DCPCR proposal to ban 'sex-selective' surgeries on intersex children will help shed light on taboo subject, says petitioner

The Delhi Commission for Protection of Child Rights (DCPCR) has recommended that the Delhi government ban medically unnecessary sex-selective surgeries on intersex infants and children, except in cases of life-threatening situations.

The DCPCR’s order  from January  comes in response to a petition filed by Dr Aqsa Shaikh, who is an associate professor of Community Medicine at Hamdard Institute of Medical Sciences and a proud transgender woman working on LGBTQIA+ rights, rights of Persons with Disability, and mental health; and her colleagues  Dr Satyendra Singh and Air Cmde. Dr Sanjay Sharma.

The plea, shared with Firspost by Dr Aqsa Shaikh, sought a ban on  sex assignment surgeries on intersex children  (except to overcome life-threatening situations)  and  the  “two finger-test”  on victims of sexual assault.

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It reads,  “Our society treats intersex people as disabled by approaching intersex through a medical model and  ‘reducing’  intersex people to an  ‘impairment’  leading to medical interventions that can lead to long-term impairments and requiring lifetime medical care.”  It further added that  “Most of the time these interventions are often conducted without prior, free and fully informed autonomous consent. The same concern has been highlighted in the Committee of independent experts on the Rights of Persons with Disabilities (CRPD) report to Govt of India where they used the instances of  ‘mercy killings of intersex children’.”

According to Shaikh, the petition was initially sent to the Delhi state government in October 2019 and DCPCR was approached in August 2020 when the state government failed to respond. She states that in the absence of a pan-India law to protect intersex children from sex normalising surgeries, the matter was urgent and required immediate attention. The DCPCR order was delayed due to bureaucratic delays in view of the COVID-19 pandemic.

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The DCPCR order states,  “The commission is of the considered opinion that the Government of Delhi should declare a ban on medically unnecessary, sex-selective surgeries on intersex infants and children except in cases of life-threatening situations and advises the government accordingly.”

Elaborating on the exception of  ‘life-threatening situations’, Shaikh mentioned that intersex conditions can be of varying types and in cases of life-threatening conditions, interventions must be done to save the life of the child, but not to introduce cosmetic effects or to do sex normalising surgeries.

In cases of non-life threatening situations, there should be a shared decision making process between the intersex person, their family and the doctor. This is possible only when the person reaches maturity, she added.

The DCPCR, in its order, took note of the Article 39(f) of the Indian Constitution that enables the State to direct its policy towards providing to children such opportunities and facilities that is necessary for a healthy, free and dignified life and to ensure that their childhood and youth are protected against moral and material exploitation. It also cited the Madras High Court judgment banning sex reassignment surgeries on intersex infants and children in Tamil Nadu; the first state in India to do so.

The commission also referred to the Supreme Court’s judgment in the National Legal Services Authority vs. Union of India of 2014, which stated that  ‘no one shall be forced to undergo medical procedures, including sex reassignment surgeries, sterilisation or hormonal therapy, as a requirement for legal recognition of their gender identity’

On being asked if she feels there has been any positive change strengthening the rights of transgender and intersex persons since the NALSA judgment, Shaikh said while the NALSA judgment was focused on Transgender persons, the Transgender Persons Act of 2019 caters to intersex persons as well, but the act has failed to bring any positive change in the lives of intersex persons.

“By merging  intersex persons amongst transgender community it does great disservice to the rights of intersex people. The two communities and their needs though overlapping in a few aspects are principally different.  We hope that the subsequent amendments in the Act will be mindful  of this,”  she adds about the Transgender Persons Act 2019.

The commission’s directions came after much deliberations and recommendations from the Delhi Medical Council and organisations such as The Humsafar Trust, Haq: Centre for Child Rights, Srishti Madurai and Intersex Human Rights India, all of which stressed on the long-term physical and mental harm caused to intersex children by uninformed and unnecessary medical interventions.  

The DCPCR has also recommended that the committee, constituted by the department of Health and Family Welfare and Social Welfare of the Delhi government to look into the matter, must include people who are intersex and belong to similar marginalised background as formal members to ensure the community is adequately represented in the decision-making process. The committee is expected to submit a bi-monthly progress report and final submission within three months.

According to Shaikh, the DCPCR recommendations bring to light the issue of sex normalising surgeries, which is often treated as a taboo topic in the society, and helps initiate discussions and deliberations that will gradually lead to framing of laws to protect intersex children.

Speaking of the policy change at the Central and state level, she said,  “Since health is a subject in the concurrent list, both the state governments and Central government need to make relevant laws, policies and schemes for addressing the issues of Intersex persons. The role of various government hospitals in this regards is paramount.”

“We need seriousness and legal backing, that of the level of prevention of sex determination tests under Pre-Conception & Pre-Natal Diagnostic Techniques (PCPNDT) Act, for intersex persons too to really ensure that the change percolates to the ground level,”  Dr Aqsa added.