Theme: Gender & Reproductive Health

What is the need for LGBTQ+ specific healthcare?

LGBTQ+ persons might have healthcare needs that are specific and unique to their experiences. Some of the common healthcare issues are:

There may also be a social bias present, which may make accessing adequate healthcare difficult. For example, a therapist may refuse to treat someone because they are gay or a transgender person.  This may result in people avoiding treatment in a timely manner, or may result in a person not disclosing their true gender/sexual identity, which may lead to added complications. This is why it is important for to understand your rights while accessing healthcare.

If a person faces any discrimination while accessing medical or psychological healthcare, they can take action to alleviate the problem. Read for more options in our explainer “What are the options if there is discrimination and harassment by medical personnel against LGBTQ+ persons?“.

What is abortion?

Abortion refers to the termination of a pregnancy by a doctor. In India, a pregnant woman cannot get an abortion if a doctor is not satisfied that she meets the conditions for it. The number of doctors that decide whether a woman can get an abortion, depends on the number of weeks of her pregnancy.

What are the rights of LGBTQ+ persons with respect to mental health?

Trigger Warning: The following content contains information on mental health issues which some readers may find disturbing.

Not being a straight person/cisgendered is not grounds for being diagnosed with a mental disorder. This means merely being a LGBTQ+ person does not make someone mentally ill.((National Legal Services Authority v. Union of India & Ors. (AIR 2014 SC 1863 )). However, when a person experience significant distress due to the difference between the gender  assigned at birth and gender that they identify with, they may be diagnosed with Gender Identity Disorder.((ICD.Codes, ICD-10-CM Code F64.8, https://icd.codes/icd10cm/F648; Section 2(s), Mental Healthcare Act, 2017 )).

In India, an LGBTQ+ have some rights with respect to mental health:

  • A person cannot be categorised as mentally ill merely if they do not conform to the moral, social, cultural, work or political values or religious beliefs of the community.((Section 3 (3), Mental Healthcare Act, 2017 )) For example, a person is not mentally ill just because they are gay.
  • A person has a right to mental healthcare services offered by mental healthcare establishments funded/run by the government((Section 18 (1), Mental Healthcare Act, 2017 )).
  • Healthcare services cannot be denied to anyone, as referred to above, on the basis of sex, gender or sexual orientation, etc.((Section 18 (2), Mental Healthcare Act, 2017 )).

If a person faces any discrimination while accessing medical or psychological healthcare, they can take action to alleviate the problem. Read for more options in our explainer “What are the options if there is discrimination and harassment by medical personnel against LGBTQ+ persons?“.

Who does this law apply to?

A pregnant woman can seek a legal abortion under two circumstances. First, to preserve the woman’s health, and second, in cases of fetal abnormality. However, in both these cases the doctor’s assessment for abortions is heavily relied on.

Woman’s Health

A doctor can perform an abortion only if in their medical opinion the abortion is necessary because(( Section 3(2), The Medical Termination Of Pregnancy Act, 1971.)):

  • The continuation of the pregnancy would be a risk to the life of the pregnant woman, or
  • The continuation of the pregnancy would cause her grave physical or mental injury.

To understand whether the health of the woman is going to be affected, the doctor is supposed to look at the environment she lived in before the abortion, and the environment she will likely live in after the abortion. The purpose of this is to assess the mental and physical health of the woman by understanding the social circumstances she will be subject to, and the repercussions she will have to face due to her decision to abort((

Section 3(3), The Medical Termination Of Pregnancy Act, 1971.))

The doctor must also consider the term of the pregnancy while assessing the abortion, unless it is an emergency abortion.

Fetal Abnormality

If there is a high chance that the child born would suffer from physical or mental abnormalities which would leave it seriously handicapped, then the doctor can decide to allow an abortion. These abnormalities include  severe cardiac problems, congenital disorders, brain anomalies and a scenario of multiple fetal abnormalities that leave the fetus with severe physical handicaps as well as fewer chances of survival(( Section 3(2), The Medical Termination Of Pregnancy Act, 1971.)).

Apart from these two circumstances, the law also has provisions for:

What are the common sexual health issues faced by LGBTQ+ Persons?

Trigger Warning: The following content contains information on sexual health issues which some readers may find disturbing.

A person may be at risk of contracting Sexually Transmitted Infections/Diseases (STI/STD) like gonorrhea, syphilis, AIDS, etc., if they are sexually active. The risk of contraction may be higher if a person fall into certain categories. For example, in a report, the National AIDS Control Program1 identified Men Having Sex With Men (MSM) and transgender persons as one of the high-risk groups for HIV/AIDS.

If a person is sexually active, they should speak to their doctor about STI prevention, screening tests recommended, etc.

Government-Aided Schemes and Clinics

The government has come up with various schemes to help people suffering from STIs, irrespective of gender identity or sexual orientation. Please see here for a state-wise list of clinics providing free services to such persons.

If a person faces any discrimination while accessing medical or psychological healthcare, they can take action to alleviate the problem. Read for more options in our explainer “What are the options if there is discrimination and harassment by medical personnel against LGBTQ+ persons?“.

  1. National Aids Control Organization, Ministry of Health and Family Welfare, Government of India http://naco.gov.in/ [↩]

When is an abortion legally allowed?

Abortion is legally permitted only if the term of the pregnancy is not more than 20 weeks. However, a pregnant woman cannot get an abortion if a doctor is not satisfied that she meets the conditions for it. The number of doctors who have to decide whether she can get an abortion depends on the number of weeks of her pregnancy.

Less than 12 weeks

If the length of the pregnancy has not exceeded 12 weeks, i.e. is still in the first trimester, one doctor has to agree to the abortion.

Between 12 weeks and 20 weeks

If the length of the pregnancy has exceeded 12 weeks, but is less than 20 weeks then, at least 2 doctors have to agree to it(( Section 3(2) The Medical Termination Of Pregnancy Act, 1971.)).

However, emergency abortions can be conducted both before and after 20 weeks.

What is gender affirmative therapy and corrective surgery for LGBTQ+ persons?

Typically, those who do not identify with the gender assigned to them at birth may want to go through surgeries to align more strongly with their chosen gender. However, a person does not have to go through any surgeries to be given recognition with their self-identified gender.((National Legal Services Authority v. Union of India & Ors (AIR 2014 SC, 1863 )). In this regard, given below are two of the most common forms of surgeries performed:

  • Gender Affirmative Therapy (GAT) is a set of procedures, from psychological counselling to sex reassignment surgeries, which aim to change a persons appearance so that it will conform more strongly with the self-identified gender.  For example, Rita was identified to be female at birth, but while growing up, identifies herself as male, and may undergo GAT to masculinize her appearance through breast removal surgery, etc.

The Supreme Court((National Legal Services Authority v. Union of India & Ors (AIR 2014 SC, 1863 )) has held that it is a constitutional right for a person to be affirmed as male or female after the respective GAT, and that there is no impediment, legal or otherwise, in undergoing GAT.

  •  Corrective surgery/intersex surgery refers to procedures done to modify sex characteristics and genitals when they are anomalous, meaning when there is no clear distinction between male and female genitals.  For example, a child, Nakul, is born with both male and female genitalia, and decides that he self-identifies and feels that his gender is male, and thus, undergoes corrective surgery to align more strongly to the male gender.

Though nation-wide regulations do not exist, some states, like Tamil Nadu, have banned unnecessary medical procedures on infants, to prevent illegal corrective surgery at a young age((Arunkumar vs The Inspector General Of Registration (WP(MD) No. 4125 of 2019 )).

Procedure for GAT and Corrective Surgery

In India, there are no guidelines for eligibility, procedure, etc. or laws on GAT or Corrective Surgery.

If a person faces any discrimination while accessing medical or psychological healthcare, they can take action to alleviate the problem. Read for more options in our explainer “What are the options if there is discrimination and harassment by medical personnel against LGBTQ+ persons?“.

Can an abortion be conducted after 20 weeks of pregnancy?

Except in case of emergeny abortions, the law does not state who can take a decision if an abortion is required after 20 weeks. Legally, doctors are not allowed to decide on this. So, the only recourse for a pregnant woman will be to approach the Courts allow the abortion.

There are many cases where a request has been made to the Courts to abort the fetus after 20 weeks, for several reasons such as:

  1. The pregnancy is harmful to the health of the woman.
  2. The pregnancy would result in abnormalities for the baby.
  3. The pregnancy was caused by an act of rape.
  4. The abortion could not be done before 20 weeks because of the negligence of medical authorities.

Courts usually refer such cases to a Medical Board or a Medical Panel set up in hospitals, to look into the pregnancy and determine whether the abortion should be conducted, taking into account the health and well-being of both the mother and the fetus. After carefully considering the opinion of the Board or Panel, they decide whether the abortion beyond 20 weeks should be allowed.

The decisions made by Courts are usually on a case-to-case basis. For example, the Kerala High Court1 dismissed a couple’s plea to abort a 35-week-old fetus. The couple had requested the abortion for medical reasons because the fetus has serious developmental brain anomalies. The Punjab and Haryana High Court(( Kavita and Another v. Post Graduate Institute of Medical Education and Research, through its Director and Others, CWP No. 11394 of 2020. )) has decided to look into the issue of abortion after 20 weeks of pregnancy.

For more information on access to safe abortions, please refer to this government handbook.

  1. Akhila Kurian Alias Akhila Ann Baby v. Union of India, WP (C) No. 27842 of 2020. [↩]

What is the importance of consent for GAT and Corrective surgery?

When a person goes for any surgery including GAT or corrective surgery, remember that it cannot be done without their written consent. The age of consent for medical procedures is 18 years((Section 3, Indian Majority Act, 1875 )), and  consent given by a person of unsound mind or a child below 12 years is not valid.((Section 90, Indian Penal Code, 1860 )).

No one including hospitals, medical practitioners, acquaintances etc can force a person to undergo((National Legal Services Authority v. Union of India & Ors (AIR 2014 SC, 1863 )) GAT/Corrective Surgery as a legal condition for recognizing their gender identity.

The doctor doing any surgery needs to ensure that the consent given by the person is real consent, meaning the person giving consent should((Samira Kohli v. Dr. Prabha Machanda and Ors (2008) 2 SCC 1 )):

  • Have the capacity and competence to consent. For example, someone of unsound mind will not be able to consent.
  • Give consent voluntary. For example, if a person is being coerced by family members to undergo any procedure, it is not real consent.
  • Be based on adequate information on the treatment procedure, so that the person knows what they are consenting to. Adequate information on the procedure includes:
    • The nature and procedure of the treatment;
    • Its purpose and benefits;
    • Its likely effects and any complications which may arise;
    • Any alternatives if available;
    • An outline of the substantial risks; and
    • Adverse consequences of refusing treatment.

However, adequate information need not include remote risks, rare complications and possible results of negligent surgery.

If a person faces any discrimination while accessing medical or psychological healthcare, they can take action to alleviate the problem. Read for more options in our explainer “What are the options if there is discrimination and harassment by medical personnel against LGBTQ+ persons?“

Who can perform abortions?

Under the law, only a ‘Registered Medical Practitioner’ can perform the abortion procedure. For a doctor to be recognised as a registered medical practitioner, the following conditions must be fulfilled:

  • They must possess recognised medical qualifications such as MBBS, MD, MS, etc. (A list of these qualifications can be found in the Schedule of the Indian Medical Council Act, 1956).
  • They must be enrolled in the State Medical Register.
  • They must have training in gynaecology and obstetrics (OB-GYN)(( Section 2(d), The Medical Termination Of Pregnancy Act, 1971)).

Only in case of emergency abortions, any registered medical practioner, regardless of whether they are an OB-GYN, can conduct the abortion in good faith.

If the abortion is carried out by a person who is not a registered medical practitioner, then such a person can be punished with rigorous jail time between 2 and 7 years(( Section 5(2), The Medical Termination Of Pregnancy Act, 1971)).

It is important to note that ayurvedic, unani or homeopathic doctors, or nurses, cannot legally perform abortions.