India: Why Madras High Court Ban On Sex Change Surgery For Intersex Children Is Significant

On 22 April this year, the Madurai Bench of the Madras High Court came up with a landmark judgement on a petition by a couple seeking registration of their marriage on 31 October 2018. The couple were denied registration by Tamil Nadu authorities on the grounds that the bride was a transwoman. While upholding the validity of the marriage, Justice G R Swaminathan, in his ruling, went a little further and banned sex reassignment or change surgery (SRS) for intersex children.

Justice Swaminathan’s ruling is not just a landmark one but also takes into consideration the problems faced by children who undergo such surgeries after being born as intersex. In the case of intersex children, the doctors will not be able to determine if the new-born is a boy or girl as its sexual anatomy does not fit typical binary notion of male or female bodies. Globally, one such birth occurs for every 1,500 to 2,000 births. Stating that children must be given time and space to find their true gender identity, the court raised concerns over parents rushing to have SRS performed.

Lauding the efforts of intersex activist Gopi Shankar in taking up the cause of such children, the judge said the response of the Health Ministry to Shankar’s petition to the National Human Rights Commission (NHRC) for stopping SRS made a strange reading.

The Health Ministry, in response to Shankar’s representation forwarded by NHRC, said that the SRS was done on a child only after thorough assessment and the consent of the parent/guardian. Citing a ruling by Justice K Chandru of Madras High Court in 2007, Justice Swaminathan said the consent of a parent cannot be considered that of the child. Read more via Swarajya