Rohin Bhatt & Sarthak Virdi

This piece aims to analyze how accessible healthcare is to queer individuals and locates itself within personal accounts. It presents access to healthcare as a function of one’s socio-economic standing and showcases queer exclusion through examples of practices such as conversion therapy. It historically contextualizes the queer movement in India in the demand for contraceptives from the MSM community in the Tihar Jail in the 1990s and shows how queer identity still remains tied to notions of disease and is sexualised and stigmatized. Finally, it proposes queer bioethics as the counter to undo the assumption of heteronormativity within healthcare.

Introduction

As a queer man, I (Rohin Bhatt) have had intimate experience in being met with judgement when I have gone to a pathologist asking for STI Screening. I am an upper caste, upper-class queer person who perhaps has access to the finest care that is available in this country. This exclusion which pushes queer people out of wanting to seek healthcare, which in some cases might prove fatal is the norm, rather than an exception. Therefore, for me, as much as this piece is about the politics of health, it is also personal. As they say– the personal is political and the political is personal. It is not just clinical care that queer people find themselves excluded from, but also mental healthcare, and research settings where queer persons are underrepresented. This stigma is representative of the attitudes of the doctors in medical school. A 2017 survey of students at Kolkata’s National Medical College found that around a sixth of respondents believed that homosexuality is a disease, over a quarter considered LGBT individuals to be promiscuous and nearly a tenth felt that they pose a threat to children. Studies have shown that a large majority of the psychiatrists in India still consider diverse sexual orientations and gender identities as a disorder and practice ‘correctional therapy’. 

Marginalisation and Social Determinants of Health

We know now that health is impacted by factors beyond medical care. The environment we grow up in, the food we eat, the work we do all impact our healthcare outcomes. It is also well established that the developments of science and the advances therein have been far from uniform in their distribution. This raises serious issues of distributive justice, and leads us to the idea of Rawlisan justice. It becomes critical to use this lens to determine the construction of socio-economic relations to understand inequities in healthcare and create a queer affirmative praxis in healthcare, not just in the medical sense but also in how we construe the right of healthcare as a fundamental human right.

But first let us define marginalisation. Multiple scholars have sought to define the terms and the matrices of marginalisation in their own ways. For the purposes of this paper, we will limit ourselves to the definition of Hall et al who define it as, “the process through which individuals or groups are peripheralized on the basis of their identities, associations, experiences, and environments.” This definition gives us two axes to understand marginalisation of queer persons: as individuals, where each person on the periphery due to their own unique identities and as a group where there is systemic exclusion of queer persons. We do, of course not wish to reduce the queer community to a monolith, and recognise that there are various intersectionalities within the community. What we seek is to merely find common ground that affects all the members of the community. In this section, we will limit ourselves to the latter and understand the marginalisation of the community as a whole first and then draw upon the unique challenges faced by individual through the example of Ananyah Kumari Alex and illustrate how despite the nuances of our individual identities as queer people, there is still a common thread of discrimination writ large in medicine.

Queer affirmative practices have long been missing in medicine, medicine textbook, in public health and in hospitals. Take for example the vaccine drive. A report by News 19 noted that trans people did not have the option of choosing their gender during vaccination. The vaccination forms do not have the provision that allows anyone to choose the ‘transgender’ as an option and have a generic ‘other’ listed in the gender section instead. This systemic erasure of queer persons leads us to a fundamental premise that medicine and public health, and perhaps all other aspects of social life in India are operating from a epistemic position of cis-heteronormativity. How do we queer medicine to make it queer inclusive? The answer lies, to us, not just in queering medical curricula but to create safe spaces and affirmative actions for queer persons in all other fields of life– in employment, in schooling, in public representation, amongst others. Doing that, and improving social determinants of healthcare will account for nearly 30-55% of healthcare outcomes, according to the WHO. 

However, this marginalisation has to be addressed in the hospitals and in medical curricula too. Consider this case of a trans person, a victim of a train accident who died unattended because for 3-4 hours, doctors could not decide whether to admit her to a male or female ward. Or consider the case of Ananyah Kumari Alex, who died by gross medical negligence. Affirmative practices are the need of the hour and have in recent times, been forced in through an order of the Madras High Court which has gone far in regulating curricula, outlawing conversion therapy and directing the government to publish a queer inclusive gazette. 

Another major social determinant for queer health which is largely ignored in our conversation is housing. Both empirical and theoretical studies have shown that housing service provision, tenants’ experience of property quality and aspects of neighbourhood are all determinative of health and well-being of queer people. When trans people are thrown out of their houses as children, they seldom have safe spaces to go to. Though alternate structures of care in gharanas are present, they lack legal recognition. That is not to say that queer people are safe in the government shelter homes too. 

This is an inexhaustive list of social determinants that take a plunge when the person in question is queer. Combine this with intersectionalities like class, caste and disability, and the problem becomes far more complex, not just as a matter of medicine and right to health, but also as a matter of public policy. To fix this, it is essential that there is political will, that has hitherto and continues to been absent, to improve  social determinants of health, not just for queer persons but for other marginalised populations and the society as a whole.

Stigmatising Identities: Law as a Social Determinant

But perhaps, the most important social and political determinant of health is the law. Scholars have long argued that, “law is a structural determinant creating institutions and distributing resources, and law is a social determinant impacting the conditions of people’s daily lives.” What better tale than that of S. 377 to tell the tale of law as a social determinant. But more importantly, even after 377 was read down, marginalisation in legal and police settings, including discrimination, denial of rape and looking at queer and trans persons as HIV vectors only remains the norm. This discrimination, in some cases proves to be disastrous and in some cases increases the distrust and mistrust in the medical system, and also leads to self stigmatisation. Vivek Anand recently told the Guardian,  “Over the years, 30-40% of the individuals who tested HIV positive at our clinic disappeared at some point during their [ARV] treatment at government hospitals…Half of them never even showed up. More than discrimination, self-stigmatisation keeps the community away from accessing treatment.”

Stigmatization within the Healthcare sector 

This section seeks to show stigmatisation as a result of an assumption in favour of cis-heterosnormativity by first, historically locating the queer rights movement in India as a result of the absence of accessible healthcare for queer individuals; second, it contrasts the rights-based vocabulary employed by Navtej with ground reality; third, it proposes queer bioethics as the solution; fourth, it shows what such an approach can do by using the Transgender Persons (Protection of Rights) Act, 2019 as an example of legislation that takes queer perspectives into account. 

The movement for LGBT rights in India began in the 1990’s with a petition filed by ABVA against S. 377 in the backdrop of segregation of HIV inmates in Tihar Jail. The queer community, especially men having sex with men as a group, garnered attention in the backdrop of rising HIV cases in the 2000s while the continued to face mistreatment. The attention to the queer community was brought against a rising rate of STDs and it ended up becoming a public health concern. This continues to have ripple effects even today for the community has not been able to detach itself from tags of contagion, containment and sex. Healthcare for HIV still remains inaccessible for queer persons. A looming thread in all petitions, around the world, against the criminalisation of homosexuality has been the inextricable link between queerness and AIDs.

With judgements in Naz, NALSA and Navtej, the vocabulary employed towards the community seems to have changed, at least in the judicial approach. Navtej grounded the claim against S. 377 as one that was a claim for equal citizenship. However, we would argue that a limited change that has occurred, at least in the matter of access to healthcare. The most apparent form of stigmatisation comes off on a reading of accounts of conversion therapy which involves sexual and physical abuse in order to treat deviant sexualities. This has been visible over and over in testimonies against these ‘treatments’ and most recently, in the death of Anjana Hareesh who died of suicide post a harrowing experience in conversion therapy. Since then, an order of the Madras High Court has ruled that conversion therapy is medical malpractice. Queer identities thus still remain pathologised, despite multiple professional bodies reiterating that queerness is not a condition that has to be cured. This operates as a bar in making equal claims to citizenship and was seen most starkly in the discrimination against transgender persons in the delivery of COVID vaccines. Division of isolation of isolation facilities into ‘male’ and ‘female’ complicates the case for those that do not fall within the gender-binary and this is precisely what the presumption of a gender binary does to rights: specific stereotyped categories become the only means through which rights can be claimed.

The exclusion of queer individuals from the healthcare sector can be remedied by a queer approach to bioethics, or queer bioethics (QB). Feister and Wahlart develops QB through a two-fold approach: first, paying attention to queer issues and second, examining how queerness complicates everyday health issues. This comes as a pushback against an assumption of heterosexuality within the healthcare sector and shows the futility of practices such as conversion therapy. This approach could have remedied the exclusion of transgender persons from the healthcare drive for it recognises the possibility of patients not being either male or female and premises itself on a different, more inclusive approach. It recognises queer identity and demands developing solutions that are not premised on stereotypical norms.

The policy implications of a queer approach to healthcare can be seen in the 2019 Transgender Persons (Protection of Rights) Act, 2019 and the accompanying Transgender Persons (Protection of Rights) Rules 2020. As per Section 3 (d) of the 2019 Act, unfair treatment against transgender persons is prohibited in the health care sector and as per Rule 7 (3), the government is obligated to formulate educational, social security and health schemes ‘in a manner so as to be transgender sensitive, non-stigmatising and non-discriminatory to transgender persons’. 

Conclusion

To fix our healthcare, we must first, and foremost fix our broken democracy. A neoliberal government that has led to a rise in hindutva and homonationalism becomes a first issue that we need to tackle. This has to be complemented with systemic changes in medical education, that moves towards a more queer affirmative system of medicine, in appreciating the nuances of diverse queer identities that India has that may not fit in the traditional Western epistemology of queerness. This merits greater research on these vulnerable groups, preferably led by them, so that the findings can be used in order to provide better healthcare. Regulators, like National Medical Commission, must also come down heavily on those that discriminate against queer persons.But equally important, is paying heed to the social determinants of healthcare. Housing, right to livelihood, employment, stable support structures like gharanas have to be paid attention to and prioritised. More importantly, queer voices need to be recognised as the focal point of discourse. When all this is done, only then, perhaps a right to a truly equal citizenship that Navtej envisaged can be realised.

Rohin Bhatt graduated from Gujarat National Law University in 2021 with a B.Sc. LL.B. (Hons.) and with a Master of Bioethics at Harvard Medical School, where he was the class speaker, and is a co-founder of the Indian Bioethics Project. He is a regular contributor to The Leaflet. Most of his work focuses on constitutional law, bioethics (with a particular focus on feminist and queer approaches to bioethics), and the effects fascism has on human rights and their intersections. It has appeared in both public and academic platforms.

Sarthak Virdi is a student of National Law School of India University, Bangalore.