Supreme Court Issues Notice On PIL Seeking To Recognize Rights Of Inter-Sex Children, Curb Sex Reassignment Surgeries

The Supreme Court on Monday (April 8) issued a notice in Public Interest Litigation raising the need for central legislation recognising the rights of intersex children and persons. The PIL sought directions to curb sex-reassignment surgeries performed on inter-sex children before they attain the age of majority. 

An intersex individual is born with a combination of male and female biological traits, and the person's sex assigned at birth does not fit within the definite social categories of 'male' and 'female'. 

The PIL concerns the lack of recognition of the rights of intersex persons, with special emphasis on intersex children. The petitioner highlighted that such children face discrimination from the point of their birth as there is no option to register their birth and death details on the online government registration applications. The census also excludes their representation and they are not recognised as voters.  

A key concern raised by the petitioner was that sex-determination surgeries are being performed with the consent of the parents of infants in several states. It is only in the state of Tamil Nadu that such surgeries have been banned by the Madras High Court until the child attains the age of giving informed consent. There is a need for a legislative mechanism to address the concerns that arise out of the medical interventions done with a child who undergoes intersex surgery. 

The counsel submitted " In other jurisdictions such medical interventions are punishable offences, and there are special teams of doctors who are to determine whether the sex determination surgery is an urgent one or not until the child attains the age of giving informed consent. So in similar fashion, we do not have any legal mechanism."   

The bench comprising CJI DY Chandrachud and Justices JB Pardiwala and Manoj Misra issued notice in the petition and requested Additional Solicitor General Ms Aishwarya Bhati to assist the Court. 

It may be recalled that the Madras High Court has banned sex-determination/ sex- reassignment surgeries for infants. The bench of Justice G R Swaminathan took the view that inter-sex children must be given their time and space to find their true gender identity. However, the parents make the infant undergo sex reassignment surgery (SRS). Rejecting the Health Ministry's stand that the process was done with the consent of the parents/guardian of the child, the Court held that the consent of the parent cannot be regarded as the consent of the child.  

The Court took notice of a report of the World Health Organization calling for deferment of intersex genital mutilation (IGM) until the intersex persons are old enough to make decisions for themselves.

"The Hon'ble Supreme Court in NLSA case categorically stated that no one shall be forced to undergo medical procedures, including SRS, sterilisation or hormonal therapy, as a requirement for legal recognition of their gender identity. But, what is happening in reality is more in breach of this judgement given by the Hon'ble Supreme Court", said the Court.

The court directed the state government to issue a government order to effectively ban sex reassignment surgeries on intersex infants and children.  

Subsequently, In August 2019, the Tamil Nadu government issued an order banning SRS on intersex infants, with the only exception where a life-threatening situation prevails for the infant concerned. 

"5. 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, have decided to ban sex reassignment surgeries on intersex infants and children except on 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 1) Paediatric Surgeon/Urologist 2) Endocrinologist 3) Social Worker/Psychology worker/intersex activist and 4) a Government representative not below the rank of Under Secretary to the Govemment. The Director of Medical Education shall take every step to ensure that the above exceptional clause of 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."

Case Details: GOPI SHANKAR M vs. UNION OF INDIA Diary No.- 4315 - 2024 

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