June 4, 2022, 2:57 p.m.
Pens of Law students
Author: Sadhana Swaminathan, is a 3rd law student currently pursuing her law from RGNUL, Punjab
Discourse on the LGBTQIA+ community in India mostly involves topics such as marital and adoption rights of same-sex couples, rights of transgender people, wider representation in the workforce etc. Most of us tend to forget the ‘I’ and restrict ourselves to the other alphabets. The nearly invisible ‘I’ stands for ‘Intersex’. Intersex individuals are those who are born with sexual characteristics (for example genitals and chromosomes) that do not belong strictly to male or female categories, or that belong to both at the same time[i]. The majority of the population considers sex to be strictly binary. One is either male or female. This binary classification ignores intersex people who fall in between, and this has led to consistent neglect of the group. The term intersex has often been interchangeably used with the word ‘transgender’. Intersex refers to the sexual characteristics a person is born with while transgender refers to gender identity. But many, including policymakers, fail to understand this fundamental difference, and this results in the making and implementation of laws that are inadequate at best and can have a fatal impact on the intersex community.
The Transgender Persons (Protection of Rights) Act was the result of a decade of activism in India for inclusive legislation. This Act has been a long time coming. For nearly eight years, the government has been attempting to frame a law for the protection of transgender persons. The Act which is supposed to have enhanced the fight for achieving gender justice in India has ended up casting a shadow. It was received with widespread criticism and termed as ‘regressive’. The Act stumbles at the very beginning with the exclusionary nature of its title. Critics have pointed out the various shortcomings of the Act, such as the arbitrary powers vested with the District Magistrate. Legal recognition as a Trans person will only be given based on a Certificate of Identity issued by the District Magistrate. There is little clarity on reservations, economic opportunities and rehabilitation. But the provision that causes the most harm to sexual minorities in India, particularly the intersex persons, is Section 2(k), which defines a transgender person as:
"transgender person" means a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), a person with intersex variation gender queer and person having such socio-cultural identities as Kinner, hijra, aravani and jog.”[ii]
Though there is a consensus in the medical and academic community, that ‘transgender’ and ‘intersex’ are distinguishable groups, our lawmakers have conflated the two and this has further made the intersex people invisible in the eyes of law and the society. By bringing the intersex people under the trans umbrella, their unique needs and the issues they face are ignored. Apart from the flawed definition, there is no other mention of intersex people in this act. This conflation will lead to the neglect of the unique issues faced by intersex people.
The act talks about sex reassignment surgeries which some transgender persons choose to undergo. But there is no mention of the non-consensual often unnecessary medical procedures that are performed on intersex persons, including infants and children. These non-consensual ‘genital normalization’ surgeries are one of the most appalling human rights violations faced by the intersex community. When a baby with intersex characteristics is born, most physicians advise normalization surgeries. These surgeries are a result of the notion that there are only two sexes and their corresponding genders. Parents are often misled to believe that the surgery wouldn’t have any lasting negative effect on their child. But it is proved that these genital normalization surgeries can cause reduced sexual sensitivity, torn genital tissue, removal of natural hormones, sterilization and depression[iii].
● According to section 2(k), ‘all intersex persons are transgender people. This section deprives intersex individuals of their right to self-determination of gender identity, thereby violating the NALSA judgment.
● Another serious implication of this inclusion is the failure to address an issue that is unique to intersex persons, intersex infanticide. In many cultures, intersex infants are seen as ‘bad omens’ and are quietly killed as soon as they are born. In Rajasthan, there is a practice of burying intersex infants alive[iv]. This social evil hasn’t been addressed by any governmental agencies in India yet.
● By conflating transgender and intersex persons, the statistical gap has been widened. No statistical exercise about the specific issues faced by intersex people has been carried out by the state.
● Intersex individuals remain underrepresented within the LGBTQIA+ community itself. There is little awareness about them among the public. By legally including them under the Trans umbrella, they continue to languish in the margins.
When it comes to the protection of the rights of sexual minorities, the judiciary has a better track record than the government. The first case about the rights of intersex people came before the Delhi High Court in 2008. Faizan Siddiqui, an intersex woman was denied joining the Border Security Force despite clearing the written examination and physical tests. Her candidature was rejected as she was found to be ‘medically unfit. She filed a writ petition before the Delhi High Court challenging the rejection. The defendants listed the reasons for the rejection of her candidature, one of them being her inability to bear children. She was rejected because her inability to bear children naturally “may lead to adjustment problems in later life”. The Court rightly observed that “infertility or inability to bear children normally plays no role at all in determining fitness for service.” The Court found that the rejection of the petitioner’s candidature was “arbitrary, irrational and illegal”, and held that the petitioner was entitled to recruitment and quashed the rejection[v]. Faizan Siddiqui joined the force in 2011. This judgment broadened the scope for the protection of intersex person’s rights in employment.
In Arunkumar and Sreeja v. The Inspector General of Registration and Ors, the Madras High Court held that the term bride under the Hindu Marriage Act would also include a transgender person identifying as a woman. The Court also issued directions to the government for sex-selectivee surgeries on intersex infants, except to overcome life-threatening medical conditions[vi]. The Court cited a previous judgment S. Amutha v C. Manivanna Bhupathy in which it was held that the consent of a parent cannot be considered as the consent of the child[vii]. The Madras High Court became the first judicial body in the world to pass an order banning normalizing surgeries on intersex infants. Following the judgment, the Health and Family Welfare Department issued a government order banning sex reassignment surgeries on intersex infants and children except in life-threatening conditions.
Though we have a long way to go when it comes to the protection of the rights of intersex persons, the Courts of Justice in India offer some hope.
The intersex community is not given the attention it deserves in the general discourse in our country. The need of the hour is to educate the public about the existence of people with intersex characteristics. With no awareness of their existence, their rights cannot be protected. Only sensitization would lead to the upholding of their rights and this must begin at the school level.
The title of the Act must be amended to become more inclusive.
Section 2(k) must be amended and a new definition that distinguishes transgender and intersex people must be incorporated.
The non-consensual surgeries that are performed on intersex infants and children must be banned across the country.
A welfare committee must be formed. Currently, only the National Commission for Transgender Persons exists. Thus, a national body that would focus only on the interests and upliftment of intersex people is required.
Intersex persons are one of the most neglected groups in the world. Laws like the Transgender Persons Act would only shove this already beleaguered group further into invisibility. Hopefully, with the changing attitudes towards people with diverse sexual characteristics and gender identities in our society, there would come a time when intersex people would be able to live without being discriminated against and exploited.
[i]Ariana Aboulafia, 'Just What the Doctor Ordered?: An Analysis of Unnecessary Surgeries on Intersex Children from a Human Rights Perspective' (2020) 30 U Fla JL & Pub Pol'y 321
[ii] Transgender Persons (Protection of Rights) Act 2019.
[iii] Mayur Suresh et al., Nothing to Fix: Medicalisation of sexual orientation and gender identity 160, (1st ed 2016)
[iv] Angela Ann Joseph, Gender Issues and related social stigma affecting patients with a disorder of sex development in India, vol 24(2) Archives of Sex Behaviour 361-367, (2018) < https://www.researchgate.net/publication/308384812_Gender_Issues_and_Related_Social_Stigma_Affecting_Patients_with_a_Disorder_of_Sex_Development_in_India > accessed 12 January 2022
[v] 2011 (124) DRJ 542
[vi] WP(MD) No. 4125 of 2019
[vii] Civil Petition No. 1076 Of 2006