Madras High Court in Arunkumar’s Case gave orders to ban sex reassignment surgeries on intersex infants and children. The Health and Family Welfare Department of Tamil Nadu released Government Orders adhering to the orders of the Hon’ble High Court.
The Hon’ble Madurai Bench of Madras High Court directed the Secretary to Government, Health and Family Welfare Department Suo motto to issue a government order enshrining the mandate of the Hon’ble Supreme Court so as to effectively ban sex reassignment surgeries on intersex infants and children and also directed to file a compliance report before the registry within a period of eight weeks from the date of receipt of a copy of the order. Below is the abstract of the order issued by the Health and Family Welfare Department.
- The term “Intersex” refers to People born with physical and biological sex characteristics that are more diverse than stereotypical definitions for male or female bodies. With around 40 different recognized types of intersex variation, there is a huge diversity among intersex people to be acknowledged. Intersex variation can be picked up at any time during life. It is not always something that is obvious from birth. There is no ONE Intersex experience.
- The World Health Organization has published a report titled “Sexual Health Human Rights and Law”, wherein among others; intersex people may face discrimination and stigma in the health system, in many cases being subjected to lack of quality of care, institutional violence and forced interventions throughout their lifetime. A major concern for intersex people is that so-called sex normalizing procedures are often undertaken during their infancy and childhood, to alter their bodies, particularly the sexual organs, to make them conform to gendered physical norms, including through repeated surgeries, and hormonal interventions, and other measures. As a result, such children may be subjected to medically unnecessary, often irreversible, interventions that may have lifelong consequences for their physical and mental health, including irreversible termination of all or some of their reproductive and sexual capacity. Medical procedures may sometimes be justified in cases of conditions that pose a health risk or are considered life-threatening. Such procedures, however, are sometimes proposed on the basis of weak evidence, without discussing and considering alternative solutions.
- The Hon’ble Supreme Court in the National Legal Services Authority case categorically stated that no one shall be forced to undergo medical procedures, including Selective Reassignment Surgery, sterilization, or hormonal therapy, as a requirement for legal recognition of their gender identity.
- In this regard, the remarks of the Director of Medical Education have been called for and he has forwarded the expert opinion on this subject. The Professor and Head of the Department, Department of Plastic, Reconstructive and Facio-Maxillary Surgery, Rajiv Gandhi Government General Hospital has opined that Sex Reassignment Surgery should not be done on infants and children. The members of the Indian Association of Paediatric Surgeons have opined that any order banning sex reversal surgeries must exclude surgeries regarding Disorders of Sex Development and proposed to set up a committee to support the medical intervention in case of necessity.
- The Government after careful examination of all the above points and based on the opinions of the experts as forwarded by the Director of Medical Education, has decided to ban sex reassignment surgeries on intersex infants and children except in life-threatening situations and ordered accordingly. The life-threatening situation shall be decided by the Government based on the recommendation of the Director of Medical Education who shall form a committee comprising of:
- Paediatric Surgeon/Urologist
- Social Worker / Psychology worker/intersex activist and
- A Government representative not below the rank of Under Secretary to the Government.
- The Director of Medical Education shall take every step to ensure that the above exceptional clause of the life-threatening situation shall not be misused in any way by anyone which shall affect the implementation of the ban on sex reassignment surgeries on intersex infants and children.