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Above: Intersex activist Gopi Shankar (right) with Zainabi Patel, a transwoman working for UNDP/Photo: @gopishankarmadurai/facebook.com

In a landmark judgment, the Madras High Court has banned sex reassignment surgery for intersex children and said they must be given time and space to find their true gender identity

By R Ramasubramanian in Chennai

In a move with far-reaching consequences, the Madras High Court has banned sex reassignment surgery (SRS) for intersex children. Justice GR Swaminathan of the Madurai Bench of the Madras High Court, while upholding the legal validity of a marriage between a transwoman and a man, slightly deviated from the original petition and its prayer and banned SRS for intersex children. Though the Madras High Court has jurisdiction throughout India, the judge made it clear that his order was applicable only in Tamil Nadu as of now.

Third gender activists say that this judgment is not just a landmark one, but also takes into consideration a plethora of physical and mental problems these children are beset with on undergoing such surgeries. Doctors, too, face a major challenge in determining the gender of such newborns as their sexual anatomy does not fit in with that of a typical male or female. Abroad, such births are in the ratio of 1:1,500 or 1:2,000, says WHO.

The High Court said that children must be given time and space to find their true gender identity and expressed its anguish and concern over parents rushing to have SRS performed on them.

The High Court recalled the efforts of intersex activist Gopi Shankar on this issue and lauded his work. “The response of the Health Ministry to Shankar’s petition to the National Human Rights Commission or NHRC for stopping SRS makes strange reading. The Health Ministry in response to Shankar’s representation forwarded by the NHRC said that the SRS was done on a child only after thorough assessment and the consent of the parent/guardian,” it said.

Justice Swaminathan praised Shankar in his judgment with the following words: “This Court must at this juncture place on record its gratitude to the intersex activist Gopi Shankar of Madurai. This Court had occasion to come across his work and it has been humbling and enlightening experience. Beyond the man-woman binary, there are as many as 58 gender variants. Of course, we use the expression ‘transgender’ as an umbrella term. When a child is born it is usually endowed with male genitalia or fe­male genitalia. But there are children who are born with genitalia that belong to neither category.  They are known as intersex children. They must be given time and space to find their true gender identity. But the parents make the infant undergo sex reassignment surgery.”

Justice Swaminathan cited a 2007 ruling by Justice K Chandru, a former judge of the Madras High Court, where he had clearly observed that the consent of a parent cannot be considered as that of the child. Justice Swaminathan quoted Justice Chandru, who in his ruling had quoted from The Prophet, a famous book written by Lebanese-American 19th century poet Kahlil Gibran: “Your children are not your children. They are the sons and daughters of Life. They come through you but not from you and though they are with you they belong not to you. You may give them your love but not your thoughts. For they have their own thoughts. You may house their bodies but not their souls. For their souls dwell in the house of tomorrow, which you cannot visit, not even in your dreams. You may strive to be like them, but seek not to make them like you. For life goes not backward nor tarries with yesterday. You are the bows from which your children as living arrows are sent.”

Transgender activists welcomed this judgment. Sudha, a transgender activist, told India Legal: “I have one suggestion to make. The age of children to undergo this surgery is 18 years. We want this to be lowered to 16. The reason is that a transwoman, ie, a person born as a boy but within whom resides a woman, from the age of 11 or 12 will start getting a moustache. Operating at 16 is medically easy. When that transwoman reaches 18 years, the operation is a difficult one. In my own experience, the success ratio of operations done before 18 is much more than those done after that age.”

She also said that operating on a boy and converting him into a woman is easier than making a person born as a girl into a man. This category is called transman. “Operating a transman and changing him into a man is medically tough. Surgically fixing a penis is not available in India. The concerned person has to travel to countries such as Sweden or the US and it is a very costly operation. Also, a transman wanting to become a normal man is low compared to a transwoman wanting to become a woman,” Sudha added.

Another transgender activist, Radhika John, has a different take on SRS. “WHO published a report titled Sexual Health, Human Rights and Law, which calls for a deferment of intersex genital mutilation until the intersex person is old enough to make a decision. That should be 18 years, not 16. But the anxiety of the parents is a major concern in a country like India where family values and age-old customs are stronger.”

R Sumathi, another transgender activist, said that the suicide rate among transgenders in India is rising. “As per a detailed study by the Indian Journal of Psychological Medicine across the country, suicidal behaviour, suicide attempts and suicides by transgenders are increasing and are higher as compared to the general population. This is across several countries.

“In India, 31 percent of transgenders end their life by committing suicide and 50 percent have attempted suicide at least once before their 20th birthday. But the exact prevalence of suicides among transgenders in India is undocumented,” she said.

Interestingly, Sumathi said the resilience of transgenders is amazing. “According to another survey by a prestigious social psychiatry magazine published from India, despite various hardships in their day-to-day life, the transgender community has a tremendous amount of resilience which needs to be explored further and strengthened. Protective factors such as acceptance, social support, education, employment, healthcare services and social inclusion must be provided to them so that the suicide rates can be arrested. In this regard, mental health professionals, social workers and society as a whole have a great responsibility and should initiate appropriate intervention,” she said.

That may be easier said than done.

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