In Public Interest Litigation, the Supreme Court issued a notice on Monday (April 8) emphasizing the need for central legislation to recognize the rights of intersex persons and children. The PIL requested guidance on how to prohibit intersex children from undergoing sex-reassignment surgeries prior to reaching the age of majority.
The biological characteristics of an intersex person are a combination of those of a male and a female, and the socially constructed categories of “male” and “female” do not adequately describe this person.
Intersex people, especially intersex children, don’t have their rights recognized, which is what the PIL is about. The person who sent the petition said that these kids have been discriminated against since birth because they can’t add information about their birth and death to online government registration forms. They are also not counted in the census, and they are not recognized as voters.
The petitioner expressed significant concern regarding the fact that in several jurisdictions, sex-determination surgeries are being conducted with the consent of the parents of infants. The Prohibition of aforementioned surgeries by the Madras High Court until the infant reaches the age of providing informed assent is limited to the state of Tamil Nadu. Legislative action is required to resolve the concerns raised by the medical interventions performed on children undergoing intersex surgery.
” In other jurisdictions such medical interventions are punishable offences, and there are special teams of doctors who are to determine whether the sex determination surgery is an urgent one or not until the child attains the age of giving informed consent. So in similar fashion, we do not have any legal mechanism”, the Attorney stated.
In response to the petition, a bench consisting of Chief Justice DY Chandrachud, Justices JB Pardiwala and Manoj Misra issued a notice and solicited the assistance of Additional Solicitor General Ms. Aishwarya Bhati in representing the Court.
Recall that the Madras High Court has prohibited infant sex-determination and reassignment surgeries. The bench of Justice G R Swaminathan was of the opinion that space and time must be provided for intersex children to discover their true gender identity. Nevertheless, the parents insist that their child undergo sex reassignment surgery (SRS). The Court rendered a decision that rejected the Health Ministry’s claim that the procedure was carried out with the assent of the child’s parents or guardians. It determined that parental consent should not be equated with child consent.
The Court duly acknowledged a report from the World Health Organization advocating for the postponement of intersex genital mutilation (IGM) until intersex individuals reach the age of capacity to make autonomous decisions.
The court stated, “The Hon’ble Supreme Court in NLSA case categorically stated that no one shall be forced to undergo medical procedures, including SRS, sterilisation or hormonal therapy, as a requirement for legal recognition of their gender identity. But, what is happening in reality is more in breach of this judgement given by the Hon’ble Supreme Court”.
The court ordered the state government to promulgate a government order prohibiting intersex neonates and children from undergoing sex reassignment surgeries.
After that, in August 2019, the Tamil Nadu government made an order that SRS could not be done on intersex babies, with the only exception being when the life of the infant was in danger.
“5. The Government after careful examination of all the above points and based on the opinions of the experts as forwarded by the Director of Medical Education, have decided to ban sex reassignment surgeries on intersex infants and children except on life-threatening situations and ordered accordingly. The life-threatening situation shall be decided by the Government based on the recommendation of the Director of Medical Education who shall form a committee comprising of 1) Paediatric Surgeon/Urologist 2) Endocrinologist 3) Social Worker/Psychology worker/intersex activist and 4) a Government representative not below the rank of Under Secretary to the Govemment. The Director of Medical Education shall take every step to ensure that the above exceptional clause of life-threatening situation shall not be misused in any way by anyone which shall affect the implementation of the ban on sex reassignment surgeries on intersex infants and children.”