Human Rights Issues

[op-ed snap] Setting the clock back on intersex human rights

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing much

Mains level : Transgender Bill

Context

The Transgender Persons (Protection of Rights) Bill, 2019, continues to trigger protests across the country. Still, Rajya Sabha has passed the same version of the draft law that was passed by the Lok Sabha.

The journey of intersex human rights

    • Arunkumar v. The Inspector-General of Registration – Given by the Madurai Bench of the Madras High Court, it judgment marks the beginning of a journey of intersex human rights in India. 
    • It took up the issue of the validity of consent given on behalf of intersex infants for undergoing sex-selective surgeries. 
    • It held that the consent of the parent cannot be considered as the consent of the child. Hence, such surgeries should be prohibited. 
    • It recognizes the consent rights of intersex children and the right to bodily integrity. 
    • The judgment declared a prohibition on sex-selective surgeries on intersex children in Tamil Nadu. 
    • Tamil Nadu banned sex reassignment surgeries on intersex infants and children.

Transgender Bill

    • It also deals with issues related to human rights protection of intersex persons.
    • The title of the Bill itself is exclusionary. It does not accommodate all persons whose legal protection it seeks to recognize. 
    • Transgenders have a different gender identity than what was assigned to them at birth. Intersex indicates the diversity of gender-based on biological characteristics at birth. 
    • There are also multiple variations in intersex itself. The Bill is not in alignment with the evolving international human rights framework. 
    • Parliament has to change the title of the Bill to Gender Identity, Gender Expression and Sex Characteristics (Protection of Rights) Bill, 2019. It conflates the condition of intersex persons with transgender persons. 
    • Mostly. the legal and welfare needs of intersex persons are different from those of transgender persons.
    • Some persons born or living with intersex traits can live with a non-binary identity or may choose to live as gender-fluid persons. The Bill fails to account for these possibilities. 
    • It does not provide for the definition of terms such as gender identity, gender expression, and sex characteristics.
    • The Bill doesn’t say much about discrimination against intersex persons. Intersex conditions are termed in derogatory terms even by medical professionals. 
    • It should have included a provision directing medical professionals to ensure that intersex traits are not characterized as “disorders of sex development”
    • Intersex traits should not be considered as genetic defects/ disorders, and terms like ‘gender dysphoria’ should be used to characterize them.

Unnecessary medical procedures

    • As per the court’s jurisprudence, medical procedures are not a necessity for self-identification. 
    • The Union Health Ministry has still admitted that medical procedure including sex reassignment surgeries are being performed on intersex children. 
    • Court slammed the Ministry for its poor understanding of consent rights and imposed a ban on the practice of sex reassignment surgeries on intersex infants/children. The Bill fails to protect intersex persons from unnecessary medical intervention.

Conclusion

    • The discourse around gender and sexuality has evolved a great deal in the last decade. 
    • The current legislative discourse on this issue suffers from a lack of foundational understanding. 
    • Intersex persons are particularly vulnerable and experience barriers in access to education, employment, marriage, etc. 
    • The Bill turns back the clock on decades of positive change brought about by intersex activists.
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