Why Madras High Court Ban On Sex Change Surgery For Intersex Children Is Significant

On 22 April this year, the Madurai Bench of the Madras High Court came up with a landmark judgement on a petition by a couple seeking registration of their marriage on 31 October 2018. The couple were denied registration by Tamil Nadu authorities on the grounds that the bride was a transwoman.

While upholding the validity of the marriage, Justice G R Swaminathan, in his ruling, went a little further and banned sex reassignment or change surgery (SRS) for intersex children.

Justice Swaminathan’s ruling is not just a landmark one but also takes into consideration the problems faced by children who undergo such surgeries after being born as intersex.

In the case of intersex children, the doctors will not be able to determine if the new-born is a boy or girl as its sexual anatomy does not fit typical binary notion of male or female bodies. Globally, one such birth occurs for every 1,500 to 2,000 births.

Stating that children must be given time and space to find their true gender identity, the court raised concerns over parents rushing to have SRS performed.

Lauding the efforts of intersex activist Gopi Shankar in taking up the cause of such children, the judge said the response of the Health Ministry to Shankar’s petition to the National Human Rights Commission (NHRC) for stopping SRS made a strange reading.

The Health Ministry, in response to Shankar’s representation forwarded by NHRC, said that the SRS was done on a child only after thorough assessment and the consent of the parent/guardian.

Citing a ruling by Justice K Chandru of Madras High Court in 2007, Justice Swaminathan said the consent of a parent cannot be considered that of the child.

Quoting a Khalil Gibran verse, the judge said, “the children are not the children of their parents” and neither the father or mother can claim suzerainty over the child.

The court also pointed to the World Health Organization publication on “Sexual Health, Human Rights and the Law”, which called for deferment of intersex genital mutilation until the concerned person is old enough to make a decision for himself/herself.

Justice Swaminathan also recalled the Supreme Court’s order in the National Legal Services Authority case of 2014. In that case, the apex court said 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.

Article 39 (f) of the Constitution stipulates that children be given opportunities and facilities to develop in a healthy manner and in an environment of freedom and dignity, said the judge, directing the Tamil Nadu government to issue an order banning SRS.

The government of Malta’s “Gender Identify, Gender Expression and Sex Characteristics Act, 2015” was highlighted by the judge in the ruling. The Malta Act says gender expression is each person’s manifestation of their gender identity, including what is perceived by others.

Gender identity, on the other hand, is each person’s internal and individual experience of gender that may or may not correspond to the sex assigned at birth, including a personal sense of the body.

Justice Swaminathan had to bring up SRS in his judgement because the bride was born an intersex child but was assigned as female by the hospital authorities. In the school, the bride was given the name of a male. In the Aadhaar card, the bride was termed as a transgender.

The judge said that a person termed transgender could remain beyond the duality of male or female or opt to identify as a male or female. The choice was up to the concerned individual.

The ruling is significant since this can now ensure, if properly implemented, that an intersex child can determine its gender identity based on its internal and individual experience.

The judgement is also a huge boost for the LGBTIQ (lesbian, gay, bisexual, transgender, intersex and queer) community since no intersex child will be forced to be identified differently from what its internal feeling or experience would be.

According to Intersex Society of North America, a team of medical specialists came out with “optimum gender of rearing” system in the 1950s to treat intersex children. Called the Hopkins model, the system believed in assigning gender early in the case of an intersex child so that it would grow up to be a perfect girl or boy.

The Hopkin model has been termed “unethical” and the treatment was considered sexist because a child thought to be a girl was treated differently from another thought to be a boy.

The approach of the model, which the association says it still continues, was that doctors would try to preserve the fertility of the child considered to be a girl, while for the one considered a boy, the focus was on the genital part. The approach of the doctors was also arbitrary and illogical. For example, a boy born with a small genital organ is considered a girl and undergoes a sex-change surgery.

The problem with the birth of an intersex child is that this is more of a psycho-social problem and surgery is still considered as the exclusive treatment. Surgery is performed on the child only to set right the parental distress, which is not the appropriate method of care.

There is no evidence of an intersex child being anymore affected psychologically than the one on who SRS is performed. The Intersex Society says that there is evidence of children with inter-sex genitals not being affected psychologically at all.

There is enough evidence that intersex children on who SRS is performed have been affected, physically and psychologically. Also, parents who rush to get the SRS performed out of anxiety aren’t aware of the realities of the chances of gender identities emerging later.

The Human Rights Watch says that many of the procedures are done with the objective of making it easier for the children to grow up as normal kids and integrate with the society easily. But the results have often been catastrophic.

The supposed benefits of SRS have not been proved and also, there is no urgent consideration for such procedures on grounds of health. The procedures could be delayed until an intersex child is old enough to decide if it needs SRS, says the Human Rights Watch, reporting on such surgeries in the US.

Basically, intersex individuals are not rare — 1.7 per cent children born globally are intersex — but they are misunderstood.

What Justice Swaminathan’s judgement has done is to give an opportunity to an intersex child in evolving physically and psychologically than becoming a prisoner of circumstances. The child will choose its gender identity based on its internal experience than being forced to accept one by someone else.

In countries like the US, doctors have begun to advise the parents against SRS. One hopes that doctors in our country, mainly in the private sector, will take a leaf out of the book of their US counterparts.