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BRIEFING PAPER: REGULATION OF SEX SELECTIVE SURGERIES ON INTERSEX INFANTS/CHILDREN – Prashant Singh (Advocate, Supreme Court of India)

Background
On 22nd April 2019, the Hon’ble High Court of Madras delivered a momentous judgement banning the practise of Sex Selective Surgeries on Intersex infants/children. The judgment is regarded as historic as it was the first instance when the judiciary recognised the right of intersex persons with respect to bodily integrity.  
To ensure enforcement of the judgment, the Court directed the Tamil Nadu government to pass a ‘Government Order’ (G.O.) to ensure the prohibition of such surgeries.
The Court also directed the Health and Family Welfare department of the government to file a compliance report regarding the enforcement of the ban within eight weeks from the date of receipt of the judgment.
With a view to assist the government in drafting the G.O., a policy briefing meeting was organised by Srishti Madurai in association with Intersex Asia on 5th July 2019 in Chennai. This briefing paper has been prepared to provide an overview of the whole issue and also record the concerns raised by different stakeholders in the meeting.
Outline
This briefing paper has been divided into two parts:
·         Part-I will provide a brief summary of the Madras High Court judgment.
·         Part-II will give an overview of the deliberations in the meeting.
·         Part-III records the resolution adopted at the meeting and proposed action plan
·         Part-IV contains a proposal for organising a national level stakeholders’ consultation on this issue.
PART I- SCOPE OF THE JUDGMENT OF MADRAS HIGH COURT
Arunkumar and Sreeja v. The Inspector General of Registration and Ors.
Issues:
Broadly, the judgment is centred around two issues:
1.   Validity of the decision of refusal to register the marriage between petitioners
This case was borne out of an appeal made by petitioners-Arunkumar and Sreeja (transwoman) against the decision of the Registrar and Inspector General of Registration for refusing to register their marriage. The Court had to examine the validity of the refusal as per the mandate of the Hindu Marriage Act, 1955.
2.   Validity of practice of forced sex selective operations on intersex infants.
The Court also took up the practice of forced sex selection surgeries while recognising the work of Gopi Shankar. The Court was examining the validity of consent given on behalf of intersex infants for undergoing such surgeries in light of the judgment given by the Supreme Court in NALSA v. Union of India.
Ruling:
1.   Validity of the decision of refusal to register the marriage between petitioners.
In the view of the court, the marriage was valid as per Section 5 of the Hindu Marriage Act, 1955 and hence, the Registrar of Marriage was bound to register the same. The respondents had argued that memorandum of registration presented by petitioners did not fulfil the statutory requirement under Section 5 of the Hindu Marriage Act, 1955. Therefore, the Registrar was well within his power to refuse the registration of marriage.
The Counsels on behalf of the government gave the following reasoning in support of their decision to disallow registration of marriage.
[A]s per Section 5 of the Hindu Marriage Act, the bridegroom must have completed the age of 21 years while the bride must have completed the age of 18 years at the time of marriage. To understand the meaning of expression “bride’, in the order impugned in this writ petition, Oxford Advance Learner’s Dictionary of Current English was referred to. The term “Bride” can only refer to a “Woman on her wedding day”. In the case on hand, the second petitioner Srija is a transgender and not a woman. Thus, the statutory requirement set out in Section 5 of the Hindu Marriage Act, 1955 has not been fulfilled.
The Court rejected these arguments and made the following observations.
Both the petitioners herein profess Hindu Religion. Their right to practice Hindu Religion is recognised under Article 25 of the Constitution of India. The Hindu Marriage Act is a personal law of the Hindus. When the right of the transgender persons to marry has been upheld by the Hon’ble Supreme Court, in the very nature of things, they cannot be kept out of the purview of the Hindu Marriage Act. One can have a civil marriage. One can also have a sacramental marriage. The petitioners’ marriage was solemnized in a temple. Therefore, their fundamental right under Article 25 has also been infringed in this case.
The Court held that the decision of refusal to register the marriage between the petitioners was discriminatory on account of sexual orientation or gender identity and therefore, it violated Article 14 of the Constitution of India which guarantees equality before law and equal protection of law.
While arriving at this conclusion, Justice Swaminathan referred to the ruling in NALSA v. Union of India wherein the Supreme Court upheld the transgender persons’ right to decide their self-identified gender. The central and State governments were directed to grant legal recognition of their gender identity such as male, female or third gender.
In addition to the, the court has also referred to the judgment in the case of Justice K.S. Puttaswamy v. Union of India. In this judgment, the Court made the following observations:

Indeed, the Court has noted it would be contradictory to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society.
In a judgment laced with references from ancient Indian epics as well as landmark apex court decisions, the Madras High Court conclusively upheld the right of the
2.   Validity of practice of forced sex selective operations on intersex infants.
With respect to the validity of such operations, the judgment recalled the mandate of the NALSA judgment which declared the following:

no one shall be forced to undergo medical procedures, including SRS, sterilisation or hormonal therapy, as a requirement for legal recognition of their gender identity.
Recognising the mandate of the above-mentioned ruling of the Apex Court, the judgment directed the Government of Tamil Nadu to issue a Government Order enshrining the aforesaid mandate so as to effectively ban sex reassignment surgeries on intersex infants and children. Further, the Madras High Court also directed the Health and Family Welfare Department to file a compliance report before the Registry within a period of eight weeks from the date of receipt of a copy of this order.

The judgment has also acknowledged the report of World Health Organisation titled- ‘Sexual Health, Human Rights and the Law’ which has called for calls for a deferment of intersex genital mutilation (IGM) until the intersex persons are old enough to make decisions for themselves.

With respect to the stigma and public awareness on this issue, the Court made the following remarkable observation:

Any intersex child is entitled to and must stay within the folds of its family. The running away from the family to the margins and beyond is a fatal journey that must be arrested. Time has come when they are brought back from the margins into the mainstream. This is because even though the transgender community is having its own social institutions, the stories we hear are horrendous. The parents must be encouraged to feel that the birth of an intersex child is not a matter of embarrassment or shame. It lies in the hands of the Government to launch a sustained awareness campaign in this regard.
For the foregoing reasons, the judgment given by the Madurai bench of the Madras High Court is being hailed as a path-breaking judgment.


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PART II- DELIBERATIONS OF THE POLICY BRIEFING MEETING
Scholars and practitioners from legal and medical arena were invited to deliberate on the Draft G.O. prepared by Gopi Shankar (recognised in the judgment for his work on intersex human rights) of Srishti Madurai. The list of speakers included:

·  Dr. Beela Rajesh, I.A.S, Secretary, Health and Family Welfare Department Government of Tamil Nadu.

       Dr. S. Ramesh, President, Indian Association of Paediatric Surgeons (ASI)

·         Dr. Anuradha Udumudi, Co-founder, GeneTech – Renowned Genetic Scientist

·         Dr. Darez Ahmed I.A.S – Mission Director, State Rural Health Mission

In addition to the above, following persons also participated in the discussion.
·         Dr. Jagan Mohan, Chief Plastic Surgeon (Head of Transgender Person’s Clinic), Government of Tamil Nadu.
·         Dr. Mohan Kumar, Associate Professor, Institute of Child Health
·         Dr. Prakash Agarwal, Professor of Pediatric Surgery at Sri Ramachandra Medical College and Hon. Secretary, Indian Association of Pediatric Surgeons
·         Dr. Ramesh Babu, Chairman, Association of Pediatric Urology
·         Sh. Ravi Kumar, Sub-editor, Tamil The Hindu
·         Dr. Srinivas Udumudi, Co-founder, GeneTech
·         Dr. Xavier, Nodal Officer, Directorate of Medical Education
Dr. R. Velmurugan, Senior Professor of Paediatric Surgery at Institute of Child Health.

Evening Meeting

·         Esan Regmi – Co Chair of Intersex Asia
·         Abhijith Jose- Nodal Officer, Tamil Nadu Rural Health Mission. NHM.
·         Prashant Singh – Advocate, Supreme Court of India, New Delhi.

Broad Outline of the Draft G.O.
The draft G.O. which was the focus of the deliberations in the meeting is divided into 11 parts:
             I.        Title and Statement of Object and Reasons
           II.        Definitions of key phrases
          III.        Recognition of fundamental right to dignity
         IV.        Right to bodily integrity and physical autonomy
           V.        Treatment Protocol
         VI.        Power of amendment of the G.O.
        VII.        Health Services
      VIII.        Applicability of the G.O. on the operation of other laws, rules or policies
         IX.        Fixing the responsibility of the government to spread awareness
           X.        Code of conduct for public officials dealing with cases related to G.O.
         XI.        Format of the Declaratory Public Deed

Salient points made by Gopi Shankar, Srishti Madurai
a.   Background:
                                         i.    Definition of Intersex
                                       ii.    Ignorance of medical ethics
                                      iii.    Impact of sex determination operations on infant children
                                      iv.    Selection of Gender Identity- an issue of individual choice
                                        v.    Preference of Intersex persons to live as Gender-queer person (non-binary)
                                      vi.    Difference between sex identity, sex determination, gender identity and sex characteristics law (SOGIESC rights)- term popularized by ILGA
b.   Purpose:
                                         i.    Constructive policy for proposal to enact a nation-wide legislation
                                       ii.    Distinction between Transgender (Gender identity) and Intersex (Sex identity)
                                      iii.    Discrimination in sports against women
1.   The case of  Santhi Soundarajan and Dutee Chand (Hyperendrogenism)
2.   IAAF’s rule and CAS’s judgment
                                      iv.    Need for an acceptable medical nomenclature on basis of human rights

Salient points made by Dr. Ramesh S, Indian Association of Paediatrics Surgeons

a.    Considerations of Clinician
                                     i.        Clinical Impression
                                   ii.        Lab. Tests
                                  iii.        Immediate Threat
                                  iv.        Intermediate issues
                                    v.        Long Term follow-up
                                  vi.        Parental Preference
                                 vii.         
b.   Transition care-biggest concern of pediatrics
c.    Social support
d.   All medical colleges- Must have multi-disciplinary process
e.    Ethics questions:
                                         i.        Is it ethical to withhold treatment for ALL Intersex conditions to protect the interest of a small percentage with Gender Dysphoria?
                                       ii.        How to handle Parental Expectations?
                                      iii.        What are the social implications?
f.     Concerns of the Medical Profession
                                     i.        Grouping & Classification of DSD is for academic purposes & not for legal purposes
                                   ii.        Strong need to separate Embryologic / Chemical aberrations from Gender Dyspohoria
                                  iii.        Difference between Gender Assignment & Gender Re-assignment
                                  iv.        Difference between Genuine Medical Professionals & Unscrupulous Quacks
                                    v.        Medical & Surgical Emergencies need to be addressed soon
                                  vi.        Continuing Follow-up to support the child
                                 vii.        Transition care when they grow up
                               viii.        Uncommon diseases being handled only by experienced staff and major institutions
                                  ix.        Inappropriate Secondary Sexual Characteristics
                                    x.        Cancer in the retained Gonad
                                  xi.        Knowing the Gender of the Child is a social Emergency
                                xii.        Gender Plays a Significant Role in the Society
                               xiii.        What about Gender Related Privileges
g.    Recommendations
                                         i.        One Apex Authority- Clinical persons, NGOs, Medico-social expert, Legal, Govt. reps.
                                       ii.        Standard treatment guidelines- which do not require scrutiny
                                      iii.        Periodic review of policies
                                      iv.        Complicated cases only operated by senior clinical persons
                                        v.        Registered multi-disciplinary clinics across the country
                                      vi.        Regular follow-up
                                     vii.        Social support
                                   viii.        Method to identify quack professional
h.   Definition to define medically unnecessary
i.     Need to have a helpline
Salient points made by Dr. Anuradha Udumudi

·         Develop a uniform nomenclature: Medical professionals, scientists and non-medical community should use a uniform nomenclature.
·         Genetic counselling/consultation to be integral part of intersex clinics: Training programs should be designed suitably to be address intersex/DSD issues.
·         Undertake Research initiatives: Identification of knowledge gaps in current knowledge and take research initiatives
·         Develop patient education material in Indian languages: Knowledge about genetics in simple language would go a long way in promoting sensitization in society.
·         Take a holistic approach towards genetic analysis: Medical practitioners should not have look at genetic analysis purely as a test to determine and assign gender. The tests must be carried out with a holistic approach, to understand syndromic presentation and associated complications, and finally to arrive at an individualized management plan for condition diagnosed.
·         Increased focus on analyzing genetic data: Genetic data and analysis should empower physicians, affected individual, families and physicians alike in taking the best possible decisions. It may also help navigate surgical and hormonal decision making in DSD.
·         Emphasis on confidentiality and integrity: Genetic analysis should and will contribute immensely to holistic health care and clinical research and must always be performed with sincere respect for patient’s confidentiality and integrity.
·         Promote research on DSD: There is an urgent need to not only improve and accelerate the path to an accurate diagnosis but also to initiate cutting edge research on Difference of Sex Development conditions.


PART III: RESOLUTION ADOPTED AT THE BRIEFING MEETING
The discussion at the policy briefing meeting culminated with a resolution affirming a commitment to work towards strengthening the legal and policy framework regarding rights of intersex children. All the stakeholders were in complete alignment with the reference to fundamental rights in the Madras High Court judgment.
All the participants unanimously agreed that a change is required in the legal and policy framework to ensure that intersex children are not deprived of their fundamental rights. The participants also highlighted the need for greater acceptance of alternative sexuality in the mainstream.

  1. Fundamental Right to Gender Identity:  The NALSA decision had stated that transgender persons have a fundamental right to decide their gender identity as either man, woman or third gender. Incidentally, the court also found support for this legal proposition in Hindu traditions and modern neuroscience which validates the argument of internal and external gender mismatch experienced by the transgender population.

  2. Fundamental Right to Gender Expression: The court reiterated NALSA in saying that gender expression and presentation are protected under Article 19(1(a) of the constitution, and the State could not “prohibit, restrict or interfere” with a transgender person’s expression of the same.

  3. Right to Equality: The court also referenced NALSA to reiterate that the fundamental right to equality was available to “all persons” and not just men and women. Therefore, Article 14 (equality) finds discrimination on the basis of gender identity unconstitutional.
  4. Dignity and Privacy: The court also found, following NALSA, that the gender identity discrimination offends the fundamental right to dignity and privacy protected under Article 21.
Actions on part of Tamil Nadu Government
The primary aim for the briefing meeting was to arrive at a consensus regarding the broad framework of the Government Order prohibiting sex selective operations. The judgment delivered by the Madras High Court provides a set of guiding principles for the same.
All the stakeholders who participated in the meeting concurred with the principles laid down by the High Court judgment. Therefore, it is expected of the Tamil Nadu government to pass a Government Order which is in alignment with the spirit of the judgment.

·         Prohibit Sex Selective Surgeries on Intersex children/infants
The State government of Tamil Nadu has a golden opportunity with this government order to present a model law for the entire country. In this regard, it is necessary to consult all stakeholders to arrive at a consensus regarding the policy framework which is in tune with our civilizational values as highlighted in the Madras High Court as well as the constitutional position laid down in the NALSA case.
·         Promote awareness on alternative sexuality to address discrimination
It is the duty of the government to also fulfill the mandate of the NALSA Court judgment where it highlighted the need to spread awareness on issues related to SOGIESC rights. Also, the government should take positive steps to ensure social security safeguards for intersex persons.

Actions on part of Union Government
Recognizing the limited mandate of the Madras High Court judgment and the need for a nation-wide legislation of the subject, it is hoped that the Union Government will introduce a bill in the Parliament recognizing the human rights of intersex infants/children as outlined above.

The Constitution exists to protect individual autonomy, dignity, and self-determination. The fundamental rights chapter defends, advances, and fulfills these constitutional values by recognizing and affirming a set of inalienable rights. It does this not only by erecting a wall between the individual and the State, and prohibiting the State from breaching that wall (except in certain limited circumstances), but also by imposing positive obligations upon the State to ensure that fundamental rights become an effective reality for every Indian which include intersex persons.

In line with the constitutional values and our civilizational ethos, the Union government has the responsibility to take steps for protection and promotion of human rights of intersex persons.

·         Enact a nationwide legislation
The Union government must come up with a nation-wide legislation to ensure the right to bodily integrity is guaranteed to intersex person including infants/children. As per the Puttaswamy judgment, right to bodily integrity- a basic feature of right to privacy has been recognised as a fundamental right. Further, the NALSA judgment has also given constitutional status to the right to freedom of gender identity and gender expression.

In view of the above, the Union government must come up with a nation-wide legislation recognising the normative principles as laid down in the judgments of the Supreme Court and also the Madras High Court. It is also necessary that the legislation is drafted in consultation with all relevant stakeholders. The consultation process must include deliberations on concerns of the intersex community, ethical and health related concerns of medical professionals and genetic scientists.
·         Constitute a SOGIESC Unit in the Social Welfare Ministry plus Women and Child Development Ministry
With a view to affirm the mandate of the Supreme Court in the NALSA judgment, the Union government must formulate a dedicated department in the concerned ministries at the national level for ensuring implementation of SOGIESC rights.
·         Actively defend and develop the legal framework relating to SOGIESC rights at the international level
The Indian government should launch a national-level consultation process with experts on SOGIESC rooted in Indian knowledge traditions to develop research on issues related to rights of intersex persons. Further, India should actively participate in the defence and development of international norms on this issue.

Actions on part of Stakeholders
At individual as well as group level, all the stakeholders present in the meeting have agreed to be part of a national-level steering committee to advocate for legislation at the national level.

Srishti Madurai- the lead organiser of the meeting along with Intersex-Asia will ensure formation of national level steering committee and also pursue the advocacy efforts at the national level.

We also thank COC Netherlands and Ministerie van Buitenlandse Zaken 
(Ministry of Foreign Affairs (Netherlands)) for their support.

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