In a big, historic move for the LGBTQ+ community, the Madras High Court on Tuesday, 23 April, passed an order that bans sex-selective surgeries for intersex infants in Tamil Nadu.
“The consent of the parents cannot be regarded as the consent of the child,” the court announced, reported LiveLaw.
The High Court took cognizance of intersex activist Gopi Shankar’s complaint to the National Human Rights Commission regarding the practise of compulsory sex reassignment surgeries done on intersex children.
Medical Ethics Important, Not Just Science to Create an Inclusive Law: Shankar
Speaking to FIT, Shankar said, “Sex-selective surgery at birth disputes the bodily integrity of the newborn infant.”
“The country’s integrity is protected by the constitution and so the citizen’s integrity should be constitutionally protected too.”Gopi Shankar
Shankar added, “ We raised this to the High Court to start a discourse on this topic and have an inclusive law to protect vulnerable children who don’t have a community.”
In its order, the Madras HC also relied on a World Health Organization (WHO) report calling these surgeries ‘intersex genital mutilation,’ and calling for these to be delayed until the intersex child is old enough to decide.
In response to a question on doctors’ and parents potential hesitation in accepting this judgement, Shankar too referenced WHO, saying, “ We went with WHO standards – with medical ethics not just medical science.”
‘Everyone Deserves Choice and Happiness’
FIT spoke to a member of the intersex community who wholeheartedly welcomed the judgement.
Nikita* (name changed), identifies as intersex and said, “ The judgement is absolutely right, nothing should be done till the child has grown up and can decide their gender for themselves.”
“Everyone deserves choice, self happiness is so important and no one else has any right to decide for you. It is horrible if the parents and doctors decide and the child grows up and wants a different gender - they cannot turn back and it is very scary. This can ruin the child’s life.”Nikita
Blanket Ban Not Right Say Doctors
Nearly 1 or 2 in 1,000 infants are born under a category defined as ‘intersex.’ The controversial surgeries assign one or the other gender to the infant born with genitals that is not defined as male or female.
Doctor’s play a pivotal role in this process, and the doctors we spoke to were wary of celebrating it just yet.
Dr Archana Arya, a pediatric endocrinologist from Delhi, said, “Yes, a person should have the right to decide what they feel and are comfortable with, but as medical professionals we look at the functionality of the individual [in terms of sexual, reproductive function] more and how they will survive in the world.”
“A blanket judgement is not right,” she added.
Dr Shaila Bhattacharya, Manipal Hospital Bengaluru’s pediatric endocrinologist added, “ surgeries should be done in infant-hood,” to facilitate an easier life for the child.
“Schools don’t accept intersex as a category, they hardly let children with type 1 diabetes in so they are not thinking as far as intersex. Corrective surgery will help in the child’s future development.”
“The court is not thinking about the psychological impacts on the child.”Dr Shaila Bhattacharya
Who Decides?
“There is no one in the entire universe who can decide individual choices or happiness,” says Nikita
“I dont think a doctor can decide how I want to live my life and who I want to be.”Nikita
However, Dr Arya disagrees, saying, “It is not just the parents decision, doctors and psychologists should be involved too.”
In the debate of choice, the intersex people we spoke to said the medical community lags behind in the LGBTQ+ discourse and must not get to dominate the decision – which should solely lie with the intersex person.
“We must question the herteronormative binary and knowledge of the scientific community,” said Shankar.
Nikita agreed, saying, “ I want to tell parents to raise their kids as they are and listen to them. It is important to question doctor’s opinions and priortise the intersex child.”
“I would like to be born like I am again, not in a different body. I am very happy. This is how we question doctors saying we would be happier with surgeries.”Nikita
She firmly added, “We should decide.”
Complex Decision, Grey Areas
Dr Arya contended to the complex nature of the issue, saying, “ If there is confusion in the sex and gender the child will be mixed up and psychologically adversely affected. But this is complicated, WHO is right but another aspect is that what about the child's adjustment? In our society it will be difficult to be intersex.”
She added that there are positives to the ban, especially in a country like India where a lot of people opt for surgery to get a male child.
“ Often in India parents sex reassignment is done to force a male child, maybe the ban will prevent this,”Dr Arya
(With inputs from LiveLaw)
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