By Kritika Vyas
(Student of ILS, Pune)
Introduction
Intersex people face discrimination in society for conforming to the standard biological sex traits. Apart from all the discrimination that they have to face, their Human Rights are been violated from their very birth. They are often seen as “abnormal” and to fix them “genital normalizing” surgeries (Intersex Genital Mutilation) are used without their consent, which not only takes away their Right to Choose but also affects them physically and psychologically. This article discusses the Intersex Genital Mutilation, its harm and what is done and could be done to prevent it.
Intersex and Intersex Genital Mutilation
Intersex issued as an umbrella term for a different variation of congenital conditions (congenital genetic, hormonal and physical features) that lead to ambiguity about a person’s biological sex i.e. it may be seen as male with female features, female with male features, or there are no clearly defined sexual features at all. But a majority of individuals who are born with intersex variations don’t have physical differences which are externally visible and things like hormones, internal organs or chromosomes are not evident when the child is born. For most of these children, their differences become apparent only when they reach the age of puberty or reproduction or paternity testing reveals their intersex. In the late nineteenth and early twentieth century, physicians used to determine sex solely based on a person’s gonads, which means a person with ovaries was considered a female, and a person with testicles was considered a male.
The surgery i.e. Intersex Genital Mutilation (IGM) is carried out upon the genitals of infants and children by either stating cultural or religious reasons or medical needs is cited for the justification of the surgery but the actual evidence of this is very slim. The practice of IGM includes non-consensual, medically unnecessary, cosmetic genital surgeries which are irreversible, and other harmful medical procedures based on the preconception that they would not be considered as “normal” children, without any evidence of any benefiting the children concerned. Typically different forms of IGM include “masculinising” or “feminising”, “corrective” genital surgery, sterilising procedures, imposition of hormones, vaginal dilations, forced genital exams etc.
Harm incurred by the practice of Intersex Genital Mutilation
IGM Practices have been observed to cause severe lifelong irreversible physical as well as mental pain and suffering, which include painful scarring, painful intercourse, significantly elevated rates of self-harming behaviour, lifelong dependency on artificial hormones, loss or impairment of sexual sensation, impairment or loss of reproductive capabilities, and suicidal tendencies, increased sexual anxieties, lifelong mental trauma and suffering, etc.
In May 2014, the World Health Organization issued a joint statement with the OHCHR, UNDP,UN Women, UNICEF etc. on “Eliminating forced, coercive and otherwise involuntary sterilization”. This report referred to the involuntary surgical “sex-normalising or other procedures” on “intersex persons”. It also questions patients’ ability to consent, the medical necessity of such treatments and a weak evidence base. It also recommended a range of guiding principles for medical treatment, including ensuring non-discrimination, accountability, ensuring patient autonomy in decision-making and access to remedies.
UN Treaty Monitoring Bodies responding to testimonies by survivors of IGM practices provided by individuals as well as institutions in countries around the world have cited certain Treaty Articles(Concluding Observations on the Sixth Periodic Report of Australia, paras. 25–26)on protection from discrimination, torture and experimentation, and on security and liberty, privacy, and equality before the law, issued multiple recommendations in relation to such interventions.
It recommended the – States to guarantee bodily integrity, self-determination and autonomy to intersex children and to protect intersex violence and harmful practices (like IGM). It also recommended the States to adopt legislation to prohibit medical treatment on intersex children without consent unless an absolute medical necessity and also States that to repeal all types of regulations, legislation and practices allowing any form of forced surgery and strengthened safeguards for intersex people (especially infants and children). Most importantly to ensure that intersex people’s personal integrity and reproductive sexual health rights are respected.
Indian Scenario
According to the United Nations, about 1.7% of children are born intersex and according to LGBT+ rights groups in India at least 10,000 intersex babies are born each year, but infanticide, abandonment and mutilation are the most common Human Rights violations which are incurred towards them but the number could be much higher as parents often do not register their baby as intersex.
IGM highly violates the Human Rights of an intersex individual as it takes away their Right to choose one’s gender identity which is integral to the right to a life with dignity, which falls within the scope of the Right to Life under the Indian Constitution (Article 21).
To ban Sexual Reassignment Surgeries (SRS) on intersex infants in 2017, Srishti Madurai sent a petition to the National Human Rights Commission of India (NHRC) which was forwarded to the Ministry of Health and Family Welfare in the Union Government. The Union Government stated that the medical fraternity is aware of the Intersex persons in the community and any kind of medical procedure including SRS is done only after a thorough assessment, obtaining justification through appropriate diagnostic test and taking written consent from the patient/guardian.
In the case of Arunkumar vs. The Inspector General of Registration, the Madras High Court said that surgeries performed on intersex individuals with the consent of parents are to be prohibited in Tamil Nadu and which was hailed as a turning point in intersex human rights in India. And after this case, the Tamil Nadu government ordered a ban on genital surgeries except in “life-threatening situations,” and also warned the surgeons who are deliberately misinterpreting this clause to continue performing medically unnecessary operations.
But the Transgender Persons (Protection of Rights) Act, 2019failed intersex persons and address the concerns relating to them as the process of recognition of intersex person’s identity is flawed. The Act must have included separate provisions for intersex persons because their health concerns and many other issues need to be addressed separately.
On the 13th of January, 2021, The Delhi Commission for Protection of Child Rights recommended the Delhi government to ban gender-affirming surgeries performed on intersex infants and children. But the surgeries continue to prevail in (most parts of) India– as long as a parent or legal guardian provides consent for them as there is no legislation or judicial decision that bans IFM nationwide.
Now, the most important thing to do is to criminalise and prohibit the practice of non-necessary medical interventions on intersex persons, in the absence of free, prior and fully informed autonomous consent provided at a sufficiently mature age to guarantee bodily integrity, self-determination and autonomy and which supported the decision-making mechanisms and strengthened the safeguards are provided all over India. Also, it is important to raise awareness of such practices as harmful, ensures the training of relevant professionals, and provides families with intersex children with adequate counselling and support.
Conclusion
To sum up, everything that has been stated above, Intersex people are human beings like any other cisgender person and their Human Rights have been violated for years in the name of genital normalizing surgeries/IGM. Although internationally and nationally steps have been taken to protect their Human Rights by banning the practice of IGM but still there is a lot more to do and a long way to go.