I. Can Two Wrongs Make a Right?
Can the parents of an intersex child allow doctors to perform a genital reconstruction surgery on the child when the child has not consented and the gender orientation of the child is unknown? The Kerala High Court decided this question on the 7th of August 2023. The court answered this question in the negative, making this case arguably the first in the country to squarely consider this as a distinct legal issue. As the case for intersex rights awaits further filings and pleadings in the Supreme Court, this case along with a handful of other judicial interventions from the Madras and the Delhi High Court help consolidate the legal bases for a fuller future for intersex people in the country.
II. Facts of the Case
This case concerned a 7-year-old who was born with ambiguous genitalia whose parents wanted a genital reconstruction surgery performed on them. They wanted to raise the child as a girl in accordance with the chromosomal report which matched a normative female type. The child had been diagnosed with Congenital Adrenal Hyperplasia and the doctors had recommended a surgery. The parents were willing to give their permission for the same, but doctors refused to perform it without a court order. Thus, they approached the high court.
The parents’ case was built on claiming to know the best interest of the child. They argued that as parents they were best suited to decide the future of the child and delaying the decision would only cause hardship to the family. They also noted that the child had started to note the distinctive features and they feared potential social ostracization and trauma to the minor.
The Kerala Government opposed this claim by saying that they would prefer to put the case before a multidisciplinary committee and act according to their directions.
III. The Intersex Condition
Intersexuality is a biological condition and not a gender identity matter. An intersex person is one whose chromosomal make-up is different from the normative female (XX) and normative male (XY), or whose internal or external genitalia has features not typically associated with males or females. When a child is born with an intersex condition, especially one that is externally visible, like in the present case, the medical regime takes over and the doctors and parents often get reconstruction surgery performed on their child to align their sexual organs to the normative standards of one sex. These interventions are based on the idea that intersex conditions are not normal and need to be fixed. These sex normalising surgeries do not require the consent of the child. Indeed, in many cases, the child is too young to consent because the surgeries occur very early in their lives. There is a severe deficit of evidence on the therapeutic benefits of non-consensual intervention.[1] In fact, there is great risk of harm, medical and psychological and continuing from such non-consensual surgeries. [2]
However, there is no law in India regulating these surgeries. A pending public interest litigation asks the Supreme Court to pass directions on the matter but the last time it was listed was the 8th of April 2024. In 2019, following the Arunkumar case, the Tamil Nadu government passed an order banning reconstruction surgeries on intersex children except in life-threatening situations. The determination of the threat to life was to be made by a multi-specialist committee consisting of a paediatrician, an endocrinologist, a social worker/psychologist/intersex activist, and a government bureaucrat. The Arunkumar case did not deal with intersex rights per se, but one of the parties had an intersex condition, which prompted the Madras High Court to make an observation about reconstruction surgeries on children. Similarly, the Delhi High Court has also ordered the Delhi government to issue a similar ban and constitute a specialist committee to decide life-threatening cases.[3]
Therefore, a haphazard legal scheme prevails on intersex surgeries in the country. In this environment, this is the first case to consider the matter on its own terms—can the parents of an intersex child consent to such surgeries without their consent?
IV. Two Wrongs Can Make a Right
The court in this case noted that normally it would allow parents to take decisions on behalf of their children. However, a legal reason prevented it from doing so. This reason is based on a mistake in the law which was later codified, but is the one that saved the day. Two wrongs can make a right. In 2014, the Indian Supreme Court while deciding whether transgender people were entitled to fundamental rights, defined a transgender person to include intersex persons. While in essence this is an erroneous definition, it was potentially because in India, it is not uncommon to think that a transgender person means a person with ambiguous genitalia. Parents sometimes give away or abandon their intersex children because of stigma and they are given to the transgender community. An intersex person, like anyone else, may or may not be transgender. However, this definition was then codified in law when the Transgender Persons (Protection of Rights) Act, 2019 was passed. A transgender person was defined to include an intersex person as per S2(k) of the Act. The Act also imposed penalties on anyone harming, injuring, or endangering the life of a transgender person—aka an intersex person. Therefore, the court’s hands were tied, and it could not grant permission to the parents. Ironically, these mistakes in law made the court acknowledge what intersex activists have been saying for long—it is the right of an intersex person to choose their gender. The judgment also recognised such surgeries cause harm to the child and that there is a growing global recognition of the same.
Ultimately, the Kerala High Court directed the State government to form a committee of experts consisting of doctors and psychiatrists which will decide on a case-to-case basis whether a child needs a surgery if there is a threat to life. Regrettably, intersex representation is not required on the committee. The government was also directed to pass an order banning such surgeries on the lines of the Tamil Nadu order. No such order seems to have been passed just yet.
[1] See for example, this article cited by the court: James Garland and Santa Slokenberga, ‘Protecting the Rights of Children with Intersex Conditions from Non-consensual Gender Conforming Medical Interventions’ 27 (3) Medical Law Review 2019 (482).
[2] Fae Garland, Kay Lalor, and Mitchell Travis, ‘Intersex Activism, Medical Power/Knowledge and Scalar Limitations of the United Nations’ 22(3) Human Rights Law Review 2022 (1).
[3] Srishti Madurai Educational Research Foundation v Govt of NCT Delhi W.P.(C) 8967/2021 (Delhi High Court).