The Kerala High Court has directed the State government to issue within three months an order regulating sex selective surgeries on intersex infants and children.
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Justice V.G. Arun also ordered that until the regulation was put in place, sex selective surgery shall be permitted only based on the opinion of a State-level multidisciplinary committee that the surgery was essential to save the life of such child/infant.
The court passed the directives recently while disposing of a writ petition filed by the parents of a child born with ambiguous genitalia (congenital adrinal hyperplasia) seeking permission of the court to conduct a genital reconstructive surgery on the child.
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The court directed the government to constitute a State-level multidisciplinary committee consisting of a paediatrician/ paediatric endocrinologist, paediatric surgeon and child psychiatrist/ child psychologist to decide whether the child was facing any life threatening situation by reason of the ambiguous genitalia. If so, permission could be granted for carrying out the surgery.
The court observed that grant of permission for conducting genital reconstructive surgery would impinge the rights guaranteed under Articles 14 (equality before the law) 19 (freedom of speech) and 21 (protection of life and liberty) of the Constitution and conduct of the surgery without consent would violate the child’s dignity and privacy.
Granting such permission may also result in severe emotional and psychological issues if, on attaining adolescence, the child developed orientation towards the gender, other than the one to which the child was converted through surgical intervention.
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The court also pointed out that the definition of transgender in Section 2(k) of the Transgender Persons (Protection of Rights) Act took in persons with intersex variations also, thereby making the protections under the Act available to such persons. Section 4(2) of the Act guaranteed the right to have a self perceived gender identity. Thus it was beyond cavil that the right to choose gender was vested with the individual concerned and no one else, not even the court.
The court added that if democracy was based on recognition of the individuality and dignity of man, the right of a human being to choose his/her sex or gender identity, which was one of the most basic aspects of self-determination, dignity and freedom, had to be recognised.
Conversely, intervention with an individual’s right to choose sex or identity would definitely be an intrusion into that person’s privacy and an affront to his/her dignity and freedom.