In an order that recognises the human rights of intersex persons, the Madras High Court on Monday directed the Tamil Nadu government to ban sex reassignment surgeries on intersex infants and children. Intersex persons are born with variations in sex characteristics – like chromosomes, hormones, and genitals – that do not fit into typical definitions of ‘male’ and ‘female’. In numerous cases, doctors and parents decide to perform surgeries on intersex infants and children to make their bodies conform to the male-female binary.
“When a child is born it is usually endowed with male genitalia or female genitalia. But there are children who are born with a genitalia that belongs to neither category. They are known as intersex children. They must be given their time and space to find their true gender identity,” Justice GR Swaminathan said, adding that ‘consent of the parent cannot be considered as the consent of the child’.
The Tamil Nadu government has been directed to issue a Government Order (GO) banning sex reassignment surgeries on intersex infants and children.
The court also expressed its gratitude to intersex activist Gopi Shankar, who had written to the Health Ministry regarding the issue. Speaking to TNM, Gopi said, “This is a historic verdict across Asia, that a judicial body has called for the fundamental recognition of infants who are not even part of the census. There are no safeguards for intersex infants in the country. So this verdict is very progressive.”
“We are happy that the judicial body has recognised our work,” Gopi added.
The court was hearing a case related to the marriage of a transgender woman with a cisgender man when it gave this order. Referring to the Supreme Court’s landmark National Legal Services Authority v. Union of India judgment of 2004 (henceforth, NALSA judgment), which said that no one can be forced to undergo sex reassignment surgeries, Justice GR Swaminathan said, “Since it has come to the notice of this Court that the mandate issued by the Hon'ble Supreme Court is not being honoured, this Court has to necessarily direct the Government of Tamilnadu to issue a Government Order enshrining the aforesaid mandate of the Hon'ble Supreme Court so as to effectively ban sex reassignment surgeries on intersex infants and children.”
The state's Health and Family Welfare Department has also been directed to file a compliance report before the court within a period of eight weeks.