Gender and sex are distinct concepts; right to choose gender vested with individuals, not courts, says Kerala High Court.
Gender and sex are distinct concepts; right to choose gender vested with individuals, not courts: Kerala High Court. (Wikimedia Commons)
In a landmark decision that has far-reaching implications for intersex rights and medical practices, the Kerala High Court has ruled that sex-selective surgeries on intersex children can only be permitted based on the recommendation of a state-level multidisciplinary committee.
The judgement aims to strike a balance between medical intervention and safeguarding the rights of intersex individuals, while prompting a broader discussion on the ethical, medical, and legal considerations surrounding such surgeries.
Children born with variations in their sex characteristics — sometimes called intersex variations — are often subjected to “normalising” surgeries that are irreversible, risky, and medically unnecessary.
According to Ritash, Lead Consultant, ICT Initiatives, Solidarity Foundation and support member of Intersex Human Rights India (IHRI), who has been working with intersex individuals for the last seven years, “Unfortunately, there is no data from India, but globally, approximately 2.5 percent of people are now estimated have an intersex variant. Meaning, intersex variations are not uncommon, just often misunderstood as it is not misinformation but missing information.”
Intersex flag. (Supplied)
Ritash explains that intersex is a term used to describe individuals who are born with biological variations in their sex characteristics that do not fit typical definitions of male or female.
These variations can manifest in a variety of ways, including differences in chromosomes, hormones, internal reproductive organs, and external genitalia.
Intersex variants can be apparent at birth or may become evident during puberty or later in life. It’s important to note that intersex is a naturally occurring biological variation.
“Intersex people may identify as male, female, both, neither, or a different gender altogether. It’s important to respect each individual’s self-identified gender and to provide appropriate support and medical care that aligns with their needs and preferences,” Ritash tells South First.
The petition, led by advocate TP Sajid and five others, stated that the parents of a child born with ambiguous genitalia sought permission to conduct a genital reconstructive surgery with the aim of raising their child as a female.
The gender was decided by the parents, based on the karyotype report showing 46XX chromosomes, which is indicative of the child being a female, chromosomally.
The petition stated that the “child is seven years old and has a uterus, ovaries, and an oversized clitoris”. The petition also mentions that the child has a medical condition certified as “Congenital Adrenal Hyperplasia” and is undergoing treatment and doctors have advised reconstructive surgery.
The court was approached as no doctors agreed to perform the surgery without the consent of the court.
The advocate appearing for the petitioners contended that surgery is necessary as the “child has started noticing the distinctive features. The possbile social ostracisation and the medical conditon of the child are projected as reasons for granting permission,” advocate TP Sajid petitioned.
Meanwhile, he also submitted that parents are best suited to decide the future of their child and “delaying the decision will cause undue trauma to the child and hardship to the family”.
On Monday, 7 August, the Kerala High Court denied permission for a sex-selective surgery on a seven-year-old intersex child. The court ordered that this kind of surgery be permitted only if a state-level multidisciplinary committee approves that it is essential to save the child’s life.
The court directed the state to constitute such a committee consisting of a paediatrician/paediatric endocrinologist, paediatric surgeon, and a child psychiatrist/child psychologist.
Justice VG Arun declined to direct surgery to the writ petitioner’s child.
The committee has been instructed to examine the child for two months and decide if there is any life-threatening situation as a result of having ambiguous genitalia. The court stated that if that is found, permission can be granted to carry out the surgery.
While applauding the court’s judgement, Ritash notes in that some key specialists are missing from the committee.
“We need a bioethicist, a person who has studied and teaches medical ethics. There should also be an adult psychiatrist, senior paediatric nursing specialist, gynaecologist, and a super specialist adolescent and paediatric endocrinologist,” Ritash says.
“What’s also missing are child rights defenders, as well as one or two intersex activists/individuals who are tuned into child rights and human rights. If possible, it is good to have a parent of an intersex child, if there is anyone willing to be a part of the committee. I went through the Tamil Nadu order and the Madurai Bench order and they have better recommendations regarding the committee,” Ritash adds.
The government representative, PS Appu, stated that following the court’s directive, a medical board assessed the child’s condition. The board recommended the establishment of a state-level multidisciplinary committee, capable of making well-informed and legally-sound decisions in such circumstances.
Representational image. (Wikimedia Commons)
The court had further designated advocate Indulekha Joseph as the Amicus Curiae in the case. She subsequently presented a comprehensive report after consulting experts in the relevant medical field.
The central issue before the court was to determine the parents’ authority to decide their minor child’s gender, even in the absence of the child’s consent and awareness of their own orientation.
The court stated, “On careful analysis of the relevant factors and consideration of the rights of the parents and the child, I find that grant of permission for conducting genital reconstructive surgery would impinge the rights guaranteed under Articles 14, 19, and 21 of the Constitution of India and conduct of the surgery without consent would violate the child’s dignity and privacy. Granting such permission may also result in severe emotional and psychological issues if, on attaining adolescence, the child develops orientation towards the gender, other than the one to which the child was converted through surgical intervention,” the court observed.
The court added, “No doubt there can be such intervention, if so recommended by a duly constituted medical board.”
Appreciating the judgement by the Kerala High Court, Dr Aqsa Shaikh, a transgender activist and Assistant Professor of Community Medicine at Hamdard Institute of Medical Sciences and Research (HIMSR), tells South First, “This is a welcome judgement as it really looks into the long-pending demand for autonomy and decision-making whenever it comes to any kind of surgical intervention pertaining to intersex people, especially in the case of intersex children and adolescents who cannot consent to these procedures.”
It is even more important for young children who do not even understand what is being done to their bodies, she adds.
Dr Aqsa Shaikh, a transgender doctor also Associate Professor at the Department of Community Medicine at Hamdard Institute of Medial Sciences and Research. (Supplied)
Ritash argues that unless the child has a medical condition that is deemed life-threatening, the surgery should not be undertaken without careful consideration of the individual’s rights and best interests.
A multidisciplinary approach, including input from endocrinologists, gynaecologists, paediatric surgeons, and psychologists, is essential to ensure holistic care.
Appreciating the court’s initiative to create a multidisciplinary board, Ritash says, “It is absolutely important that this board is both sensitised and informed.”
However, they also warn that at this point in time, the board may decide that it is best to perform the surgery on the child, but later there may be other complications.
“From what I have seen in the last six years of my association and working with intersex individuals, the surgery never stops at one. It can even go up to three or four follow-up surgeries,” Ritash says.
They add that there must not only be an explanation of problems and a list of possible prognosis, but also a list of whom to approach and what steps to take if something goes wrong post-surgery, even years or months later.
Surgery for trans persons might be a gender reaffirming one, but for intersex individuals, it is sex assignment surgery, explains Ritash.
Meanwhile creating awareness and sensitising the family members and public about intersex individuals is absolutely important, they add.
Ritash also adds that there are complications like orthopaedic, ortho-neurological, urination issues, mental health complications, metabolic issues, gynaecological issues, bleeding complications, and even defecation issues. Also, the diet of some of those who undergo the surgery is highly restricted.
“This must be properly explained to the parents. Healthcare professionals, first of all, should take onus when it comes to complications. Also, with all due respect to them, many of the doctors are not trained enough to handle such surgeries. They must acknowledge it and not jump into performing surgeries they are not well aware of,” they add.
Citing a few cases, Ritash says that despite making conscious choices, many intersex individuals have regretted the decision to opt for surgical procedures.
One intersex individual, in their early 20s, went for surgery as an informed adult, but within about four years, the person has undergone three surgeries and is now waiting for the fourth one.
“This person went to the best-of-the-best doctor where the hospital is known for gender affirmation surgeries on trans people. Still, the person is struggling. They can’t walk properly, they are unable to sit, they are going through mental health issues, feel suicidal, etc,” Ritash explains.
In another case, neurological issues began due to extreme stress post-surgery. There were urination issues and gynaecological bleeding etc. One person even experienced severe fluctuation in glucose levels and turned highly diabetic. The person is only in their late 30s.
Unfortunately, in India, there is no data recorded of children born with Differences of Sex Development (DSD), says Ritash. They say that there are very few hospitals in the country that have now started to record some data around this.
In the support network group Ritash works with, there are 25 intersex individuals and Ritash says that there are many more who are still not ready to come out in public. “It is extremely stigmatising for them to come out and be part of any such communities,” Ritash adds.
They say that it is absolutely important to first of all have a database on DSD so that policies and laws are formed around this to know exactly in what situations medical interventions can be done on a child born with DSD.
Meanwhile, Ritash wonders if gender affirming surgeries have been happening on intersex individuals, children mainly, in rural parts of Karnataka, without bringing it under the legal purview.
“I wouldn’t be surprised if such cases are occurring. There was one family I was asked to speak to by a mental health professional. The family already had two girls and hence, wanted this intersex child to be a boy. The family informed me that the doctors are ready to perform the surgery,” Ritash recalls.
Many times, the surgeries are sought due to societal pressure and stigma faced by the families.
Guidelines and SOPs are required. (Creative Commons)
Arguing on the same lines, Dr Aqsa Shaikh states, “I think the court has taken a great initiative by creating a multidisciplinary board but what’s also needed are guidelines and SOPs so that we have guidelines on what are those life-threatening conditions that mandate surgeries and what interventions are mandated in those situations. This would be helpful so that the medical board would not need to reinvent the wheel every time. It also helps healthcare professionals in arriving at the decision in particular cases.”
Dr Shaikh also appreciates the court’s “very important observation that just having a particular chromosome doesn’t mean that the person’s gender is also the same”.
“We need to differentiate between the sex and the gender as we do not know what the gender identity of this child will be. Therefore, the approach of the court to let the decision be taken by the subject experts is a very welcome move,” she adds.
However, she notes: “Instead of this standalone judgement coming from one court, the government needs to look into intersex variations and needs to create a central law to prohibit traumatising surgeries that have been happening across India.
“It needs to also put in place guidelines for intersex variants management, indications on different kinds of surgeries, and who can do them.”
The experts also pressed for the need to provide administrative support.
“Birth certificates need to recognise that there are people other than boys/girls. School admission is another issue that often crops up when intersex children have to be admitted. Medical records have to be suitably modified.”
Also, a comprehensive approach that takes into consideration the medical guidelines and interventions, legal reforms, and social acceptance for intersex individuals is much needed, Dr Shaikh concludes.
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