Refusing to grant permission to parents for a “genital reconstructive surgery” on a seven-year-old intersex child, the Kerala High Court made critical observations about the rights of minors when it comes to their sex and gender identity. In the order passed on Monday, August 7, Justice VG Arun directed the Kerala government to constitute a state-level multidisciplinary committee to look into the matter and mandated the government to issue an order regulating such surgeries on intersex children.
In this case, the child has ‘Congenital Adrenal Hyperplasia (CAH)’, a cluster of medical conditions that affect the adrenal glands of a person. As a result, the child has variations in their genitalia, with a common opening for both the uterus and the vagina. The child’s parents approached the Kerala HC seeking permission for surgical intervention so that they can raise the child as a female.
The counsel for the petitioner, advocate TP Sajid, argued that the surgery was imperative “as the child has started noticing the distinctive features” and that there was a possibility of social ostracisation. The counsel also contended that the parents of the child were “best suited to decide the future of the child” and that a delay in the decision will cause undue trauma to the child and hardship to the family.
On behalf of the government, pleader PS Appu submitted that as per the direction of the court, a medical board examined the child and suggested that a State Level Multidisciplinary Committee should be formed to take “a studied and legally sound decision” in the matter.
The court had also appointed advocate Indulekha Joseph as an amicus curiae in the matter (someone who is not a party in the case but assists the court by giving information, and insights), and advocate Indulekha told TNM that such surgeries usually happen without consent when the child is still minor, due to societal pressures. “As they are a child, we cannot know their gender identity. If surgery happens, it is often irreversible. What I suggested to the court is that a surgery should be done only if there is a life-threatening situation, based on a case-by-case analysis”.
In the concluding portion of the 91-page-long report submitted by Indulekha, it has been recommended that navigating social stigmas is “better than tormenting a hapless child by imposing a gender” upon them, resulting in “unbearable surgical scars”.
After hearing both sides, the Kerala HC held that granting permission to conduct a “genital reconstructive surgery” would impinge on the rights of the child guaranteed under Articles 14 (equality before law), 19 (protection of certain rights regarding freedom of speech), and 21 (protection of life and personal liberty) of the Constitution of India and that doing a surgery without the child’s consent would “violate the child's dignity and privacy.”
The court also observed that such permission to conduct a surgery will cause “severe emotional and psychological issues” if the child grows up and identifies with a gender “other than the one to which the child was converted through surgical intervention”.
Observing further that the question pertaining to the rights of the parents to decide the gender of their minor child is “vexing”, Justice Arun said that 'gender’ and ‘sex' are often used interchangeably, but they are “two distinct concepts related to human identity and biology”. “Sex refers to the biological characteristics of a person, particularly in relation to their reproductive anatomy and chromosomal composition. Gender, on the other hand, is a social and cultural construct that encompasses the roles, behaviours, expectations, and identities associated with being male-female or non-binary,” he noted.
Justice Arun also added that though the parents of the child raised concerns regarding the health of the child if not operated upon, the child’s medical records do not make a case warranting immediate intervention. He observed how none of the doctors the parents consulted were willing to do the surgery without a court order, and gave the following three directions in the matter:
> The government should constitute a State Level Multidisciplinary Committee consisting of experts, including a pediatrician/pediatric endocrinologist, pediatric surgeon, and child psychiatrist/child psychologist.
> The committee should examine the child within two months and decide if the child was facing any life-threatening situation by reason of variation in its private parts. If a life-threatening situation is identified, permission can be granted for carrying out the surgery.
> The government should issue an order within three months regulating sex-selective surgeries on infants and children. Until an order is issued, any sex-selective surgery shall be permitted only based on the opinion of the State Level Multidisciplinary Committee.
The Kerala HC also reiterated the rights of intersex children and persons as stated by multiple stakeholders, including the United Nations Convention on the Rights of the Children (UNCRC), and added that the NALSA judgement “opened up a space for challenging the gender binary straitjacket, by legally recognising and protecting gender variations.” In the landmark National Legal Services Authority (NALSA) v Union of India and Others case of 2014, the Supreme Court upheld the rights of persons to self-identify their gender identity.
The court also referred to the 2019 Madras HC judgement that directed the Tamil Nadu government to issue an order banning sex reassignment surgeries on intersex infants and children.
Intersex is an umbrella term that includes a range of natural bodily variations and an intersex person is someone with a range of biological features that are atypical of what are widely understood as male or female sex characteristics. However, widespread misunderstanding and the need to pathologise the bodies of intersex persons as they do not fit the ‘binary’ genders have led to non-consensual surgeries performed on the bodies of intersex children and infants.
Taking note of this, the Kerala HC observed that if democracy is based on the recognition of the individuality and dignity of a person, the right to choose their sex or gender identity, which is one of the most basic aspects of self-determination, dignity, and freedom has to be upheld. It said that intervention with an individual's right to choose sex or identity will definitely be an “intrusion into that person's privacy and an affront to his/her dignity and freedom”.