CELEBRATING NINE YEARS OF SRISHTI MADURAI’S JOURNEY IN SERVICE OF TRUTH (DHARMA) AND JUSTICE


Namaste/Vanakam
Love and greetings from Srishti Madurai!

Wish you happy Ganesh Chaturthi / VinayakaChaturthi

On 2nd September 2019, we are celebrating nine years of our journey as India’s first Genderqueer and Intersex led human rights movement. We began our journey with a humble aim to create a space for Genderqueer, Intersex and LGBTQA+ Indians in the public discourse. Through its activities, Srishti Madurai has continuously worked to generate discussions, solution-oriented research, scholarship and publications on SOGIESC issues in Tamil Nadu/India. 

At every step in the journey, we have made an attempt to engage constructively with all stakeholders to work towards holistic protection of human rights of LGBTQIA+ and Genderqueer people. We’ve tried to fill crucial gaps in law and policy by bringing into focus the rights of Intersex persons as per India’s constitutional scheme.   

As a self funded volunteer based movement/organisation, none of our accomplishments would have been possible without the overwhelming love and support we got from people of all walks of life. We are deeply grateful to everyone- all individuals and organisations who have supported us in our work so far.
Special mention of thanks and gratitude to the support we received from OII Chinese Taiwan, IHF the Astraea Lesbian Foundation for Justice, Intersex Asia, COC Netherlands and NNID.

The journey so far…

On 2011 September 2 a handful of student volunteer team inspired by each other in Madurai started a forum for non-binary, genderqueer & Intersex people in Madurai we named our team as Srishti Madurai inspired by Anjali Gopalan.

2012: Our movement started with a 24X7 phone helpline for genderqueer people in three South Indian languages. In the same year, Srishti Madurai organized the Alan Turing Rainbow Festival 2012 which was essentially a Genderqueer Education festival to mark the birth centenary celebrations of Alan Turing. We reached out to more than 600 school children in Madurai. In the same year, we organised Asia’s first genderqueer pride festival which included participation of Anjali Gopalan, A. Revathi ma and several key persons.  

2013: In this year, we took up the case of Champion Athlete Santhi Soundarajan who is now one of the committee members of Srishti Madurai. Regional Tamil terms for Genderqueer identities were coined by Team Srishti Madurai at the American College, Introduced Gay literature, and Transgender literature as part of curriculum at the American College in Madurai.

Srishti Madurai started offering courses on Indian Philosophy, Psychoanalysis, Trekking Team of Srishti Madurai started monthly Trekking events for Madurai queer community and allies to discover the History of Madurai in SOGIESC lens.  

2014: First Tamil book on LGBTQIA+ genderqueer rights was published, this book was launched by Tamil Nadu BJP leader Srimathi Vanathi Srinivasan in the presence of several volunteers from RSS. Later, this book became part of the curriculum for Intersex Human Rights Studies for Tamil PG Research Department at the American College in Madurai. Now, this book is also available in all public libraries in Singapore. It has created strong influence in Tamil diaspora in the South Asian region. 

Team Srishti Madurai theatre performance on Bio Art - Genesis was initiated by John Marshal

Team Srishti Madurai started the Kannagi Study Circle to spread the Tamil Philosophy in SOGIESC perspectives.

2015- Srishti Madurai was invited to witness the passage of the Transgender person’s Rights Bill presented by Tiruchi Siva in the Rajya Sabha (Parliament of India).

Srishti Madurai requested MPs from both upper and lower house of Parliament of India to present the issues pertained to intersex human rights in India.

2016Justice for Santhi campaign was initiated by Srishti Madurai to highlight the discrimination faced by Female Athletes, the campaign reached more than 1 Million people. Srishti Madurai was instrumental in getting a Government Order for  (permanent job) Santhi Soundarajan as athletic coach in Sports Development Authority of Tamil Nadu.

Srishti Madurai started awareness campaign to educate law makers, policy makers, politicians, medical practitioners, academicians, and media people on Intersex Human Rights.

Srishti Madurai launched a important petition to ban sex selective surgeries on infants born with Intersex traits to the National Human Rights Commission of India.

2017Srishti Madurai started engaging with various Religious bodies and faith communities to create awareness on SOGIESC issues.

Srishti Madurai engaged with Buddhist, Jain, Islamic faith leaders/communities and also with the National Council for Churches in India. JM John Marshal and Gopi Shankar contributed to various interfaith dialogues and primary book project to educate the religious leaders from the church on SOGIESC. Especially Srishti Madurai contributed to the book “Definitions- Understanding Gender, Sex, and Sexuality. A Theological Reader on Human Sexuality and Gender Diversities: Envisioning Inclusivity”

Srishti Madurai was part of Madrid Summit 2017 and World Pride, Madrid, Spain.
Srishti Madurai was one of the signatories and key speaker at Madrid Summit Declaration along with the officials from the UNESCO, the EU parliament and the UN. Also politicians from 11 EU countries were present in this event.

Srishti Madurai was invited to ILGA Asia Regional Conference at Cambodia- first time Intersex Human Rights in India was discussed at the Asian forum.

Gopi Shankar Madurai was elected as Intersex Representative and Executive Board Member of ILGA Asia region

Our former Trustee and advisory board member Nandini Murali penned the book – Life in In Trans Activism A. Revathi - by Zubaan Publication.

Self-funded till 2017

2018- main focus-
Srishti Madurai became one of the founding members of Intersex Asia (Asia’s first collective forum for Intersex activists, individuals and Intersex led organisations) in Bangkok

Students from more than 12 countries visited Srishti Madurai for learning SOGIESC issues in Indic perspective, Inspired number of scholars

Srishti Madurai organised the Matrixial Intersex Festival supported by the Intersex Human Rights Fund, Dr. Bracha Ettinger renowned scholar delivered the key note address. 

2019: OII Chinese Taiwan and RFSL Sweden supported Srishti Madurai to attend ILGA World Conference in Wellington- for the first time Intersex Youth Panel was formed and Gopi Shankar Madurai was elected to the Youth Steering Committee of ILGA World.  

Volunteers from Srishti Madurai for the first time attended the ILGA Asia conference in Seoul & 2nd Asian Intersex Forum at Seoul, South Korea.

Srishti Madurai inspired the landmark judgment from the Madras High Court (Madurai Bench) to ban sex selective surgeries on Intersex Infants/Children in Tamil Nadu which directed the Ministry of Health and Family Welfare of the Government of Tamil Nadu to pass a Government Order within 8 weeks from the court order.

Srishti Madurai jointly with Intersex Asia organised 1st ever policy briefing meeting to  pass the Government Order, was co sponsored by COC Netherlands.

Srishti Madurai along with NNID Netherlands jointly submits a report in CRPD treaty bodies meeting on September 2 2019 sponsored by COC Netherlands.

Historic Victory 
The State Government of Tamil Nadu, India passed a Government Order to ban sex selective surgeries on Intersex infants with the inputs from Srishti Madurai 

No words can express our sincere gratitude and appreciation for the overwhelming support and kindness everybody showed to Srishti Madurai.

One by one each day flew by, 9 years of memories that you shared with Srishti Madurai, volunteers who were with us to share/organise/celebrate big events and holidays, to simple daily pleasures. Some tearful times along Srishti Madurai’s way, some joy that can’t be measured. 

9 years now gone, but still our gratitude makes sense of our past, brings peace for today, and trying to create a space to celebrate who we are. 

These 9 years of service made us to take a baby step to bring up a social space for Intersex, Genderqueer and LGBTQA+ task not just in Madurai but also in Asia. So far, we have organised/were part of more than 100 seminars, conferences on SOGIESC topics, created impact with more than 300,000 students, coined Tamil terms for SOGIESC identities under Genderqueer umbrella.

Today, in Srishti Madurai we are entering the 10th year of our existence. It’s a moment of great blessing for us to serve this cause. Also, today (2019 September 02) we are presenting our joint submission report on human rights of intersex children in India at the treaty bodies meeting at United Nations in Geneva.
Bless us, Be with us in this non-static journey.

Jai Ma (Hailing the Mother Creation)

Published on Vinayakar Chathurthi (September 02 2019), approved by the Executive Director of Srishti Madurai 

STATEMENT FROM SRISHTI MADURAI: WELCOMING THE GOVERNMENT ORDER ISSUED BY TAMIL NADU GOVERNMENT BANNING THE SEX REASSIGNMENT SURGERIES ON INTERSEX CHILDREN


Srishti Madurai welcomes the Government Order (GO) issued by Tamil Nadu government banning the practice of sex reassignment surgeries on intersex children except on life-threatening situations. The Directorate of Medical Education (DME) has been entrusted with a task of appointing a committee to determine the ‘life-threatening situation’. The Order also prescribes the composition of the committee.

The Order includes a specific directive for DME to ensure that the exceptional clause is not misused in any way which affects the implementation of the ban.

It is a moment of great pride for Tamil Nadu as it has become the first state in India to have guidelines for the protection of human rights of intersex infants. We congratulate the Health and Family Department for respecting the spirit of the historic judgment by the Madras High Court. Earlier this April, the Court had directed the government to pass a GO banning non-necessary medical surgeries on intersex children.

Recommendations
In our view, this is a first major normative step towards a comprehensive legal protection regime for intersex children. While we welcome this measure, we have few recommendations for strengthening the enforcement mechanism of the order.

Ø Need for a Clarification/Guidance Note:
Being an executive action, it is but natural for the GO to have limitations. Till the time a comprehensive law is enacted on this issue, the implementation of the Government Order can be strengthened by issuing a Clarification/Guidance Note which should include the following:

·        Listing specific medical surgeries which have been banned
·        Prescribe a Standard Medical Protocol and accreditation process for Specialized Centres
·        Prescribe Guiding Principles for the Committee constituted by DME
·        Rules for Conduct of Business for the Committee constituted by DME
·        Directive to give special attention to concerns of intersex community
·        Include a Penal clause for violation of the ban

Ø Committee to determine ‘life-threatening situation’ be made Multi-disciplinary and Include Medical Geneticist

The GO has prescribed the following composition of the committee which has to be constituted by DME- (1) Paediatric Surgeon/Urologist (2) Endocrinologist (3) Social Worker/Psychology Worker/Intersex Activist and a (4) Government Representative.

We recommend that Medical Geneticist must be included in the Committee so as to better inform the whole process of determining ‘life-threatening situation.’ World over, the view of medical geneticist is given due consideration on this subject.

Ø End discrimination based on nomenclature and terminology:
It should also contain a direction for medical professionals to ensure that intersex traits are not characterised as “disorders of sex development.” Further, intersex traits should not be considered as genetic defects/genetic disorders and terms like ‘gender dysphoria’ should not be used to characterise experience of intersex persons.

Ø Taking into account the health needs of intersex children
On 29 July 2019, the Hon’ble Health Minister of Tamil Nadu, India highlighted the urgent need to cater to the health needs of intersex children and persons in the State Legislative Assembly.

We recommend that all persons seeking psycho-social counselling, support and medical interventions relating to sex or gender should be given expert sensitive and individually tailored support by psychologists and medical practitioners or peer counselling. Such support should extend from the date of diagnosis or self-referral for as long as necessary. A special Intersex support group should be established involving social workers, intersex activists etc. with a helpline for counselling of parents, children, adolescents.

Way forward
At Srishti Madurai, we are delighted that our continuous advocacy efforts have contributed to policy-making process. After the judgment was delivered in April, we have made every possible effort to assist the government to draft the policy. Going forward, we hope to build on this progress with renewed energy and petition the Union Government to enact a Central law in this regard for protecting the dignity of intersex persons.

In particular, we are pleased to note that the government has adopted some of our recommendations in the Order like the definition of ‘intersex’. We are optimistic that our recommendations will be given due regarded by the government.

At this moment, we reiterate our commitment to work with the government at the state level and national level in making the legal protection regime more effective to fulfill the normative articulation of the NALSA judgment and the Madras High Court judgment.

We are hopeful that this development will inspire the Union Government to come up with a nation-wide comprehensive legislation which takes into account human rights of intersex persons across India. Such a law must recognize the normative principles as laid down in the judgments of the Supreme Court and also the Madras High Court. It is also necessary that the legislation is drafted in consultation with all relevant stakeholders. The consultation process must include deliberations on concerns of the intersex community, ethical and health related concerns of medical professionals and genetic scientists.     

Published on 28th August 2019, approved by the Executive Director of Srishti Madurai

Suggestions by Srishti Madurai The Transgender Person's Bill, 2019


I.                   Introduction
The aim of this submission by Srishti Madurai is to inform the Parliament of India about the required changes in the Transgender Bill, 2019 (“The Bill”). In the NALSA judgment, the Supreme Court had directed the Union and the state governments to undertake steps to fulfil the mandate of the judgment. In particular, the judgment declared the need for legal gender recognition of transgender persons. The Court also recognised the obligation of the government to address the needs of persons who did not conform to binary notion of gender identity- male or female. The judgment also recommended the government to adopt anti-discriminatory and social welfare measures.

With the bill, the Union government has an opportunity to ensure fundamental rights are guaranteed to all persons regardless of their sex characteristics and gender identity. However, the bill has not lived up to the mandate of the normative articulation in the NALSA judgment and hence, it suffers from serious flaws. In this submission, we hope to offer concrete suggestions regarding each of the chapters in the bill. Here’s a summary of our suggestions.

·         The title of the current bill should be “Gender Identity, Gender Expression and Sex Characteristics (Protection of Rights) Bill”.
·         The definition of ‘transgender persons’ needs to draw distinction between transgender persons and intersex persons. 
·         The bill should prohibit non-necessary and non-consensual sex selective surgeries and sex reassignment surgeries and also make it an offence.
·         The bill should also provide for setting up a Working Group on Intersex Persons.
·         The bill should clearly identify the specific health needs of transgender persons and intersex persons.

II.                Suggestions for Chapter-I
·         Title: The title of the current bill should be “Gender Identity, Gender Expression and Sex Characteristics (Protection of Rights) Bill”. The title of the current bill is “The Transgender Persons (Protection of Rights) Bill, 2019”. In our view, the title of the bill does not fulfil the mandate of the NALSA judgment which spoke about the need of legal protection of all persons who did not conform to binary notions of gender identity.

The current title of the bill is exclusionary in its current form as it does not accommodate all persons whose legal protection it seeks to recognise. The bill is also expected to address the needs of intersex persons. However, the current title does not give the impression that it accounts for protection of rights of intersex persons.

·         Definition of ‘Transgender persons’:
The current bill provides for the following definition:
“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 hormonetherapy or laser therapy or such other therapy), person with intersex variations, gender-queer  and  person  having  such  socio-cultural  identities  as  kinner,  hijra,  aravani  and jogta.”
The current bill conflates the condition of intersex persons with transgender persons by incorporating them under the same category. World over, there is a clearly recognised scientific distinction between the transgender persons and intersex persons. Barring few overlaps, the legal and welfare needs of intersex persons are different from those of transgender persons. Therefore, the definition should highlight this distinction between transgender persons and intersex persons enabling them to exercise the rights which they are entitled to. Some infants/persons born or living with intersex traits can live with a non-binary identity or may choose to

The bill should also provide for definition of key terms- ‘gender identity’, ‘gender expression’ and ‘sex characteristics’.

III.             Suggestions for Chapter-II-Prohibition of certain acts
This chapter essentially prescribes anti-discriminatory norms for persons and establishment under specified contexts.

·         End discrimination based on nomenclature and terminology: It should also contain a direction for medical professionals to ensure that intersex traits are not characterised as “disorders of sex development.” Further, intersex traits should not be considered as genetic defects or genetic disorders.

·         Prohibition of non-compulsory and non-consensual Sex Selective Surgeries/Sex Reassignment Surgeries: It shall be unlawful for medical practitioners or other professionals to conduct any sex reversal treatment and/or surgical intervention on the sex characteristics of a minor which treatment and/or intervention can be deferred until the person to be treated can provide informed consent: Provided that such sex assignment treatment and, or surgical intervention on the sex characteristics of the minor shall be conducted if the minor gives informed consent through the person exercising parental authority or the tutor of the minor. 

Such Medical or Surgical Treatment should be undertaken only in specialised centres which have Multi-disciplinary clinical team. The specific nature of the intervention should be taken as a consensus by this multi-disciplinary team of experts with experience in handling intersex conditions and should be guided by standard medical protocols. For exceptional cases, where the decision-making is difficult, should be referred to Government working group/ committee for approval.

IV.             Suggestions for Chapter III-Recognition of Identity of Transgender Persons
Even after the NALSA judgment which declared that medical procedures are not a necessity for self-identification, the Health Ministry has admitted that medical procedure including sex reassignment surgeries are being done in India. The Ministry has given the justification that it is only done after thorough assessment of the patient, obtaining justification for the procedure planned to be conducted with the help of appropriate diagnostic test and only after taking a written consent of the patient/guardian.

When this response was presented before the High Court of Madras in the case of Arunkumar and Sreeja v. The Inspector General of Registration and Ors., it slammed the Health Ministry and imposed a ban on the practice of SRS on intersex infants/children. The Court held that the consent of the parent cannot be considered as the consent of the child. Hence, such surgeries should be prohibited.

Recognising the mandate of the Madras High Court judgment and the NALSA judgment (Direction 5, para 129)., the bill must ban such medical procedures to ensure that transgender persons and intersex persons are not compelled to undergo such unnecessary medical procedures for recognition of identity.

V.                Suggestions for Chapter IV-Welfare Measures by Government
The bill should prescribe specific measures to address education needs and health needs of transgender and intersex persons. Further, the bill should also prescribe provisions to ensure compliance of anti-discrimination measures in labour markets. In each sector, there should be specific laws prohibiting discriminatory practices on the basis of gender identity, gender expression and sex characteristics.

The Mental Healthcare Bill, 2016 and the Rights of Persons with Disabilities Bill, 2014 provide an acceptable template for this chapter as they recognise specific areas of welfare such as education, health, employment, insurance, pension, food security and sanitation.

VI.             Suggestions for Chapter V-Obligations of Establishments and Other Person
In this section, the right to bodily integrity of transgender persons and intersex persons must be recognised in a way that no establishment shall ever compel any individual to undergo any non-consensual and non-necessary medical procedure.

VII.          Suggestions for Chapter VI- Education, Social Security and Health of Transgender Person
·         Education: In this chapter, specific revision of existing laws and regulations must be mandated so as to prevent discrimination in the form of bullying or harassment in educational institutions based on gender identity and sex characteristics. Special measures must be taken to ensure that transgender persons and intersex persons do not face any discrimination while appearing for competitive exams for jobs in public services. Further, this provision should prescribe training of schoolteachers and staff in educational institutions. The curriculum of textbooks also needs to be revised so as to ensure inclusive education.

·         Health: In this chapter, distinct health needs of transgender and intersex persons needs to be identified. Genetic counselling/consultation to be integral part of clinics for intersex persons. Training programs should be designed suitably to be address intersex/DSD issues.
All persons seeking psycho social counselling, support and medical interventions relating to sex or gender should be given expert sensitive and individually tailored support by psychologists and medical practitioners or peer counselling.

The government should introduce indigenous medical knowledge like ayurvedic counselling along with allopathic medicine. Our civilizational ethos never treated conditions of gender variants as any kind of disorder/mental health/dysphoria.

·         Society Security: Social security needs of the transgender persons and intersex persons must be clearly identified and listed down in the law in a non-exhaustive manner.

The government should be obligated by law to prepare resource and informative materials in all Indian languages pertaining to the awareness on issues related to transgender persons and intersex persons. This material must be disseminated to parents, educational institutions and to the general public. In addition to preparation of material, the Ministry in charge must be obligated by law to conduct adequate awareness programmes in all parts of the country on regular interval through different public authorities.

VIII.       Suggestions for Chapter VII- National Council for Transgender Persons
This chapter provides for the institutional framework for protection of rights of transgender persons. There should be a specific working group for intersex persons. It should include member of the medical profession as well as genetic scientists.

Composition of Working group on Intersex:

·         The working group shall consist of a Chairperson and nine members.

·         Two persons as chair. One- Medical geneticist- 15 years of experience. Second- The Chairperson shall be a Professor or Senior Associate Professor of Paediatric surgery from a Government medical College with at least twelve years of experience in dealing with intersex conditions
·         The nine members shall be five medical personnel from government or private sector (paediatrician, paediatric surgeon /urologist, paediatric endocrinologist, genetic scientist, plus a doctor representing department of health) and four non-medical experts (one human rights expert, one expert in Community Health and medical ethicsist one medical sociologists/ psychologist and one lawyer specialised in Indian Constitutional law.

IX.              Suggestions for Chapter VIII-Offences and Penalties
·         The law should prescribe punishment for those persons and establishment who perform any non-consensual and non-necessary sex selective surgeries on infants/children.

Statement from Srishti Madurai welcoming the Hon'ble Health Minister Announcement to Introduce State Intersex Policy in Tamil Nadu


99th Point of the announcement at Tamil Nadu State Legislative Assembly 2019


Srishti Madurai welcomes this week announcement (17 July 2019) at Tamil Nadu State Legislative Assembly (State Senate) by the Honorable Health Minister that Tamil Nadu government will be drafting guidelines for intersex surgeries with the help of stakeholders and experts. In addition, the government has also shown its commitment to cater to the health needs of intersex persons. This is a significant development ¬as it paves the way for Tamil Nadu to be the first state in India to have guidelines for protection of human rights of intersex infants.

Earlier this month, Srishti Madurai along with Intersex-Asia had organised the first-ever policy briefing meeting in Chennai. The meeting was aimed at bringing persons from intersex community, medical professionals and genetic scientists together to assist the government in drafting the guidelines for intersex surgeries. (On Media: Chennai: Meeting on intersex rights to be held on Friday - The Times of India)

We hope that the guidelines adopted by the Tamil Nadu government are drafted in alignment with the judgment of the Madras High Court which highlighted the constitutional rights of intersex infants/children.

We pledge our full support to the government of Tamil Nadu in drafting the guidelines with a hope that the guidelines become a model for the entire country to follow. If accepted nationally, India will be the third country in the world after Malta and Taiwan to have a legal protection regime for intersex persons.

BRIEFING PAPER: REGULATION OF SEX SELECTIVE SURGERIES ON INTERSEX INFANTS/CHILDREN - Prashant Singh (Advocate, Supreme Court of India)


Background
On 22nd April 2019, the Hon’ble High Court of Madras delivered a momentous judgement banning the practise of Sex Selective Surgeries on Intersex infants/children. The judgment is regarded as historic as it was the first instance when the judiciary recognised the right of intersex persons with respect to bodily integrity.  
To ensure enforcement of the judgment, the Court directed the Tamil Nadu government to pass a ‘Government Order’ (G.O.) to ensure the prohibition of such surgeries.
The Court also directed the Health and Family Welfare department of the government to file a compliance report regarding the enforcement of the ban within eight weeks from the date of receipt of the judgment.
With a view to assist the government in drafting the G.O., a policy briefing meeting was organised by Srishti Madurai in association with Intersex Asia on 5th July 2019 in Chennai. This briefing paper has been prepared to provide an overview of the whole issue and also record the concerns raised by different stakeholders in the meeting.
Outline
This briefing paper has been divided into two parts:
·         Part-I will provide a brief summary of the Madras High Court judgment.
·         Part-II will give an overview of the deliberations in the meeting.
·         Part-III records the resolution adopted at the meeting and proposed action plan
·         Part-IV contains a proposal for organising a national level stakeholders’ consultation on this issue.
PART I- SCOPE OF THE JUDGMENT OF MADRAS HIGH COURT
Arunkumar and Sreeja v. The Inspector General of Registration and Ors.
Issues:
Broadly, the judgment is centred around two issues:
1.   Validity of the decision of refusal to register the marriage between petitioners
This case was borne out of an appeal made by petitioners-Arunkumar and Sreeja (transwoman) against the decision of the Registrar and Inspector General of Registration for refusing to register their marriage. The Court had to examine the validity of the refusal as per the mandate of the Hindu Marriage Act, 1955.
2.   Validity of practice of forced sex selective operations on intersex infants.
The Court also took up the practice of forced sex selection surgeries while recognising the work of Gopi Shankar. The Court was examining the validity of consent given on behalf of intersex infants for undergoing such surgeries in light of the judgment given by the Supreme Court in NALSA v. Union of India.
Ruling:
1.   Validity of the decision of refusal to register the marriage between petitioners.
In the view of the court, the marriage was valid as per Section 5 of the Hindu Marriage Act, 1955 and hence, the Registrar of Marriage was bound to register the same. The respondents had argued that memorandum of registration presented by petitioners did not fulfil the statutory requirement under Section 5 of the Hindu Marriage Act, 1955. Therefore, the Registrar was well within his power to refuse the registration of marriage.
The Counsels on behalf of the government gave the following reasoning in support of their decision to disallow registration of marriage.
[A]s per Section 5 of the Hindu Marriage Act, the bridegroom must have completed the age of 21 years while the bride must have completed the age of 18 years at the time of marriage. To understand the meaning of expression “bride', in the order impugned in this writ petition, Oxford Advance Learner's Dictionary of Current English was referred to. The term “Bride” can only refer to a “Woman on her wedding day”. In the case on hand, the second petitioner Srija is a transgender and not a woman. Thus, the statutory requirement set out in Section 5 of the Hindu Marriage Act, 1955 has not been fulfilled.
The Court rejected these arguments and made the following observations.
Both the petitioners herein profess Hindu Religion. Their right to practice Hindu Religion is recognised under Article 25 of the Constitution of India. The Hindu Marriage Act is a personal law of the Hindus. When the right of the transgender persons to marry has been upheld by the Hon'ble Supreme Court, in the very nature of things, they cannot be kept out of the purview of the Hindu Marriage Act. One can have a civil marriage. One can also have a sacramental marriage. The petitioners' marriage was solemnized in a temple. Therefore, their fundamental right under Article 25 has also been infringed in this case.
The Court held that the decision of refusal to register the marriage between the petitioners was discriminatory on account of sexual orientation or gender identity and therefore, it violated Article 14 of the Constitution of India which guarantees equality before law and equal protection of law.
While arriving at this conclusion, Justice Swaminathan referred to the ruling in NALSA v. Union of India wherein the Supreme Court upheld the transgender persons' right to decide their self-identified gender. The central and State governments were directed to grant legal recognition of their gender identity such as male, female or third gender.
In addition to the, the court has also referred to the judgment in the case of Justice K.S. Puttaswamy v. Union of India. In this judgment, the Court made the following observations:

Indeed, the Court has noted it would be contradictory to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society.
In a judgment laced with references from ancient Indian epics as well as landmark apex court decisions, the Madras High Court conclusively upheld the right of the
2.   Validity of practice of forced sex selective operations on intersex infants.
With respect to the validity of such operations, the judgment recalled the mandate of the NALSA judgment which declared the following:

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.
Recognising the mandate of the above-mentioned ruling of the Apex Court, the judgment directed the Government of Tamil Nadu to issue a Government Order enshrining the aforesaid mandate so as to effectively ban sex reassignment surgeries on intersex infants and children. Further, the Madras High Court also directed the Health and Family Welfare Department to file a compliance report before the Registry within a period of eight weeks from the date of receipt of a copy of this order.

The judgment has also acknowledged the report of World Health Organisation titled- ‘Sexual Health, Human Rights and the Law’ which has called for calls for a deferment of intersex genital mutilation (IGM) until the intersex persons are old enough to make decisions for themselves.

With respect to the stigma and public awareness on this issue, the Court made the following remarkable observation:

Any intersex child is entitled to and must stay within the folds of its family. The running away from the family to the margins and beyond is a fatal journey that must be arrested. Time has come when they are brought back from the margins into the mainstream. This is because even though the transgender community is having its own social institutions, the stories we hear are horrendous. The parents must be encouraged to feel that the birth of an intersex child is not a matter of embarrassment or shame. It lies in the hands of the Government to launch a sustained awareness campaign in this regard.
For the foregoing reasons, the judgment given by the Madurai bench of the Madras High Court is being hailed as a path-breaking judgment.


  1.  

PART II- DELIBERATIONS OF THE POLICY BRIEFING MEETING
Scholars and practitioners from legal and medical arena were invited to deliberate on the Draft G.O. prepared by Gopi Shankar (recognised in the judgment for his work on intersex human rights) of Srishti Madurai. The list of speakers included:

·  Dr. Beela Rajesh, I.A.S, Secretary, Health and Family Welfare Department Government of Tamil Nadu.

       Dr. S. Ramesh, President, Indian Association of Paediatric Surgeons (ASI)

·         Dr. Anuradha Udumudi, Co-founder, GeneTech – Renowned Genetic Scientist

·         Dr. Darez Ahmed I.A.S - Mission Director, State Rural Health Mission

In addition to the above, following persons also participated in the discussion.
·         Dr. Jagan Mohan, Chief Plastic Surgeon (Head of Transgender Person’s Clinic), Government of Tamil Nadu.
·         Dr. Mohan Kumar, Associate Professor, Institute of Child Health
·         Dr. Prakash Agarwal, Professor of Pediatric Surgery at Sri Ramachandra Medical College and Hon. Secretary, Indian Association of Pediatric Surgeons
·         Dr. Ramesh Babu, Chairman, Association of Pediatric Urology
·         Sh. Ravi Kumar, Sub-editor, Tamil The Hindu
·         Dr. Srinivas Udumudi, Co-founder, GeneTech
·         Dr. Xavier, Nodal Officer, Directorate of Medical Education
Dr. R. Velmurugan, Senior Professor of Paediatric Surgery at Institute of Child Health.

Evening Meeting

·         Esan Regmi – Co Chair of Intersex Asia
·         Abhijith Jose- Nodal Officer, Tamil Nadu Rural Health Mission. NHM.
·         Prashant Singh – Advocate, Supreme Court of India, New Delhi.

Broad Outline of the Draft G.O.
The draft G.O. which was the focus of the deliberations in the meeting is divided into 11 parts:
             I.        Title and Statement of Object and Reasons
           II.        Definitions of key phrases
          III.        Recognition of fundamental right to dignity
         IV.        Right to bodily integrity and physical autonomy
           V.        Treatment Protocol
         VI.        Power of amendment of the G.O.
        VII.        Health Services
      VIII.        Applicability of the G.O. on the operation of other laws, rules or policies
         IX.        Fixing the responsibility of the government to spread awareness
           X.        Code of conduct for public officials dealing with cases related to G.O.
         XI.        Format of the Declaratory Public Deed

Salient points made by Gopi Shankar, Srishti Madurai
a.   Background:
                                         i.    Definition of Intersex
                                       ii.    Ignorance of medical ethics
                                      iii.    Impact of sex determination operations on infant children
                                      iv.    Selection of Gender Identity- an issue of individual choice
                                        v.    Preference of Intersex persons to live as Gender-queer person (non-binary)
                                      vi.    Difference between sex identity, sex determination, gender identity and sex characteristics law (SOGIESC rights)- term popularized by ILGA
b.   Purpose:
                                         i.    Constructive policy for proposal to enact a nation-wide legislation
                                       ii.    Distinction between Transgender (Gender identity) and Intersex (Sex identity)
                                      iii.    Discrimination in sports against women
1.   The case of  Santhi Soundarajan and Dutee Chand (Hyperendrogenism)
2.   IAAF’s rule and CAS’s judgment
                                      iv.    Need for an acceptable medical nomenclature on basis of human rights

Salient points made by Dr. Ramesh S, Indian Association of Paediatrics Surgeons

a.    Considerations of Clinician
                                     i.        Clinical Impression
                                   ii.        Lab. Tests
                                  iii.        Immediate Threat
                                  iv.        Intermediate issues
                                    v.        Long Term follow-up
                                  vi.        Parental Preference
                                 vii.         
b.   Transition care-biggest concern of pediatrics
c.    Social support
d.   All medical colleges- Must have multi-disciplinary process
e.    Ethics questions:
                                         i.        Is it ethical to withhold treatment for ALL Intersex conditions to protect the interest of a small percentage with Gender Dysphoria?
                                       ii.        How to handle Parental Expectations?
                                      iii.        What are the social implications?

f.     Concerns of the Medical Profession
                                     i.        Grouping & Classification of DSD is for academic purposes & not for legal purposes
                                   ii.        Strong need to separate Embryologic / Chemical aberrations from Gender Dyspohoria
                                  iii.        Difference between Gender Assignment & Gender Re-assignment
                                  iv.        Difference between Genuine Medical Professionals & Unscrupulous Quacks
                                    v.        Medical & Surgical Emergencies need to be addressed soon
                                  vi.        Continuing Follow-up to support the child
                                 vii.        Transition care when they grow up
                               viii.        Uncommon diseases being handled only by experienced staff and major institutions
                                  ix.        Inappropriate Secondary Sexual Characteristics
                                    x.        Cancer in the retained Gonad
                                  xi.        Knowing the Gender of the Child is a social Emergency
                                xii.        Gender Plays a Significant Role in the Society
                               xiii.        What about Gender Related Privileges

g.    Recommendations
                                         i.        One Apex Authority- Clinical persons, NGOs, Medico-social expert, Legal, Govt. reps.
                                       ii.        Standard treatment guidelines- which do not require scrutiny
                                      iii.        Periodic review of policies
                                      iv.        Complicated cases only operated by senior clinical persons
                                        v.        Registered multi-disciplinary clinics across the country
                                      vi.        Regular follow-up
                                     vii.        Social support
                                   viii.        Method to identify quack professional
h.   Definition to define medically unnecessary
i.     Need to have a helpline

Salient points made by Dr. Anuradha Udumudi

·         Develop a uniform nomenclature: Medical professionals, scientists and non-medical community should use a uniform nomenclature.
·         Genetic counselling/consultation to be integral part of intersex clinics: Training programs should be designed suitably to be address intersex/DSD issues.
·         Undertake Research initiatives: Identification of knowledge gaps in current knowledge and take research initiatives
·         Develop patient education material in Indian languages: Knowledge about genetics in simple language would go a long way in promoting sensitization in society.
·         Take a holistic approach towards genetic analysis: Medical practitioners should not have look at genetic analysis purely as a test to determine and assign gender. The tests must be carried out with a holistic approach, to understand syndromic presentation and associated complications, and finally to arrive at an individualized management plan for condition diagnosed.
·         Increased focus on analyzing genetic data: Genetic data and analysis should empower physicians, affected individual, families and physicians alike in taking the best possible decisions. It may also help navigate surgical and hormonal decision making in DSD.
·         Emphasis on confidentiality and integrity: Genetic analysis should and will contribute immensely to holistic health care and clinical research and must always be performed with sincere respect for patient’s confidentiality and integrity.
·         Promote research on DSD: There is an urgent need to not only improve and accelerate the path to an accurate diagnosis but also to initiate cutting edge research on Difference of Sex Development conditions.



PART III: RESOLUTION ADOPTED AT THE BRIEFING MEETING
The discussion at the policy briefing meeting culminated with a resolution affirming a commitment to work towards strengthening the legal and policy framework regarding rights of intersex children. All the stakeholders were in complete alignment with the reference to fundamental rights in the Madras High Court judgment.
All the participants unanimously agreed that a change is required in the legal and policy framework to ensure that intersex children are not deprived of their fundamental rights. The participants also highlighted the need for greater acceptance of alternative sexuality in the mainstream.

  1. Fundamental Right to Gender Identity:  The NALSA decision had stated that transgender persons have a fundamental right to decide their gender identity as either man, woman or third gender. Incidentally, the court also found support for this legal proposition in Hindu traditions and modern neuroscience which validates the argument of internal and external gender mismatch experienced by the transgender population.

  2. Fundamental Right to Gender Expression: The court reiterated NALSA in saying that gender expression and presentation are protected under Article 19(1(a) of the constitution, and the State could not “prohibit, restrict or interfere” with a transgender person’s expression of the same.

  3. Right to Equality: The court also referenced NALSA to reiterate that the fundamental right to equality was available to “all persons” and not just men and women. Therefore, Article 14 (equality) finds discrimination on the basis of gender identity unconstitutional.
  4. Dignity and Privacy: The court also found, following NALSA, that the gender identity discrimination offends the fundamental right to dignity and privacy protected under Article 21.
Actions on part of Tamil Nadu Government
The primary aim for the briefing meeting was to arrive at a consensus regarding the broad framework of the Government Order prohibiting sex selective operations. The judgment delivered by the Madras High Court provides a set of guiding principles for the same.
All the stakeholders who participated in the meeting concurred with the principles laid down by the High Court judgment. Therefore, it is expected of the Tamil Nadu government to pass a Government Order which is in alignment with the spirit of the judgment.

·         Prohibit Sex Selective Surgeries on Intersex children/infants
The State government of Tamil Nadu has a golden opportunity with this government order to present a model law for the entire country. In this regard, it is necessary to consult all stakeholders to arrive at a consensus regarding the policy framework which is in tune with our civilizational values as highlighted in the Madras High Court as well as the constitutional position laid down in the NALSA case.
·         Promote awareness on alternative sexuality to address discrimination
It is the duty of the government to also fulfill the mandate of the NALSA Court judgment where it highlighted the need to spread awareness on issues related to SOGIESC rights. Also, the government should take positive steps to ensure social security safeguards for intersex persons.

Actions on part of Union Government
Recognizing the limited mandate of the Madras High Court judgment and the need for a nation-wide legislation of the subject, it is hoped that the Union Government will introduce a bill in the Parliament recognizing the human rights of intersex infants/children as outlined above.

The Constitution exists to protect individual autonomy, dignity, and self-determination. The fundamental rights chapter defends, advances, and fulfills these constitutional values by recognizing and affirming a set of inalienable rights. It does this not only by erecting a wall between the individual and the State, and prohibiting the State from breaching that wall (except in certain limited circumstances), but also by imposing positive obligations upon the State to ensure that fundamental rights become an effective reality for every Indian which include intersex persons.

In line with the constitutional values and our civilizational ethos, the Union government has the responsibility to take steps for protection and promotion of human rights of intersex persons.

·         Enact a nationwide legislation
The Union government must come up with a nation-wide legislation to ensure the right to bodily integrity is guaranteed to intersex person including infants/children. As per the Puttaswamy judgment, right to bodily integrity- a basic feature of right to privacy has been recognised as a fundamental right. Further, the NALSA judgment has also given constitutional status to the right to freedom of gender identity and gender expression.

In view of the above, the Union government must come up with a nation-wide legislation recognising the normative principles as laid down in the judgments of the Supreme Court and also the Madras High Court. It is also necessary that the legislation is drafted in consultation with all relevant stakeholders. The consultation process must include deliberations on concerns of the intersex community, ethical and health related concerns of medical professionals and genetic scientists.
·         Constitute a SOGIESC Unit in the Social Welfare Ministry plus Women and Child Development Ministry
With a view to affirm the mandate of the Supreme Court in the NALSA judgment, the Union government must formulate a dedicated department in the concerned ministries at the national level for ensuring implementation of SOGIESC rights.
·         Actively defend and develop the legal framework relating to SOGIESC rights at the international level
The Indian government should launch a national-level consultation process with experts on SOGIESC rooted in Indian knowledge traditions to develop research on issues related to rights of intersex persons. Further, India should actively participate in the defence and development of international norms on this issue.

Actions on part of Stakeholders
At individual as well as group level, all the stakeholders present in the meeting have agreed to be part of a national-level steering committee to advocate for legislation at the national level.

Srishti Madurai- the lead organiser of the meeting along with Intersex-Asia will ensure formation of national level steering committee and also pursue the advocacy efforts at the national level.

We also thank COC Netherlands and Ministerie van Buitenlandse Zaken 
(Ministry of Foreign Affairs (Netherlands)) for their support.