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.
