Intersex Justice in India: An unfinished agenda

22nd April is celebrated as National Intersex Day in India every year to mark the anniversary of the landmark judgment of the Madras High Court which led to the ban of intersex surgeries in the state of Tamil Nadu. It is an important day in the history of the intersex movement in India as well as Asia and therefore, it is necessary to take a stock of the developments on intersex rights since the judgment was delivered and where the movement is headed. 

The Madras High Court judgment was well-received across the board and was welcomed by the intersex community as well as it was the first time when the subject of sex ‘normalising’ surgeries was banned in the Indian context. This was the first judgment of its kind which recognised the right to consent and bodily integrity of intersex infants and children. In this judgment, the Court has acknowledged the fact that intersex children have the right to privacy which includes the right to determine their gender identity. The judgment declared a prohibition on sex-selective surgeries on intersex children in the state of Tamil Nadu. In view of the above, it was expected that this judgment was likely to have far-reaching consequences with respect to the future of the intersex human rights movement in India. However, the events in the legal and policy domain at the national level after the judgment did not align with the spirit of the judgment. 

The foremost setback for the intersex community was the enactment of a flawed law- The Transgender Persons Act, 2019. Ever since the NALSA judgment of 2014 was delivered by the Supreme Court of India, the government was expected to enact comprehensive rights-based legislation which recognises the rights of the diverse SOGIESC communities. With the Transgender Persons (Protection of Rights) Act, 2019, the Union government had the opportunity to ensure fundamental rights are guaranteed to all persons regardless of their sex characteristics and gender identity. However, the law has not lived up to the mandate of the Madras High Court judgment and hence, it suffers from serious flaws. It fails to recognise intersex people as a distinct category, and address their particular needs and they are repeatedly confused with transgender people. While the law supposedly also covers ‘persons with intersex variations’, it fails to protect intersex children from invasive medical interventions. It doesn’t recognise discrimination on the basis of sex characteristics. Further, it also doesn’t include the serious issue of intersex infanticide and selective abortion of intersex foetuses. In 2020, the United Nations Committee on Rights of Persons with Disabilities gave a wide range of recommendations to the Government of India on each of the issues mentioned above. While considering the initial report of India at the 22nd Working Session, the Committee recommended India “adopt measures to prevent sex assignment or “sex normalizing” surgeries, bullying and stigmatization against intersex children, ensuring their rights to preserve their physical and mental integrity.” To this day, the government has not taken any step to implement the recommendations of the Committee. 

The only positive development in the last two years came about when the Delhi Commission for Protection of Child Rights (DCPCR)- a statutory body, in January 2021, recommended that the Delhi Government institute a ban on the practice of medically unnecessary sex-selective surgeries on intersex infants. This development was a consequence of the landmark Madras High Court (Madurai Bench) judgment which called for a ban on intersex surgeries.  

The reason for the sorry state of affairs when it comes to intersex rights in India is also due to exclusion of intersex people from formal consultation processes when legal and policy decisions are taken. The government has not prioritised including intersex activists when it comes to policy-making processes. In 2020, Gopi Shankar was appointed to the National Council of Transgender Persons- a statutory body that is competent to address grievances of both the transgender and intersex communities. While this appointment was viewed as a significant step in ensuring representation of the intersex community in decision-making processes, it has not led to any major change in the legal and policy outcomes for the community.

It is clear from the above that the discourse around intersex issues in India is replete with conceptual disagreements. Due to the paucity of literature and the absence of any guidance from the Supreme Court decisions, the way forward for the rights of children with intersex traits is tough. Unfortunately, the current statutory framework still operates under the influence of a heteronormative approach. To make the situation worse, the Courts have also abdicated these issues to be worked out by the executive and the legislature. Going forward, it is hoped that a clearer understanding of intersex issues at the governmental level will lead to the enactment of a specific comprehensive law for the protection of intersex rights. Even though the judiciary has taken a lead in creating a robust normative framework, the role of the executive and the legislature is equally important to ensure better enforcement of the rights.