BACKGROUND:
The Health & Family Welfare Department for the State of Tamil Nadu issued a Government Order (GO) on 13th August, 2o19 banning sex reassignment surgeries (SRS) on intersex infants and children except in life-threatening situations.
The GO came as a directive in the judgment delivered by the Madras High Court in Arunkumar & Sreeja v. The Inspector General of Registration. While the petition was related to issues of marriage registration of trans persons, Justice G.R. Swaminathan took up the issue of forced SRS surgeries on intersex infants and children. The Court pointed out that according to the judgement in S. Amutha v. C. Manivanna Bhupathy consent of a parent cannot be considered as the consent of the child. Further, as held in NALSA, no one shall be forced to undergo medical procedures as a requirement for legal recognition of their gender identity.
So, the Court directed the Government of Tamil Nadu to issue a Government Order to ban SRS on intersex infants and children.
THE GOVERNMENT ORDER:
The Order defines intersex persons as follows:
“The term intersex refers to people born with physical and biological sex characteristics that are more diverse than stereotypical definitions for male and female bodies.”
The Order acknowledges that there is a huge diversity among intersex people with around 40 different recognized types of intersex variation. The Order also recognizes that intersex variations can be ‘picked up’ at any point in a persons life and is not always obvious at birth.
The Order relies on WHO’s Report on “Sexual Health Human Rights & Law” that details the violence and trauma inflicted on intersex persons due to unnecessary medical interventions that are forced upon them. Worst among these interventions is the so-called ‘sex normalizing’ procedures that are conducted on infants without their consent. The Order recognizes that such surgeries are rarely ever done to prevent life-threatening conditions, after considering alternatives.
The Order, relying on the above points and the opinions of experts as forwarded by the Director of Medical Education, pronounces a ban on SRS on intersex infants and children except on life-threatening situations.
The question of whether an exception should be made for a life-threatening situation shall be decided by the Government. This will be based on the recommendation of the Director of Medical Education who shall form a committee comprising:
- Pediatric Surgeon/Urologist
- Endocrinologist
- Social Worker/Psychology Worker/Intersex Activist
- A Government Representative in the rank of Under-Secretary to the Government or higher
The Order additionally states that it is the responsibility of the Director of Medical Education, Chennai to ensure that the above exception should not be misused in any way which could affect the ban.
You can read the complete Order here.