The body and its desires dictate who we are but are also intimately connected to the physical, social and cultural environments we live in. Try as we may, our health and well-being cannot escape the social and structural challenges, attitudes, or the legal systems we live under. As the Victorian law Section 377 was read down, celebrations erupted across India’s LGBT community. Many of us, who work in public health, were a tad happier, recognising the long-term public health benefits of this significant change in law.

The existence of Section 377 had for very long time a direct and significant bearing on the health of the LGBT community. It is well-known that the lack of rights, acceptance and protections in any society have a direct relationship with individual and population health. In the case of the LGBT community, this lack of rights feeds homophobic cultures that over-emphasise and empower patriarchy and masculinity and because of this widespread homophobia within society, health concerns of the LGBT community are marginalised. It also results in gay men and women creating and inhabiting sub-cultures of self-hate, internalised homophobia, and oppression.

Public health evidence shows that irrespective of social class, there exists a clear relationship between a lack of social acceptance and legal rights with higher rates of HIV and sexually transmitted diseases, mental stress, substance abuse, violence and mental illness. Suicide rates are much higher among sexual minorities in societies where they remain criminalised.

At a systemic level, criminalisation and a lack of rights act as fundamental barriers to LGBT people prioritising their health concerns or accessing healthcare. Criminalisation leads to fear of discrimination, and often results in LGBT people getting poor or inadequate services within the health system. In the case of HIV, stigma, discrimination and violence based on sexual orientation and gender identity coupled with criminalisation creates barriers to both the availability of and the ability to access HIV prevention, testing and treatment services.

Decades of global experiences have shown that the criminalisation of homosexuality impedes efforts to control HIV and other sexually transmitted diseases. Further, criminalisation leads to increased suffering and the risk of death for those infected with HIV because it creates systemic and social barriers to accessing treatment.

Self-stigma and social stigma

Criminalisation, stigma and a lack of social acceptance also leads to considerable mental stress, long-term depression and can lead to substance abuse and self-harm. This discrimination creates, stigma at two levels- self-stigma and social stigma. A fundamental lack of rights feeds both these forms of stigma which work to mutually reinforce each other. As a result, LGBT individuals continue to face isolation, discrimination and rejection within families and communities but also within the health system. All this impacts mental health and well-being and feeds self-hate and self-harm. Stigma also strongly acerbates other structural drivers of exclusion, such as gender inequality, poverty, and violence.

Even in well-functioning health programs such as HIV, oppressive laws and social attitudes regarding homosexuality encourage denial and covering up of same-sex attraction, which suppresses the opportunities for diagnoses. One the one hand, these laws and attitudes restrict possibilities of sexual contact while on the other they restrict as access to prevention services. These are then social and political drivers of the HIV epidemic, as well as mental illness, and in some cases suicide.

In the past, the police often misused and booked HIV peer outreach workers under Section 377. They have used Section 377 to try to stop HIV prevention activities on the grounds that they aid criminal activities, harass HIV outreach workers, and confiscate condoms as proof of sex work.

What we talk little about is the impact such social attitudes have on lesbian and bisexual women. In such social environments, they are particularly vulnerable to sexual violence, forced marriages and mental health problems. There have been instances of abuse and rape which is perpetuated to ‘correct’ their sexual preferences through continued abuse and violence.

Erasing systemic discrimination

We have enough evidence. Now, in the interest of meeting our public health goals, India must work to erase systemic discrimination and prejudice against LGBT people and ensure that they have information regarding safer sex, health services and mental health support in ways that is easily accessible.

With this judgement, public and private players in India’s health establishment must realise their responsibilities towards the LGBT community. In fact, Justice DY Chandrachud referred to these responsibilities specifically with regard to mental healthcare in the judgement, pointing to provisions in the Mental Healthcare Act, 2017.

The Act... provides for protection against discrimination on the grounds of sexual orientation. The repercussions of prejudice, stigma and discrimination continue to impact the psychological well-being of individuals impacted by Section 377. Mental health professionals can take this change in the law as an opportunity to reexamine their own views of homosexuality. 

The government needs to institute multiple initiatives to make sure that LGBT people and wider society benefit from this judgement. For starters, the government must begin sensitisation programmes for the police and health workforce in the public and private sectors. This should particularly focus on the needs to treat this community with dignity, and provide them equitable care without discrimination. We need changes in medical curricula which remain ancient and often teach discrimination in classrooms. We also need targeted stigma reduction through public awareness campaigns that focus on creating awareness and acceptance of LGBT community.

We need to create programmes that address the mental health needs of the community. As Justice Chandrachud says in the judgement,

Counselling practices will have to focus on providing support to homosexual clients to become comfortable with who they are and get on with their lives, rather than motivating them for change. Instead of trying to cure something that isn’t even a disease or illness, the counsellors have to adopt a more progressive view that reflects the changed medical position and changing societal values. There is not only a need for special skills of counsellors but also heightened sensitivity and understanding of LGBT lives. The medical practice must share the responsibility to help individuals, families, workplaces and educational and other institutions to understand sexuality completely in order to facilitate the creation of a society free from discrimination where LGBT individuals like all other citizens are treated with equal standards of respect and value for human rights.

We also need to create support networks amongst this community that reduce self-stigma and promote safer sexual practices. A considerable amount of work on this has already been done during India’s fight against HIV but much of that work needs to be revived and expanded. The government needs to partner with health and social care organisations to engage with the social networks within the LGBT community.

With the reading down of 377, India’s health establishment has a significant opportunity to engage with and address the needs of the entire LGBT population and ensure that they take measures to provide them an environment that prioritises their particular health concerns. This will have a direct bearing on disease control in multiple areas, not just HIV.

In this judgement Justice Indu Malhotra said “History owes an apology to LGBT persons for ostracisation, discrimination”. India has to the opportunity to right this historical wrong. It has an opportunity to transform and strengthen healthcare for this community which has historically been at the fringes of health policy. Now is the time to change this history of exclusion and create a foundation of a more inclusive, humane healthcare system.

The writer is a public health consultant.