Decoding The Acronym LGBTQ With Mental Health (By- Shivam Verma)

Decoding The Acronym LGBTQ With Mental Health
Authored By- Shivam Verma
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,
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.
“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.
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.
·         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