OUT THERE: CARING FOR

GLBTI PATIENTS
Year 2, Society and Health, Assignment 3

MARCH 27, 2017

WORD COUNT: 2196
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Ethical and Legal Responsibilities

GLBTI Laws in India

Laws Pertinent to Homosexuals
Much like many former British colonies, India’s anti GLBTI laws stems from colonial law
(Rao and Jacob 2014).

Particularly, section 377 of Indian penal law states that:

“Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature
with any man, woman or animal shall be punished with imprisonment for life, or with
imprisonment of either description for term which may extend to ten years, and shall also be
liable to fine.”(Koushal vs. Naz (2013))

The term ‘carnal intercourse’ refers to any type of sexual intercourse that is not peno-vaginal.
This, obviously makes homosexual intercourse impossible. Therefore, in India, one cannot be
arrested for being homosexual or being in a homosexual relationship, but they can be arrested
for having sexual intercourse (Suresh 2016).

This said, in India, same sex marriage is not recognised. There is also no provision for
homosexuals to be in a same-sex ‘civil partnership’ which generally carries less rights
compared to a legal marriage (Nussbaum 2014).

Laws Pertinent to Transgenders

On April 15 2014, The Supreme Court of India recognised transgenders as a ‘third gender’.
This ensures that transgenders receive the basic rights (Swain 2016):
• Right to equality – prohibits discrimination based on their sexuality
• Right to freedom
• Right against exploitation – protection from child labour and human trafficking
• Freedom of Religion

Furthermore, the supreme court ruling deemed transgenders to be recognised as ‘Socially and
Economically Backward’. This means that the government will frame welfare projects that
are targeted to increasing quality of life for Transgenders (Swain 2016).

The above laws in India apply to males, females and transgenders equally (Swain 2016).

Discrimination
As defined by International Law, discrimination is defined as “any distinction, exclusion,
restriction or preference or other differential treatment that is directly or indirectly based on a
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prohibited ground of discrimination and that has the intention or effect of nullifying or
impairing the recognition, enjoyment or exercise, on an equal footing, of rights guaranteed
under international law” (Pillay 2012).

India’s anti-discrimination law, Article 15 of the constitution states that one cannot be
discriminated based on ‘religion, race, caste, sex, place of birth, or any of them.’ As can be
seen, homosexuality is not a prohibited basis for discrimination. However, transgenderism is
included in the ‘sex’ clause and thus transgenders are protected from discrimination (Swain
2016).

In India, the consummation of homosexual relationships is described as ‘carnal intercourse’

thus conveying a negative connotation to the premise of a homosexual relationship. This
encourages social discrimination against homosexual because they are based on ‘carnal’
pleasures (Mimiaga, Closson et al. 2015).

Health Impacts of India’s LGBTI Laws

The outlawing of homosexual sex, as per section 377 in Indian Penal Law is discriminatory
against homosexuals. Owing to the substantial stigma from the society, in particular the legal
system and healthcare workers, homosexuals find it particularly hard to access HIV
healthcare and testing services. The same problem of stigma and low access to healthcare
also affects the transgender community, although their rights have been in part recognised by
Indian law. Also, social exclusion and discrimination that results due to the anti-homosexual
laws negatively affect their mental health, resulting in higher rates if depression among
homosexuals (9% greater than the lifetime risk of depression in the general population
(Tomori, McFall et al. 2016)). Transgenders, however face social stigma in that most are
involved in either sex work or begging for a living, which would result in their lower overall
mental health (Kalra and Shah 2013).
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Caring for Gay Patients

Legally and ethically, the treatment of GLBTI patients in a clinical setting can be very
sensitive. The specific issues of GLBTI patients must be understood because these patients
are part of a highly stigmatised group of society and they have a particular set of health issues
that are common among them.

Legal Aspects of the Treatment of Gay Patients

India
In India, homosexual intercourse is prohibited as per section 377 of Indian Penal Code. Thus,
while it is legal to be a homosexual, one can be arrested for having non peno-vaginal sex
(Rao and Jacob 2014). As a result, it can often be difficult for a gay patient to disclose his
sexual orientation to his doctor, even in situations where this information can be clinically
relevant. However, in these scenarios, although it is not universally understood by patients,
the ethical requirement of doctors to uphold confidentiality is recognised by Indian law as
part of Section 29 of the Indian Evidence Act. Despite this, it can still be hard for a patient to
disclose sexual orientation to a doctor due to the intense stigma against homosexuality in
India, and the patient's uncertainty of how his sexual orientation would affect his relationship
with his doctor (Badgett 2014).

Australia
In Australia, gay men have equal rights compared to heterosexuals with the notable exception
being the fact that gay men cannot legally marry. Although it is possible for gays to obtain a
civil partnership which is legally identical to a heterosexual de-facto relationship (Nielsen
2012).

Apart from this, however, gays face no legal threats due to their sexual orientation, and have
the same rights as heterosexuals. Thus, doctors must never assume sexual orientation of their
patient as this may constitute medical negligence on the part of the doctor.

Ethical Aspects
From an ethical standpoint, treatment of homosexuals in India must obey the same ethical
principles followed in Australia, as ethical principles are universal, although their application
in practice may vary depending on the circumstances.

Arguably the most important ethical consideration is that doctors do not refer to or
understand homosexuality as a pathological state. From the point of view of a gay patient,
considering homosexuality as a disease negatively affects their self-image and mental health
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(Peel 2002). Thus, identifying homosexuality as a normal variation is important in upholding

the principle of non-maleficence (McNeill, Torda et al. 2004).

The practitioner and medical system must also uphold the ethical principle of beneficence. A
good practitioner always tries to help patients in the best way possible and overall, the
medical system must maintain the health of the wider community. Thus, gay patients must be
screened for diseases and pathologies from which they are particularly susceptible, so long as
proper medical consent is given by the patient. Furthermore, under this principle, it is
important that practitioners do not assume that the patient is heterosexual. This will make it
harder for the patient to disclose their sexual orientation and without the complete
psychosocial context of the patient, giving effective treatment can be very difficult (McNeill,
Torda et al. 2004).

Since homosexuals form a population minority, there is a corresponding minority of gay

practitioners among health care workers. In the interest of justice of medical treatment,
therefore, all practitioners must be able to understand the specific diseases that gay men are
more susceptible to and it is part of the role of the medical education to make sure of this. For
example, not all gay patients may reveal their mental health issues unless they are specifically
asked about their mental health by their doctor. Doctors who are ignorant of the specific
mental issues that gay people face will not know to look for the symptoms of low mental
health in their gay patients (McNeill, Torda et al. 2004).

Finally, confidentiality is a general ethical principle that applies to all patients and is even
enforced by the law in both India and Australia. However, many gay patients may have kept
their sexual identity a secret even from family and close friends, so as a practitioner it is
important to clearly state to them that any information they give you will be kept confidential
(McNeill, Torda et al. 2004).
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Out There: Personal Reflection

‘Out There’, to me, was very poignant and insightful experience that substantially changed
the way I understand minority sexual orientation. As a medical student, however, the
documentary really made me think about the wider ethical aspects of treating LGBTI+
patients and how important it is to understand the specific issues they suffer from. Overall,
since I am a person who does not know very many LGBTI people, the documentary really
opened my mind to their emotions and allowed me to advance in my quest to be an
empathetic practitioner.

The beginning of the series focussing on the British community’s collective joy over the
triumphs of the LGBTI movement allowed me to sympathise with a group of people I had
little knowledge about. In stark contrast, visualising the terror of oppression against
homosexuality in Iran truly disgusted me. The comparison between the picture of acceptance
in Britain against the picture of oppression in Iran heightened the intensity of my feelings.
However, what I found most alarming was the fact that I was sympathising with many beliefs
the homophobes in the documentary spoke about. For example, although I was never a
homophobe, I had previously conceptualised homosexuality as a chronic illness. Also, I
opposed the idea of homosexuals having children as I blamed the bullying a child may face
for having homosexual parents on the homosexuality of the parents. These, obviously are
very homophobic views and I was shocked that I was identifying with the very people that
were vilified in the documentary although I felt genuine empathy for the victims of
homophobia. Overall, this brought me to realise that I must always consciously understand
and amend my opinions on matters such as homosexuality that will be relevant to my future
as a practicing doctor.

The victims for whom I felt the most empathy was Farshad and Stosh. In hearing Farshad’s
story of terror and separation from the man he loved really showed me how destructive and
appalling homophobia can be. And since homophobia is often a result of ignorance, this
brought me to fear that my own ignorance of homosexuality and LGBTQ+ could lead to such
opinions that victimise those of the LGBTQ+ community. Indeed, this hit home on hearing
Stosh’s story, where a woman’s life was completely ruined due to a rape that was entirely due
to a community’s ignorance of the nature of homosexuality. Since I used to believe that
homosexuality was a genetic pathology I felt incredible remorse on understanding that the
destruction of the innocent lesbian’s life was entirely due to the community believing that
homosexuality could be ‘cured’ through experience. The person I empathised least with was
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Vitaly Milonov, due to his smug confidence in his own homophobic opinions. It is important
that one stands by what they believe, but in Milonov’s case, harm was being done to innocent
homosexuals in Russia due to Milonov’s opinions which had absolutely no evidence behind
them.

Thus, through Fry’s documentary, I have certainly gained a significant understanding of the
mental and social issues that plague those of the LGBTQ+ community. As a future
practitioner, I feel responsible for ensuring that these people are taken care of by the medical
system in the best way possible to handle the specific issues that they face, compared to the
general population. Thus, in gaining empathy for the LGBTQ+ community, I believe I have
advanced to become a more understanding future practitioner.
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Personal Reflection
It is certain that this assignment has been a very eye opening experience and has certainly
aided my development into a reflective and empathetic practitioner.

Care was taken to make sure that the assignment met the criteria of generic and focus
capabilities. To address the Ethical and Legal responsibilities capability, I consulted with
peers who were doing a law degree to get advice on understanding how to read and interpret
laws. In terms of the ethics, I only attempted to do the ethics based sections after completely
reading through the ethics wheel and the documents that the wheel referred to. All reflection
was done from a completely neutral standpoint and I believe I reproduced and explained my
emotions in as much detail as was permissible by the word limit. However, I feel that I could
not include an adequate range of media in my assignment to address the ‘Effective
communication’ capability. This was, in my opinion due to the nature of the assignment
which did not require much data, tables or graphics.

The greatest problem I faced was researching for laws. I initially tried searching in Google
Scholar and Pubmed, but I was not getting many results. In fact, I found that searching in
Google gave me better results than Google scholar. Surely there must be a more efficient
search engine, database or research method to search for laws, but I still do not know how to
understand and research laws. None of my peers from la courses that I consulted could guide
me either. I also do not understand what kind of law resources are considered reliable – many
law blog sites were given in the suggested resources for this assignment. However, in the end,
I made many of my own interpretations of constitutional laws based mainly on news articles.
In future, I should decide reliability and accuracy using a CRAAP analysis if the source is
questionable.

This assignment overall introduced me to the technique of reflecting within an ethical

framework, forcing me to use higher order thinking. Through this assignment, I have become
more in touch with my own opinions and emotions, critical qualities in a good medical
practitioner.
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Bibliography
(2013). Koushal SK and another versus NAZ Foundation and others, Supreme Court of India.

Badgett, M. L. (2014). "The Economic Cost of Stigma and the Exclusion of LGBT People: a
case study of India." World Bank Group, Washington, DC.

Kalra, G. and N. Shah (2013). "The cultural, psychiatric, and sexuality aspects of hijras in
India." International Journal of Transgenderism 14(4): 171-181.

McNeill, P., et al. (2004). Ethics Wheel. Kensington, University of New South Wales.

Mimiaga, M. J., et al. (2015). "Garnering an in-depth understanding of men who have sex
with men in Chennai, India: a qualitative analysis of sexual minority status and psychological
distress." Archives of sexual behavior 44(7): 2077-2086.

Nielsen, M. A. (2012). Same-sex marriage Parliament of Australia.

Nussbaum, M. C. (2014). "Disgust or Equality: Sexual Orientation and Indian Law." J. Indian
L. & Soc'y 6: 1.

Peel, E. (2002). "Lesbian and gay awareness training: challenging homophobia, liberalism
and managing stereotypes." Lesbian and Gay Psychology: New Perspectives: 255-274.

Pillay, N. (2012). Born Free and Equal: Sexual Orientation and Gender Identity in
International Human Rights Law. United Nations New York, United Nations Human Rights.

Rao, T. S. and K. Jacob (2014). "The reversal on gay rights in India." Indian journal of
psychiatry 56(1): 1.

Suresh, M. (2016). Jyoti Puri: Sexual States: Governance and the Struggle Over the
Antisodomy Law in India, Springer.

Swain, G. (2016). "Transgenders as the ‘other’: The politics of Transgender community after
the historic Supreme Court Verdict." International Research Journal of Multidisciplinary
Studies 2(2).

Tomori, C., et al. (2016). "Diverse rates of depression among men who have sex with men
(MSM) across India: insights from a multi-site mixed method study." AIDS and Behavior
20(2): 304-316.
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