The Delhi Commission for Protection of Child Rights (DCPCR) recommended the Delhi government on January 13, 2021 to ban gender-affirming surgeries performed on intersex infants and children. Up until now, gender-affirming surgeries on intersex infants and children continue to be legal in India and most other countries, as long as a parent or legal guardian provides consent for them.

The DCPCR made this recommendation to the government in response to a plea filed before it by Dr Satendra Singh, Dr Aqsa Shaikh, and Dr Sanjay Sharma. The plea stated that intersex people are treated as people with disabilities, which results in medically unnecessary surgical interventions which can have a long-term impact and can result in life-long medical treatments. Many of these surgeries are performed without fully informed, free consent.

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According to a report by The Hindu, the Commission, before coming to a decision, requested submissions from the Delhi Medical Council, which was of the opinion that these interventions should be delayed until intersex children are old enough to provide fully informed, meaningful consent; Departments of Health and Family Welfare; Government of NCT of Delhi; Department of Social Welfare; and other experts in the field. Human Rights activist, Anjali Gopalan, who acted as advisor to the commission said that these interventions are violative of the fundamental right to bodily integrity and autonomy.

The Commission’s order to the government read: “After careful deliberations, the commission is of the considered opinion that the Government of Delhi should declare a ban on medically unnecessary, sex-selective surgeries on intersex infants and children except in cases of life-threatening situations and advises the government accordingly.”

The DCPCR order states that its decision was motivated by the Madras High Court’s 2019 verdict in Arunkumar v. The Inspector General of Registration, a judgement hailed as a turning point in intersex human rights in India. The Madras HC said that the consent of the parent to operate on intersex infants cannot be considered in lieu of the consent of the child. Upholding the right to bodily integrity, the court had said such surgeries performed with the consent of parents are to be prohibited in Tamil Nadu.

Tamil Nadu has since banned gender-affirming surgeries on infants and children, following the court’s directives. Further, in the order that the Tamil Nadu government stated after Madras High Court’s verdict, a glaring problem is that it conflates transgender and intersex identities. Intersex identity is often equated with transgender identity in India, which leads to the invisibilisation of trans men and women and struggles unique to them. Further, people born intersex could identify as non-binary or genderfluid, so referring to them as trans erases and disregards their chosen gender identity.

A BMJ (British Medical Journal) editorial published in 2015 found that many parents who consented to these procedures being performed on their babies were influenced by medicalised information presented before them and gave their consent while being uninformed of the implications of the choice they were making.

When asked whether the Madras HC’s judgement inspired them to file this plea, Dr Satendra Singh, a disability rights activist, who was one of the petitioners said the following while speaking to FII, “It was that judgement, as well as the concluding observation by the Committee for the Rights of Persons with Disabilities at the UN. Two hospitals in the United States in 2020 took the lead by banning unnecessary sex-selective surgeries but we didn’t see any such awareness in India. All three of us, the petitioners in this matter, are doctors who have seen these issues closely and understand the need for sensitivity and change. Also, our argument included inputs from two intersex organisations – Sristhi Madurai and Intersex Human Rights India, both of whom submitted their written comments. Gopi Shankar Madurai, the petitioner in the plea before the Madras HC, was part of the hearings, too.”

When asked what changes, apart from legislative ones, would Dr Singh recommend, he said, “Awareness, especially among health professionals is necessary. They largely view diversity in traits from the perspective of the medical model of disability (deficit-based perspective). The time has come to embrace a human rights perspective in patient care.”

These interventions also pose a grave human rights issue. Individuals should have the right to self-determination of gender and feminising and masculinising surgeries performed on infants and children who cannot give their consent is a deprivation of this right and an imposition of gender binaries.

Another issue is that of the pathologisation of intersex traits. The Council of Europe firmly believes that the unnecessary normalisation of such medically unnecessary treatments can lead to the pathologisation of the slightest variations in sex characteristics. These surgeries are often referred to as ‘normalization’ surgeries, which in itself highlights the increasing pathologization of the variation in sex characteristics.

Dr Aqsa Shaikh, one of the other co-petitioners said, “While some intersex conditions may be potentially life-threatening, most are not. However, in an urge to fit the child into the binary of male and female, the parents and doctors often venture into sex ‘normalising’ surgeries. These surgeries can scar the child’s body, mind, and soul. Physical harm may be done that can lead to lifelong health issues, like urinary problems. Also, since we cannot determine the gender at birth, such surgeries may lead to induced gender incongruence. When the child grows up and realises this mutilating procedure was performed on them, it can lead to lifelong trauma.”

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Agreeing with what the BMJ stated about most of these procedures being experimental at best in its 2015 editorial, Dr Shaikh added, “… Most of these surgeries are done to make the genitalia appear like that of binary sexes as considered appropriate by the surgeons. As the child grows, the results could be drastically different. Since it’s a select group and services provided are usually discreet, there is hardly any scientific deliberation in surgical techniques.”

In 2006, a group of clinicians met in Chicago and adopted the term Disorders of Sex Development to identity intersex traits, a move that was widely criticised for attempting to reinstitutionalise medical authority over intersex bodies. Telling Feminism In India about how linguistics plays a role in the pathologisation of intersex traits, Dr Shaikh explained: ‘Intersex Persons is now a widely accepted and used term to address persons with DSD. In order to linguistically depathologise intersex conditions – many of which are plain variations of normal sexual characteristics, rather than a defect or an abnormality – the term Differences in Sex Development is now used.’

Until 2015 these surgeries were legal world over. In April 2015, Malta became the first country in the world to ban all non-consensual sex reassignment modifications. But despite the ban, ILGA-Europe’s report found that gender-affirming surgeries continue to be performed on intersex babies.

Legislation in and of itself isn’t effective, but it is the first step. We have a very long way to go when it comes to protecting the rights of intersex persons; informed legislation, along with community efforts and awareness can bring about monumental changes. 1 in 1000 babies are born intersex and they face increased discrimination and violence, and it is time that we correct that. And that can begin with respecting each person’s self-determination of gender, bodily integrity, and physical autonomy.

Featured Image Source: The Logical Indian