April 22, 2020 marks the first anniversary of the landmark judgment of Madras High Court recognising human rights of intersex people. Today, the intersex community in India is celebrating the first National Intersex Human Rights Day. It is a momentous day in the journey of intersex rights in India. This judgment led to a ban on unnecessary medical surgeries on Intersex infants/children in the state of Tamil Nadu. Examining the validity of consent given on behalf of intersex infants for undergoing sex selective surgeries, the court held that the consent of the parent cannot be considered as the consent of the child. Therefore, such surgeries should be prohibited. It is a landmark judgment as it recognises the consent rights of intersex children and the right to bodily integrity.
Complying with the directions of the court, the government of Tamil Nadu passed a government order banning unnecessary medial surgeries on intersex infants and children. Srishti Madurai is proud to have worked with the government at every step of drafting process.
With this government order, Tamil Nadu became the first state in India to have given normative effect to the demand for stronger legal protection of rights of intersex children. If adopted nationally, India will become the second state globally after Malta to have a legal regime which protects the rights of intersex children.
Prior to this judgment, intersex people in India were largely absent from the legal discourse and were consequently invisiblised in the public discourse as well. This judgment was the first instance in which a court of law defined the term- ‘intersex’ and also highlighted the need to eliminate stigma against intersex people and the obligation of the government to raise public awareness on intersex rights.
This judgment is also an important milestone in the journey of Srishti Madurai as well which has been actively working on creating a space for people belonging to diverse SOGIESC identities in India for the past nine years. The judgment specifically recognised the contribution of Gopi Shankar-Founder, Srishti Madurai. The demand for ban on such surgeries was raised by Gopi Shankar in 2016 itself. Ze wrote a letter to National Human Rights Commission (NHRC) to “to ban the forced sex selective surgeries & medical abuse on Intersex babies in India & to recognise Intersex people’s fundamental rights in India.”
Through the judgment, Justice G.R. Swaminathan has laid down a strong foundation for rights of intersex children quoting references from ancient Indian epics as well as landmark apex court decisions.
However, even after one year of the judgment, a comprehensive human rights protection is still a distant reality for the intersex community in India. This is quite visible from the recent legislative attempts such as the Transgender Persons Act, 2019 where specific needs of intersex people have not been recognised.
Going forward, it is hoped that the vision laid out by the Madras High Court in the judgment of Arunkumar & Sreeja is emulated as a nationwide model for India and is also adopted by countries across the world.
Adikara Adhyaksha of Srishti Madurai