Increasing Access to Health Care for the LGBT Community in India
By Kaitlin Allen
Recent years have seen major legal victories for LGBT rights across the globe.[1] One of the countries that has seen dramatic changes in the legal status of LGBT individuals is India.[2] Same-sex relationships were criminalized in India until 2018, when the Supreme Court struck down the application of the law to consensual same-sex relationships on the basis that it violated an individual’s right to privacy.[3] While the recent legalization of same-sex relationships in India was a major victory, LGBT individuals in India still face many challenges.[4] One of the biggest areas in which India needs to improve is in providing health care to LGBT individuals. Globally, members of the LGBT community have faced difficulty and discrimination when it comes to receiving healthcare services, and India is no exception to this problem.
In a major victory for LGBT rights, India’s Supreme Court struck down a section of India’s penal code which criminalized “consensual same-sex relationships” on September 6, 2018.[5] Under the penal code, same-sex relationships in India were punishable by 10 years up to life in prison.[6] The law had been previously struck down by the Delhi High Court in 2009, but the Supreme Court overturned that ruling in 2013.[7] In overturning the lower court’s ruling, the Supreme Court ruled that it was the responsibility of the legislature to amend the law and not the court.[8] The court also found that there was a lack of evidence that LGBT individuals were facing discrimination, either by the government or society.[9] In the most recent case overturning the law, the Supreme Court ruled that the law violated the right to privacy of LGBT individuals.[10] In addition to decriminalizing same-sex relationships, the court ruled that members of the LGBT community should be given full legal rights under India’s Constitution.[11]
Despite the Supreme Court’s ruling, many challenges for LGBT individuals in India remain.[12] One important step for equality is ensuring that members of the LGBT community are receiving proper health care.[13] The right to health has been recognized as a human right under the International Covenant on Economic, Social, and Cultural Rights.[14] There is a consensus that LGBT individuals face additional challenges when it comes to receiving health care.[15] However, there is not great global data on the increased health care burdens faced by the LGBT community.[16] The Kaiser Family Foundation found that in the United States, LGBT individuals face difficulties accessing health care due to factors such as social stigma, discrimination, and lack of coverage. [17] It also found that members of the LGBT community were at a higher risk for certain conditions such as mental health issues, HIV, and substance abuse.[18]
As recently as 2013, there was significant resistance from many countries about the World Health Organization addressing the issues that LGBT individuals face in receiving appropriate health care.[19] When the United States, Brazil, and Thailand asked for the issue to be raised at a WHO Executive Session, other countries from Africa and the Middle East asked that the item be removed.[20] It was the first time that an Executive Member Country had asked for something to be removed from an agenda.[21] The argument of these countries was that there was no health disparity between LGBT individuals and non-LGBT individuals.[22] They also argued that this was a political issue, not a public health issue and that any discussion of the problem could only serve to further damage public health.[23] Ultimately, the World Health Organization failed to reach any agreement on how to best address these issues.[24]
The International Federation of Medical Students’ Associations passed a resolution in 2014 that sought to end discrimination and improve the health of members of the LGBT community.[25] The proposal sought to decrease the number of laws around the globe that are discriminatory towards LGBT people and advocated for the inclusion of LGBT related content in medical school curriculum.[26] The Association directly referenced the failure of the World Health Organization to address these issues as a motivating factor behind the move.[27]
The challenges faced by LGBT individuals that are being noticed globally are also present in India. For instance, it remains difficult for patients in India to get access to services such as HIV testing.[28] Discriminatory attitudes amongst doctors make access to care more difficult.[29] When LGBT patients go see doctors in India, the doctors may try to prescribe conversion therapy, which can make LGBT individuals hesitant to interact with the medical profession at all.[30] In response to these challenges, some in the LGBT community in India have begun to create lists of LGBT-friendly doctors that are passed around online.[31] Many in India hope that in light of the Supreme Court’s ruling, the government will distribute new guidance to health care providers on how to properly interact with LGBT patients.[32]
There were some direct benefits of the ruling of the Supreme Court of India as it relates to public health.[33] The decision directly stated that India’s Constitution guarantees LGBT individuals the right to medical care.[34] In addition to the direct results of the decision, decriminalization allows for LGBT individuals to have frank discussions with their healthcare providers about their medical needs.[35] It also allows for health care professionals to distribute contraception and discuss safe sex practices without being concerned that they may be violating the law.[36]
The decision by the Supreme Court of India to decriminalize same-sex relationships was a positive move towards equality. It also allows for individuals to seek the health care they need in situations where they might have otherwise been unable. However, there is still much more work to be done. The World Health Organization’s inability to reach a consensus on these issues shows the difficulties that remain. More research should be done globally on the health outcomes of LGBT individuals. Additionally, the discriminatory attitudes of the medical profession should be addressed where applicable through greater training. Addressing the issues that LGBT individuals face when trying to receive health care is crucial in moving towards true equality.
[1] The State of LGBT Human Rights Worldwide, Amnesty International, https://www.amnestyusa.org/the-state-of-lgbt-rights-worldwide/ (last visited Nov. 4, 2018).
[2] Jeffrey Gettleman, Kai Schultz, and Subhashini Raj, India Gay Sex Ban Is Struck Down. ‘Indefensible,’ Court Says., N.Y. Times (Sept. 6, 2018), https://www.nytimes.com/2018/09/06/world/asia/india-gay-sex-377.html.
[3]Id.; India: Supreme Court Strikes Down Sodomy Law, Human Rights Watch (Sept. 6, 2018), https://www.hrw.org/news/2018/09/06/india-supreme-court-strikes-down-sodomy-law.
[4] Gettleman, supra note 2.
[5] India: Supreme Court Strikes Down Sodomy Law, supra note 3.
[6] Id.
[7] Id.
[8] Id.
[9] Jayshree Bajoria, The Indian Activist Jailed for Being Gay, Human Rights Watch, (Sept. 8, 2018) https://www.hrw.org/news/2018/09/08/indian-activist-jailed-being-gay.
[10] India: Supreme Court Strikes Down Sodomy Law, supra note 3.
[11] Gettleman, supra note 2.
[12] Id.
[13] Nils Daulaire, Bringing LGBT Health Care to the World Health Organization, Huffpost (June 13, 2013) https://www.huffingtonpost.com/nils-daulaire/world-health-organization-lgbt_b_3430849.html.
[14] Gender, Equity & Human Rights, World Health Organization (2016) at 4, https://www.who.int/gender-equity-rights/news/20170329-health-and-sexual-diversity-faq.pdf?ua=1.
[15] Daulaire, supra note 13.
[16] Id.
[17] Jennifer Kates, Usha Ranji, Adara Beamesderfer, Alina Salganicoff, Lindsey Dawson, Health and Access to Care and Coverage for Lesbian, Gay, Bisexual, and Transgender (LGBT) Individuals in the U.S, Kaiser Family Foundation, (May 3, 2018), https://www.kff.org/disparities-policy/issue-brief/health-and-access-to-care-and-coverage-for-lesbian-gay-bisexual-and-transgender-individuals-in-the-u-s/.
[18] Id.
[19] Daulaire, supra note 13.
[20] Id.
[21] Id.
[22] Id.
[23] Id.
[24] Lucas Scherdel, Amelia Martin, Abi Deivanayagam, Ellen Adams, Thomas Shanahan, The Search for International Consensus on LGBT Health, 2 The Lancet 321 (2014).
[25] Id.
[26] Id.
[27] Id.
[28] Sushmita Pathak, Furkan Latif Khan, India's Anti-Gay Law Is History. Next Challenge: Treat LGBTQ Patients With Respect, NPR (Sept. 17, 2018), https://www.npr.org/sections/goatsandsoda/2018/09/17/645279722/indias-anti-gay-law-is-history-next-challenge-treat-lgbtq-patients-with-respect.
[29] Id.
[30] Id.
[31] Id.
[32] Id.
[33] Id.
[34] Id.
[35] Id.
[36] Id.