How India Can Lead The Intersex Rights Movement

On 22 April 2019, the Madras High Court delivered a landmark judgement for intersex children in India, recognising their consent rights and the right to bodily integrity.

This judgement demonstrated the utility of constitutional interpretation as a tool to advance rights of intersex persons. The ruling has been immensely helpful for intersex activists in launching constructive advocacy efforts on a long-standing demand of intersex community, ie, ban on unnecessary medical surgeries on intersex infants and children.

The judgement has been hailed by intersex activists and human rights organisations across the world. As a direct consequence of this judgement, the state of Tamil Nadu became the second place globally to have a legal protection regime for intersex human rights.

On Wednesday (22 April), intersex community in India celebrated the first National Intersex Human Rights Day. This day needs to be celebrated across the country as it added a new strand to our understanding of biological sex.

Traditionally, we are made to think about biological sex in the binary of male and female.

However, Intersex people are born with sex characteristics (including genitals, gonads and chromosome patterns) that do not fit typical binary notions of male or female bodies.

According to experts, between 0.05 per cent and 1.7 per cent of the population is born with intersex traits. (Source: UN Factsheet on Intersex)

Still, we hardly ever get to hear about them. Intersex people are invisiblised due to our binary understanding of biological sex. And because they do not conform to the binary, intersex people are made to undergo medical surgeries in their early childhood so as to align their body with the traditional notions of sex.

These surgeries are invasive, involuntary and potentially harmful in the long-run due to their irreversible nature.

For decades, intersex organisations around the world have been demanding a complete ban on sex normalising surgeries.

Every year, more than 13,000 intersex children in India are made to undergo such procedures. (Source: Srishti Madurai Educational Trust Archives) Still, there is no standard medical protocol for treatment of intersex children.

The Madras High Court judgement outlawed this practice because it goes against their bodily integrity and their consent rights.

According to an official response of the National Human Rights Commission with the Ministry of Health & Family Welfare, these surgeries are being performed in India after “taking a written consent of the patient/guardian”.

The court examined the validity of consent given on behalf of intersex infants for undergoing sex selective surgeries and it held that the consent of the parent cannot be considered as the consent of the child.

In a judgement laced with references from ancient Indian epics as well as landmark apex court decisions, the Madras High Court banned such surgeries on intersex children and infants and directed the Tamil Nadu government to enforce the ban.

On 13 August 2019, the state government passed a government order banning the practice of sex normalising surgeries on intersex children except in life-threatening situations.

With this government order, Tamil Nadu became the first state in India to have given normative effect to the demand for stronger legal protection of rights of intersex children.

If adopted nationally, India will become the second country globally after Malta to have a legal regime which protects the rights of intersex children.

In a petition to National Human Rights Commission (NHRC) written in 2016, I had raised the demand to ban such surgeries on intersex infants and children.

Prior to this judgement, intersex people in India were largely absent from the legal discourse and were consequently invisiblised in the public discourse as well.

This judgement was the first instance in which a court of law defined the term — ‘intersex’ and also highlighted the need to eliminate stigma against intersex people and the obligation of the government to raise public awareness on intersex rights.

Through the judgement, Justice G R Swaminathan has laid down a strong foundation for rights of intersex children quoting references from ancient Indian epics as well as landmark apex court decisions.

However, even after one year of the judgement, a comprehensive human rights protection is still a distant reality for the intersex community in India. This is quite visible from the recent legislative attempts such as the Transgender Persons Act, 2019.

The law fails to address their particular needs and they are repeatedly confused with trans identities. Intersex people differ from trans-people as their status relates primarily to their biological makeup and is not gender related.

On the first anniversary of this momentous judgement, it is hoped that the vision laid out by the Madras High Court in this judgement is emulated as a nationwide model for India and is also adopted by countries across the world.

Intersex surgeries have been deemed as a form of torture by the United Nations and condemned by the World Health Organization, and several other human rights organisations. This is a brilliant opportunity for India to emerge as a leader in advancing intersex human rights.