In a major decision propelled by a Madras High Court order, the State government has banned performance of sex reassignment surgeries on intersex infants and children, except to overcome life-threatening situations. The decision has come as a shot in the arm for intersex activists who had been pleading with the Central and State governments for long against imposition of the parents’ will on innocent children and infants.
Complying with a directive issued by Justice G.R. Swaminathan on April 22, the Health and Family Welfare Department issued a Government Order instructing the Director of Medical Education to ensure that the exception provided to overcome life-threatening situations does not get misused and thereby affect the implementation of the ban being imposed after due consultation with experts on the subject.
The G.O. requires the DME to constitute a four-member committee consisting of a paediatric surgeon/urologist, endocrinologist, social worker/psychology worker/intersex activist and a government representative not below the rank of undersecretary to assess individual cases and come to a conclusion as to whether they fall under the ambit of a life-threatening situation requiring compulsory sex reassignment surgery.
“The term intersex refers to people born with physical and biological sex characteristics that are more diverse than stereotypical definitions for male or female bodies. With around 40 different recognised types of intersex variation, there is a huge diversity among intersex people to be acknowledged. Intersex variations can be picked up at any time during life. They are not always obvious from birth. There is no ‘one’ intersex experience,” the G.O. read.
It also recognised that a major concern for intersex people was that so-called sex normalising procedures such as surgeries and hormonal interventions were often performed during their infancy or childhood to make them conform to gendered physical norms. As a result, children are subjected to medically unnecessary and often irreversible interventions that may have lifelong consequences on their physical and mental health.
Empathising with such children, Justice Swaminathan had pointed out that a World Health Organisation report titled ‘Sexual Health, Human Rights and the Law’ called for deferment of intersex genital mutilation until the intersex persons were old enough to make decisions for themselves. He had made the observations in his much-celebrated decision upholding the legality of a marriage between a Hindu man and a transwoman professing the same faith.
He had also said that the consent of the parent for sex reassignment surgery could not be considered as the consent of the child and referred to a judgment delivered by Justice K. Chandru (since retired), wherein it was observed that “neither the father nor the mother can claim suzerainty over the child and, in the ultimate analysis, the children are not the children of their parents.”
In the same judgment, Justice Swaminathan had also stressed upon the need for the government to launch a sustained awareness campaign to encourage parents to feel that birth of an intersex child was not a matter of embarrassment or shame. “Any intersex child is entitled to and must stay within the folds of its family. The running away from the family to the margins and beyond is a fatal journey that must be arrested,” he had said.