Setting the clock back on intersex human rights

The Transgender Persons Bill does not distinguish between transgender and intersex persons

December 04, 2019 12:05 am | Updated 12:05 am IST

Representational image.

Representational image.

The Transgender Persons (Protection of Rights) Bill, 2019, has continued to trigger protests across the country. Without addressing the concerns of the LGBTQ community and considering any amendment to the draft Bill, the Rajya Sabha has passed the same version of the draft law that was passed by the Lok Sabha.

Journey of intersex human rights

In April 2019, the Madurai Bench of the Madras High Court delivered a historic judgment in Arunkumar v. The Inspector General of Registration . This judgment marks the beginning of a normative journey of intersex human rights in India. The court took up the issue of validity of consent given on behalf of intersex infants for undergoing sex selective surgeries. It held that the consent of the parent cannot be considered as the consent of the child. Hence, such surgeries should be prohibited. This is a momentous judgment as it recognises the consent rights of intersex children and the right to bodily integrity. The judgment declared a prohibition on sex selective surgeries on intersex children in Tamil Nadu. Complying with the directions of the court, Tamil Nadu banned sex reassignment surgeries on intersex infants and children. As the Transgender Bill also deals with issues related to human rights protection of intersex persons, it needs to be examined in light of the developments of intersex human rights.

However, the title of the Bill itself is exclusionary as it does not accommodate all persons whose legal protection it seeks to recognise. It is instructive for the legislature to appreciate the nuances when it comes to distinguishing between transgender and intersex persons. Transgenders have a different gender identity than what was assigned to them at birth, while intersex indicates diversity of gender based on biological characteristics at birth. There are also multiple variations in intersex itself. The Bill is not in alignment with the evolving international human rights framework. Parliament will be well-advised to consider changing the title of the Bill to Gender Identity, Gender Expression and Sex Characteristics (Protection of Rights) Bill, 2019. The Bill also conflates the condition of intersex persons with transgender persons. Barring a few overlaps, the legal and welfare needs of intersex persons are different from those of transgender persons.

Therefore, the definition should highlight this distinction between transgender persons and intersex persons enabling them to exercise the rights which they are entitled to. Some persons born or living with intersex traits can live with a non-binary identity or may choose to live as gender fluid persons. The Bill fails to account for these possibilities. Neither does it provide for the definition of terms such as gender identity, gender expression and sex characteristics.

The Bill doesn’t say much about discrimination against intersex persons. Intersex conditions are termed in derogatory terms even by medical professionals. To address this, the Bill should have included a provision directing medical professionals to ensure that intersex traits are not characterised as “disorders of sex development”. Intersex traits should not be considered as genetic defects/ disorders, and terms like ‘gender dysphoria’ should be used to characterise them.

Unnecessary medical procedures

As per court-based jurisprudence, medical procedures are not a necessity for self-identification. Still, the Union Health Ministry has admitted that medical procedure including sex reassignment surgeries are being performed on intersex children. The Ministry has given the justification that this is only done after a thorough assessment of the child, with the help of appropriate diagnostic tests and only after taking a written consent of the patient/guardian. When this response was presented before the Madras High Court in Arunkumar, the court slammed the Health Ministry for its poor understanding of consent rights and imposed a ban on the practice of sex reassignment surgeries on intersex infants/children. The Bill fails to protect intersex persons from unnecessary medical intervention.

World over, the discourse around gender and sexuality has evolved a great deal in the last decade. However, the current legislative discourse on this issue suffers from lack of foundational understanding. Intersex persons are particularly vulnerable and experience barriers in access to education, employment, marriage, etc. In its current form, the Bill turns back the clock on decades of positive change brought about by intersex activists.

Prashant Singh is an advocate at the Supreme Court of India

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