By Guest Writers Srushti S Kekre* and Udisha Surana**
Of all forms of inequality, ‘injustice in healthcare’ is the most shocking and inhumane.
-Martin Luther King Jr.
Since time immemorial, the LGBTQIA community has been subjected to regressive and dehumanizing practices. Pervasive intolerance and prejudice has forced them to live on the margins of society and fight for something as indispensable as healthcare.
The Indian healthcare system has historically functioned around a heteronormative mindset, actively dismissing the interests of people with gender diverse identities. Yet Article 14 of the Constitution of India guarantees protection against any discrimination on the basis of caste, race, gender and religion. Meanwhile, the Indian Supreme Court, in the landmark case of L.I.C of India v. Consumer Education and Research Centre, expressly applied the principles of equality to eliminate any form of discrimination and protect the right to health and adequate healthcare facilities.
Lamentably, bigotry has progressed to an extent where, throughout the Covid-19 global pandemic, the LGBTQIA community was intentionally denied covid preventive vaccines and medical treatment.
The Universal Declaration of Human Rights has identified the right to health as a fundamental human right, whereby any violation of this right would be a catastrophic attack on humanity. In a similar vein, the right to health is associated with the right to life as a fundamental right under Article 21 of the Constitution of India. In the case of Devika Biswas v. Union of India, it was vehemently held that “the right to life includes the right to lead a dignified and meaningful life coupled with right to health, as an integral facet of this right.”
This incessant persecution of the LGBTQIA community has exposed them to severe physiological and psychological issues such as anxiety, depression and suicidal tendencies. They have been subjected to the horrors of sexual assault, physical abuse and brutal conversion therapy practices by their doctors and healthcare providers.
Moreover, it is observed that MSM (men having sex with men) and transgender individuals are increasingly susceptible to HIV (Human immunodeficiency virus) than the heterosexual population. However, due to a lack of medical awareness and an apparent disregard for the queer community, not only have they been denied HIV treatments or medical tests owing to their sexual orientation, but they have also been shamed and harassed for simply seeking medical care. The right to healthcare is invariable and such homophobic practices constitute a flagrant breach of the fundamental rights guaranteed under Article 14 and 21 of the Indian Constitution.
A ray of hope amidst all the darkness, the case of Navtej Johar v. Union of India was a watershed moment for the LGBTQIA community, as the apex court repealed Section 377 of the Indian Penal Code and therefore decriminalized same-sex relationships. Notably, the landmark judgement stated that the stigma, discrimination, violence, and fear experienced by the queer community has led to a tacit denial of their right to health and sexual autonomy. The judgment further stated that “the constitution must guide the society’s transition from an ancient to a rational society where basic rights are carefully guarded, based on the principles of transformative constitutionalism and progressive realization of rights and that constitutional morality should prevail over social morality to ensure that LGBT people’s human rights are safeguarded”
The right to health is also recognized under multiple international covenants and treaties such as the Sustainable Development Goals and Article 12 of the International Covenant on Economic, Social and Cultural Rights, which states that all individuals have the right to enjoy the highest attainable standard of physical and mental health. Furthermore, in pursuance of the United Nations Economic and Social Council, India is bound to provide accessible, adequate, and good quality medical services and goods to all.
Currently, the Indian healthcare system is in defiance of the socio-economic jurisprudence advocated by constitution and international rules and regulations. The story of a transgender woman who was denied medical care after being raped is a tragic example that reflects the draconian mentality of Indian society and underlines the systematic exclusion of the community from availing healthcare facilities. The minimal efforts of both the judiciary and legislature act as a toothless tiger. It is imperative to recognize that the LGBTQIA community has specialized medical requirements and that there is thus an urgent need to build a comprehensive healthcare system tailored to their needs. Every medical practitioner and caregiver should be sensitized and trained to address medical and social problems in an equitable manner.
In conclusion, as rightly said by Justice Indu Malhotra in the case of Navtej Johar, “history owes an apology to members of the LGBT community and their families for the decades of humiliation and ostracism they have endured.” This discrimination in itself is a disease that needs to be eradicated– together, we must foster an inclusive and empowering environment for the queer community to live a dignified life alongside everyone.
*Srushti S Kekre is a graduate law student from Gujarat National Law University, India. She is interested in human rights law and constitutional law.
**Udisha Surana is a graduate law student from Gujarat National Law University, India. She is interested in the intersection of human rights, environment law, and international law.