Srishti Madurai welcomes the Government Order (GO) issued by Tamil Nadu government banning the practice of sex reassignment surgeries on intersex children except on life-threatening situations. The Directorate of Medical Education (DME) has been entrusted with a task of appointing a committee to determine the ‘life-threatening situation’. The Order also prescribes the composition of the committee.
The Order includes a specific directive for DME to ensure that the exceptional clause is not misused in any way which affects the implementation of the ban.
It is a moment of great pride for Tamil Nadu as it has become the first state in India to have guidelines for the protection of human rights of intersex infants. We congratulate the Health and Family Department for respecting the spirit of the historic judgment by the Madras High Court. Earlier this April, the Court had directed the government to pass a GO banning non-necessary medical surgeries on intersex children.
In our view, this is a first major normative step towards a comprehensive legal protection regime for intersex children. While we welcome this measure, we have few recommendations for strengthening the enforcement mechanism of the order.
Ø Need for a Clarification/Guidance Note:
Being an executive action, it is but natural for the GO to have limitations. Till the time a comprehensive law is enacted on this issue, the implementation of the Government Order can be strengthened by issuing a Clarification/Guidance Note which should include the following:
· Listing specific medical surgeries which have been banned
· Prescribe a Standard Medical Protocol and accreditation process for Specialized Centres
· Prescribe Guiding Principles for the Committee constituted by DME
· Rules for Conduct of Business for the Committee constituted by DME
· Directive to give special attention to concerns of intersex community
· Include a Penal clause for violation of the ban
ØCommittee to determine ‘life-threatening situation’ be made Multi-disciplinary and Include Medical Geneticist
The GO has prescribed the following composition of the committee which has to be constituted by DME- (1) Paediatric Surgeon/Urologist (2) Endocrinologist (3) Social Worker/Psychology Worker/Intersex Activist and a (4) Government Representative.
We recommend that Medical Geneticist must be included in the Committee so as to better inform the whole process of determining ‘life-threatening situation.’ World over, the view of medical geneticist is given due consideration on this subject.
Ø End discrimination based on nomenclature and terminology:
It should also contain a direction for medical professionals to ensure that intersex traits are not characterised as “disorders of sex development.” Further, intersex traits should not be considered as genetic defects/genetic disorders and terms like ‘gender dysphoria’ should not be used to characterise experience of intersex persons.
Ø Taking into account the health needs of intersex children
On 29 July 2019, the Hon’ble Health Minister of Tamil Nadu, India highlighted the urgent need to cater to the health needs of intersex children and persons in the State Legislative Assembly.
We recommend that all persons seeking psycho-social counselling, support and medical interventions relating to sex or gender should be given expert sensitive and individually tailored support by psychologists and medical practitioners or peer counselling. Such support should extend from the date of diagnosis or self-referral for as long as necessary. A special Intersex support group should be established involving social workers, intersex activists etc. with a helpline for counselling of parents, children, adolescents.
At Srishti Madurai, we are delighted that our continuous advocacy efforts have contributed to policy-making process. After the judgment was delivered in April, we have made every possible effort to assist the government to draft the policy. Going forward, we hope to build on this progress with renewed energy and petition the Union Government to enact a Central law in this regard for protecting the dignity of intersex persons.
In particular, we are pleased to note that the government has adopted some of our recommendations in the Order like the definition of ‘intersex’. We are optimistic that our recommendations will be given due regarded by the government.
At this moment, we reiterate our commitment to work with the government at the state level and national level in making the legal protection regime more effective to fulfill the normative articulation of the NALSA judgment and the Madras High Court judgment.
We are hopeful that this development will inspire the Union Government to come up with a nation-wide comprehensive legislation which takes into account human rights of intersex persons across India. Such a law must recognize 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.
Published on 28th August 2019, approved by the Executive Director of Srishti Madurai