A judgment made by the Madras High Court and an order issued by the government of Tamil Nadu aims to protect the freedom of intersex infants and children to choose their gender identity.
The Court Verdict:
- A trans-woman and her husband had approached the Madurai Bench of the Madras High Court with a plea to instruct authorities to register their marriage.
- In April, 2019, the Bench allowed the plea, but went on to ban sex reassignment surgeries on intersex infants and children.
- The court observed that the consent of the parent cannot be considered the consent of the child.
- The Bench had also directed the Tamil Nadu government to file a compliance report.
- Earlier, Srishti Madurai, a student movement in Tamil Nadu had approached the National Human Rights Commission on the subject.
The Government Order:
- After the court judgment, the Tamil Nadu government passed an order banning sex normalization surgeries in intersex children and infants.
- Tamil Nadu’s order comes as the second such move made by any Government 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.
- The government order specifies that such surgeries can only be performed in case there is a life-threatening situation.
- Such a situation will be certified by a team that includes pediatric surgeons/urologists, endocrinologists, a social worker/intersex activist and a government representative.
What Does Intersex Mean?
- Intersex is the term used to refer to people born with physical and biological characteristics that are more diverse than stereotypical definitions of male or female bodies.
- There are differences between gender, sexual identity and sexual orientation.
- Gender is assigned at birth based on the anatomy (male or female sexual organs).
- Sexual identity is what one sees oneself as.
- Sexual orientation is identified based on the sex a person is attracted to.
- Genetically, the male is invested with XY chromosomes and the female, XX.
- In intersex there are at least 40 different variations.
- Sexual development is a complex process.
- 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.
- Hundreds of genes have been identified, in which mutations or changes may lead to a ‘different kind of development’ impacting the gender of the fetus.
- There are several metabolic developments involved in these pathways. All of these differences can’t be detected at the time of birth.
- Doctors and parents identify it only when the baby exhibits ambiguities in anatomical features. Ex.: the presence of both male and female genitalia, two different genders for internal and external reproductive organs, etc.
Why are Sex Selective Surgeries Performed on Infants?
- When these differences are identified at birth, parents are eager to resolve the question of the gender of the baby and pick a gender.
- Surgery to correct the genitalia is then performed on the child.
- They are ignorant of the fact that the child will have to pick a sexual identity in the process of growing up.
- The surgery could lead to physical trauma, emotional turmoil and problems arising out of confusion about identity.
- The State’s commitment to its intersex babies would be evaluated by the effectiveness of implementing the order.
- Awareness is necessary even for the medical community to recognize the possibilities of gender ambiguity.
- Parents need to undergo counselling in order to accept their children as they are.
- Infants born with apparent intersex features should be given the freedom to choose their gender identity.