The story so far: A short while before the first anniversary of the verdict that invalidated Section 377 (September 6, 2018) to jubilant celebrations among the LGBTQI community, in a nondescript courtroom in Madurai at the Bench of the Madras High Court, equally significant history was written. In April this year, Justice G.R. Swaminathan, did a deep dive into the complex and nuanced question of gender identity and sex, to emerge with a judgment that turned the ingrained ideas of gender or sex as a binary — male and female — on its head. He expanded the scope of a petition filed by a transwoman and her husband, making a plea to instruct authorities to register their marriage. While allowing this plea, the judge went on to ban sex reassignment surgeries on intersex infants and children, directing the government to file a compliance report. The Tamil Nadu government passed an order on August 13 banning sex normalisation surgeries in intersex children and infants, except in life threatening circumstances.
What does intersex mean?
Intersex refers to people born with physical and biological characteristics that are more diverse than stereotypical definitions of male or female bodies. Gopi Shankar, a Madurai-based activist/anchor of the student movement Srishti Madurai, whose petition to the National Human Rights Commission on the subject the court leaned heavily on, says there are differences between gender, sexual identity and sexual orientation. While gender identity is assigned at birth based on the anatomy (male or female sexual organs, both internal and external), sexual identity is what one sees oneself as, and sexual orientation is the sex a person is attracted to. Mr. Gopi claims that every year there are 10,000 babies born with intersex conditions, when it is difficult to classify the reproductive organs as male or female. Genetically, the male is invested with XY chromosomes and the female, XX. In intersex there are at least 40 different variations. But this is key: there is no one intersex experience.
A senior medical geneticist from Hyderabad, Anuradha Udumudi, who was consulted while framing the government order, explains that sexual development is a complex process.
In the last decade with huge leaps in the field of medical genetics, it is now apparent to scientists that gender assignment is not merely the function of the X and Y chromosomes. She says hundreds of genes have been identified, mutations or changes in them lead to a ‘different kind of development’, impacting the gender of the foetus. There are several metabolic developments involved in these pathways. Significantly, not all of these differences can be detected at the time of birth. Doctors and parents only have their radar up when the baby exhibits ambiguities in gross anatomical features, for instance, the presence of both male and female genitalia, or two different genders for internal and external reproductive organs.
Why are sex selective surgeries performed on infants?
When these differences are apparent at birth, parents are eager to resolve the question of the gender of the baby and pick a gender, possibly ignorant of the fact that the child will have to pick a sexual identity in the process of growing up. Surgery to correct the genitalia is then performed on the child which could lead to physical trauma, emotional turmoil and problems arising out of confusion about identity.
The court observed that the consent of the parent cannot be considered the consent of the child. The government order specifies that such surgeries can only be performed in case there is a life-threatening situation. It adds that this call would be made by a team that includes paediatric surgeons/urologists, endocrinologists, a social worker/intersex activist and a government representative.
What happens next?
Tamil Nadu’s order comes as the second such move made by any State on gender and sexual identity; the Parliament of the island of Malta adopted the Gender Identity, Gender Expression and Sex Characteristics Act in April 2015. There is no room for complacence, though. If the proof of the pudding is in the eating, the mark of the State’s commitment to its intersex babies would be in how well the order is implemented.
Dr. Udumudi says, a great deal of awareness is necessary even for the medical community to recognise the possibilities of gender ambiguity. Parents will have to be counselled well into accepting their children as they are. Mr. Gopi adds, “Readymade answers are not available, parents do need to wait. Give your baby space, allow gender identity to be fluid, if it is indeed so, and let them choose.” After all, the binaries are not everything.