rates than their
“straight” counterparts[3]. Still,
there is no public data on the exact number of sexual and gender minorities in
India, though in 2018 it was estimated that about
8% of total population belongs to the LGBTQ community[4].
Despite these sizeable numbers, India’s health systems exclude the LGTBQ
community where their cases and concerns related to mental health are
increasing at an alarming rate. Shame arising from the transgression of social
and cultural norms has also been found to be significant in the literature on
health and illness, for example, suicide work on youth demonstrates the
centrality of shame in young people's accounts of suicidal experiences and
argues that the social dynamics of shame are important to understanding young
people's subjectivities. In Hatzenbuehler's research review homosexual and
bisexual persons have a greater prevalence of internalized disorders, such as
depression and anxiety, as well as externalized disorders, such as psychoactive
substance abuse (tobacco, marijuana, cocaine, heroin, and alcohol), when
compared to heterosexuals.
This paper will analyze the LGBTQ community and how the state should
address their mental and psychological issues by taking appropriate steps.
Further, this paper will review the present scenario in regards to the reasons
that the community faces such trauma and mental health issues. The fundamental
rights that are the guardian against the arbitrary function of the state and
protector of the rights of the people are violated that need a review.
Article 21 And The Mental Integrity
Of LBTQ
“When the man is denied the right to live the life he believes in, he has
no choice but to become an outlaw.” – Nelson Mandela
Article 21 of the Indian constitution
guarantees the right to life and personal liberty except according to
procedures established by the law. Over the years, the apex court has given
various other dimensions and interpretations of article 21 that also include
"facilities for reading, writing and expressing oneself in diverse forms[5]”
hence, expanding the scope of article 21[6].
The question is whether article 21 includes the right to a healthy life and if
it does then it violates article 21 of the people belonging to the LGBT
community. The Supreme Court through various judgments has stressed the need to
mandate the right to health as in the case of Bandhua Mukti Morcha v. Union of India & ors[7]
it was held that the “right to life also
includes the right to health i.e. to live a healthy life”. In 2017, the Mental Health Care Act[8]
was passed which aims to provide mental health care services and to take care
of the well-being of an individual that every person suffering from mental
illness has the right to mental healthcare services. The legislature by passing
such a law accepted that Mental Health is an integral part of a healthy life
still the state neglected to insert any provisions in the act for the LGBTQ
community when the community goes through more trauma, depression, and social
isolation than heterosexual peers.
In State
of Punjab & Ors v. Mohinder Singh Chawla[9],
the honorable apex court of the country reaffirmed that – the ‘Right to health is fundamental to the right
to life and must be legally put on record that the government has a
constitutional obligation of aiding and providing proper healthcare services to
the citizens of the country.’ In the definition of the World Health
Organisation, the word “health” is inclusive of both physical and mental
integrity therefore it can be interpreted that the right to mental health is an
integral part of article 21. The state not providing any protection to the
community is in direct violation of article 21, the heart and soul of the
constitution. The country does not accept the same-sex-marriage and does not
provide the adoption and visitation rights to the community thereby they go
through various mental health issues like depression, anxiety, panic attacks,
bipolar disorders, and various other issues that hurt the mental peace they are
denied to even get married to their loved ones where marriage is considered as
one the most sacred institution. This in turn is against the fundamental right
of Articles 14(right to equality), 19(right to freedom), and 21(right to life
and personal liberty), called the golden triangle of the constitution[10].
Recently a class tenth student committed
suicide by jumping off the top floor of his apartment ending his life at such
an age where they thrive to aspire, dream and make or build the foundation of
life[11].
In his suicide letter, he has accused his headmistress of harassing him and
other fellow students of bullying him. The boy was facing depression for about
a year where such a fragile mind couldn’t bear the kind of mental violence he
was going through. Such incident is just a number but these cases are rapidly
increasing questioning the society and the justice mechanism. What possibly be
could the reason for these suicidal thoughts? It all starts with looking at the
community as a shame and different i.e. not fitting into the stereotypical
norms set up by the society. This type of hatred against the community for
being just authentic to themselves is a testimony to the fast-eroding idea of
humanity. The stereotypical approach towards the LGBTQ community will change
but a very steady level and this will take many coming years what can be done
is that the state should take the cognizance and build societal resilience and evaluate
the present situation and take adequate steps to handle mental health
efficiently and constructively by forming a framework to break the stigma and
stereotypical taboo formed this community.
Adoption And Visitation Rights
“Every child deserves a home and love. Period”- Dave Thomas
Same-sex couple wishing to adopt
faces a plethora of legal and societal challenges. Discrimination and
prejudice, two faces of injustice are deeply rooted against the LGBTQ community
hence, putting the community in isolation and that is exactly how same-sex
couples go through when it comes to the adoption and visitation rights. A
petition was filed in the Delhi High Court in 2020 to declare same-sex marriage
legal; the petition was rebutted by the reply of the Centre by stating that the
Indian Society recognizes the concept of "family" as consisting of
one male and one female and the child/children born out of the union of the two
sexes[12].
Though in the case of Shafin Jahan v.
Ashok K.M. & Ors[13].
(2018) the apex court held that marriage is part of fundamental right, the
argument put forward by the central government stating the norm for a family
though a family is the outcome of a marriagethat is held to be a part of
fundamental right and in the case of Navtej Singh Johar the court said that
human has intrinsic right to choose partner of his/her choice, still the
government puts out such discriminatory and stereotypical statements. The court
will come with its decision, aiming to legalize the marriage but the question
arises that whether the couple will be allowed to adopt the child after
legalizing marriage. Having a child is a
life-changing experience; it’s a new life in heaven that becomes intrinsic part
of one’s life. It is noted that when it comes to adoption and visitation rights
of the LGBTQ community, the couple is not allowed to legally adopt a child
which seems a missing dialogue around the rights of LGBTQ people who desire
single parenthood or as a couple. This creates a situation where it is
suffocating by being surrounded by happiness and not being able to feel it for
yourself. Generally, it is seen that when heterosexuals become parents, they
tend to get much support from their friends and family. Everyone is very
excited around them and is given emotional and practical support thereby
helping them in parenting. The same may not happen in the case of the LGBTQ
community which impacts the mental health by feeling disconnected/ lonely,
increased risk of anxiety and depression, and other mental health issues.
Recently, the Indian Supreme Court in
the case of Mrs. Ritika Sharan v. Mr.
Sujoy Ghosh[14] has
held that the “primary consideration in
the custody and visitation rights is the welfare of the child and the best
interests of the child that are best served when the child is given for
upbringing by both his parents”. Still, it is seen in many cases where the
community is subjected to harassment by prejudiced notions about the community.
One seen in the case of Chavda Twinkle[15],
which was decided by Gujarat HC in 2020, the issue was the custody of children
with the mother. The respondents alleged against her that she is living with
her girlfriend and had intimacy with a girl in 8th standard and therefore
custody should not be given to her. However, the court only dealt with the
aspect that such arguments are nothing but baseless ones just to downgrade her
self-esteem. The court did not deal much with whether the sexuality of a parent
has anything to do with the custody of children.
The Central Adoption Resource Authority (CARA) is a statutory body of
the Ministry of Women & Child Development, Government of India. It
functions as the nodal body for the adoption of Indian children and is mandated
to monitor and regulate in-country and inter-country adoptions. India is home
to 20 million orphans, a figure projected to increase by 2021 disturbingly, the
law puts the children at parole of being alone and to be raised without a
family rather than being brought by homosexual, bisexual and transsexual
couples[16].As
per the rules provided by Central Adoption Resource Authority (CARA), a single
female and male are eligible to adopt a child (a male cannot adopt a girl)[17].
On the plain reading, there is no ruling per se that a homosexual person can
adopt a child. The CARA law is silent on the aspect that whether homosexuals
can adopt a child. When something is silent it neither approves nor disapproves
then why the conclusion is made to restrict them from adopting the child. It’s
not a question to make pre notions about their right but rather to act upon and
review the present situation affecting the mental well-being of LGBTQ.
The Indian society and the
legislature in today's scenario is not ready to accept the rights of LGBTQ.
This is also a fact that today the traditional setup of Indian society is not
matured enough to accept same-sex couples leave alone same-sex family and this,
in turn, leads to violence on the couple and this is evident by the High Court
judgments. The only way society can become truly inclusive is to accept each
other's view and to accept the fact that "love is love".
Homosexual And Bisexual Men And
Women
“We have to visible. We are not ashamed of who are.”- Sylvia Rivera
The word “stress” is defined as a
physical or emotional tension caused to themselves or their loved ones that
appears when a person perceives that the demand of environment is excessive and
finds that the person is unable to successfully meet them. The Homo-sexual and
bi-sexual people faces psychological disorder twice than the heterosexual
persons. They are under greater risk of committing suicide than heterosexual
peers thus having a lower sense of efficacy and of mastering their life aims.[18]
The LGB community juggles with accepting themselves and adapting to the
stereotypical norms that makes them vulnerable and create a sense of fear to
the heterosexual peers.A study found out that lesbian and bisexual women who
were out experienced more emotional stress as teenagers and were 2 to 2.5 times
more than more likely to experience suicidal ideation than heterosexual women[19].
The framers of the constitution were very clear with incorporating the
fundamental rights to neutralize the sum of economic, social, educational and
political disadvantages. To break the disparity and discrimination article 14
(regarded as the magnificent corner stones of Indian democracy),15 and 16 were
inserted with objective to uplift the social closures of the marginalized
population. The objective was very clear then how can a law or a provision made
be unfair with one community that in the course of their daily lives, LGB
encounter legal barriers and obstacles with respect to relationship formation,
parenting issues, healthcare, housing, safety and many more. They start facing
these issues at a very tender age of their life hence affecting their mental
and social wellbeing yet they have to deal with all of the pain by themselves
as the society don’t accept them, making it difficult for them to come out and
express the grief and torture the go through.The stress the LGB peers go
through is vivid but how do the state or society as whole should do to the ease
their stress? The answer is to provide the social support and social identity
that will help the community in building a strong personality for them.Lesbian
and bisexual women were less likely than heterosexual women to have health
insurance, more likely to have been uninsured during the previous year, and
more likely to have difficulty obtaining needed medical care[20].
The state should accept them by providing their rights and providing a place
where they are surrounded by people of LGB community that may be as source of
instrumental roof and emotional support, and can be also used to share their
own experiences which works as a perfect therapy to reduce the stress.
The findings of relevant research
shows that LGB individuals report more number of physical and psychological
violence committed by their parents or guardians in their childhood , more
childhood sexual abuse, more psychological and physical violence committed by
partners during adulthood, and more experiences of sexual abuse in adulthood.
Transgender
“First they ignore you. Then they laugh at you. Then they fight you and
then you win.”- Mahatma Gandhi
Gender is fundamental to many
decisions in health care systems around the world – and this puts transgender
people in a vulnerable position. Transgender people have existed in every
society, culture, nation, and class since ancient times and since then they
have been subjected to verbal abuse and physical violence. For example, a
qualitative study with queer women found that anxiety, high substance
use and suicidal thoughts were a common part of their experiences and 91% of
transgender persons faced depression, frequent alcohol use and victimisation
due to violence[21].
Transgender individuals are those whose gender identity is incongruent with
that of their assigned at birth. Individuals who are transsexuals are those who
desire medical treatment to align their physiology with gender identities.
However, Gender Dysphoria refers to psychological distress with one’s gender.
It is pertinent to note that some individuals who experience gender
incongruence do not have gender dysphoria and gender dysphoria relates to
people who feel distressed from their non-alignment.
The people identifying as transgender
goes through various kinds of microaggressions. Microaggressions are the subtle
forms of discrimination that can occur daily. These shape daily experiences,
essential to the way navigate personal and social relationships. There are
various sorts of microaggressions mainly- use of transphobic and/or incorrectly
gendered terminology, assumption of universal transgender experience,
endorsement of gender normative/binary, denial of personal body privacy, and
questioning legitimacy of gender. The microaggressions in the trans community
were mainly to do with informing the individuals to behave appropriately and
how to identify.
Various researches suggest that
within the transgender population discrimination has a direct risk factor to
increase mental health care services increased mental illness diagnosis suicide
and self- harm. The higher levels of discrimination cause an increased
likelihood specifically anxiety and depression symptoms. An important step in
their recognition was taken by the Supreme Court in the landmark case of National Legal Services Authority v. Union
of India[22]
judgment where the apex court recognized the “constitutional and legal rights of transgender persons, as a ‘third gender’
and laid down several measures for the prohibition of discrimination against
transgender persons and protection of their rights.” The judgment suggested
reservations for transgender persons in jobs and educational institutions. In
the same year, a private members bill was introduced in the Rajya Sabha in five
years the bill was enacted into law. Enacting the persons The Transgender Persons (Protection of Rights) Act[23],
India has taken a step forward in granting and protecting much-deserved
identity and rights to transgender persons though the government still needs to
address the mental and other psychological issues associated with the trans
community. The brain-derived neurotrophic factor is a protein in the brain that
is involved in synaptic plasticity which is the ability of the synapses to
strengthen or weaken over time in the brain. Individuals who are exposed to
more and more stressful life events have a reduction in their spdf in their
brains which means they’re likely to form new neurons and connections and less
likely for their brain to mature and develop appropriately. The census data of
2011 reports that over 66% of the population identified as the third gender
lived in rural areas out which it was noted that they had lower rates of successful
employment and the majority of them were unable to sustain the work beyond 6
months[24].
The reasons for such rates were the discrimination by society, in the
workplace. A Monograph published by Public Union Civil liberties shows light on
the disturbing stories of sexual, emotional, mental, and physical abuse in the
society that directly affects their right to work in a healthy environment.
Under the Indian constitution, article 41 talks about the right to work. The
inter alia of the article says that “the State shall within the limits of its
economic capacity and development, make effective provision for securing the
right to work, to education and public assistance in cases of unemployment, old
age, sickness and disablement, and in other cases of undeserved want.” Here
undeserved want means when a person is treated unfairly due to his credentials.
To tackle this situation reservation is a vital tool to eradicate such
discrimination and uplift the social and mental closures of the trans
community. The Transgender Persons (Protection of Rights) Act, 2019 lacks
provide reservations in educational institutions and employment when the
community has been historically ignored, humiliated, and abused just to
identify themselves as a “gender” then how will the employment and education
sector will be thoughtful enough to provide them with opportunities of
employment, healthcare facilities, and education. The purpose of reservations
is to empower the historically disadvantaged groups by providing them
representation in education, employment, and politics by reservations. Not
providing the reservation to the community defeats the sole purpose of the
reservations. This was an attempt to undo the historical wrongs done to the
depressed classes and continue today. So why there is this animosity against
the community when it comes to providing the reservation.
The punishment for offenses under the
act is up to two years of imprisonment and a fine even for heinous crimes like
assault and rape. Punishment for Rape committed against women under section 377[25]
provides imprisonment of either description for a term which shall not be less
than seven years but which may be for life or for a term which may extend to
ten years and shall also be liable to fine. A Rape in a criminal sense is a
rape irrespective of committed against any gender, the act in itself
discriminates against the community.
The law explicitly
mandates the need to ‘facilitate access to transgender persons in hospitals and
other health care institutions and centres’. Despite this, not much action has
been taken for the last two years hence, forming of laws isn’t sufficient its
implementation by the respected authorities is the need of the hour, without
the implementation, the act will be in a moribund form. A multi-prolonged
approach with a focus on public awareness campaigns is needed to eliminate the
social stigma associated with the transgender community.
The establishment of the National Council for
Transgender Persons is a welcoming step by the government however, only with
the effective functioning of the council whether it will be able to identify
the issues faced by the transgender community and accordingly advice the
government and sensitize legal and law enforcement systems in particular
towards the issues of the transgender community.
The relevant health care issues that
are related to transgender individuals, part of this is a focus on
gender-related surgery rather than identification. Due to the binary reference
that clinics identify gender “the uphill struggles to access gender-affirming
medical care is further exacerbated among those transgender patients whose
treatment needs may be incompatible with the binarist model of gender in
society” therefore all the data lacking on the topic clinicians and community
member’s
recognizing that some individual is
pressurized by clinicians to undergo treatment that neither needed nor wanted
to satisfy clinicians desires that their body fulfills social expectations
about gender embodiment. The limitation in treatment options and the focus on
gender reassignment rather than gender identification increases the amount of
gender dysphoria that occurs.In the ongoing COVID-19 vaccination drive,
transgender people are facing additional barriers to access, as many of them
do not have an acceptable photo ID[26].
The transgender persons whose documentation takes into account the sex assigned
to them at birth, instead of their gender. The government and healthcare
providers need to make sure that any choice that is made by the individual is
based on the individual’s perception of themselves rather than how others
perceive the community. Mentalization-based interventions can be used to reduce
stress by encouraging emotional literacy, working on emotion regulation and
attachment, and showing clients how various dimensions affect the behaviors and
mental health of the community.
Conclusion
The study and research on LGBT
illuminates a lot about the present condition of the community and with getting
deeper into the issue, there has to be immediate effects that has to be taken
to uplift the social and physiological closure of the community. National
commissions like one for women were formed to fulfill the surveillance
functions to facilitate redressal of griveances and to accelerate the
socio-economic development of women. The lack of data on sexual minorities
offers a substantial barrier to the development of both theoretical and
empirical models that can better assess how LGBTQ related policies affect the
health of LGBTQ individuals. A commission established in coming years for LGBTQ
community to keep the tally of the data regarding the harassment, mental issues
like suicide rate, consumption of alcohol, drugs and sexual and physical abuse
will be mirror to the government and the society to work to provide safe and
healthy environment for the community. Opening a help line number for the community
and providing emotional support through health clinicsespecially for the peeps
the closet. The mental healthcare act should be revised to incorporate
provisions for the LGBTQ community. In the case of S. Sushama & another v Commissioner of Police and others, the
court came up with a distinct approach while dealing with the matters of the
emotional concern of LGBTQ community. Justice Anand Venkatesh understood the
social closures that’s restricts in comprehending the LGBTQ community. The
court provided the guidelines to protect the LGBTQ community that directs the
state to provide to take necessary steps to provide the protection and
sensitize the various state machinery. Creating awareness programmes and
educating the young minds and state that includes judiciary, police, Ministry of Social Justice and Empowerment, educational
institutions, health workers, etc. as whole is the only solution to tackle the
issues with LGBTQ community like advertising girl’s education through the use
of telecommunications.Education and familiarization of the experts and students
in the ancillary professions with the risks and challenges that the LGBTQ
persons are forced to deal with on a daily basis would help them achieve an
emphatic understanding and would assist them in acting towards a reduction of
the minority stress among LGBTQ community.
Bibliography
Judgments
·
Navtej Singh Johar v Union of India., 10
SCC 1.
·
Bandhua Mukti Morcha v.
Union Of India & ors., (1997) 10 SCC 549.
·
Punjab & Ors. v. Mohinder Singh Chawla.,
(1997) 2 SCC 83.
·
Shafin
Jahan v. Ashok K.M. & Ors., (2018) 16 SCC 368.
·
Mrs.
Ritika Sharan v. Mr. Sujoy Ghosh., (2020) SCC 878.
·
National Legal Services Authority v. Union of India., (2014) 5 SCC 438
·
S.
Sushama & another v Commissioner of Police and others., (2021)W. P. No. 7284 of 2021