AuthorRajam, Shardha


As the movement for recognizing queer rights in India gains momentum, it is critical to evaluate the rights of a particularly neglected group within the LGBTQIA+ community: intersex children. Since 2018, the Indian Supreme Court has decriminalized consensual adult same-sex relationships and has recognized the right to privacy--including decisional and bodily privacy--as a fundamental right guaranteed by the Indian Constitution. However, even after these crucial decisions, intersex children are still subject to medically unnecessary surgeries without their consent. Many suffer long term consequences from such disentitlement. In this Article we examine the rights of children from an ethical and legal perspective in the Indian context. Drawing on classical, feminist, and queer bioethics frameworks, we briefly review the ethical violations inherent in performing genital surgeries on intersex children without their consent. We analyze India's international legal obligations and argue that those obligations fill a significant gap in India's jurisprudence on sexual minorities. We also analyze the domestic legal framework, studying key decisions of various high courts, including the Indian Supreme Court, that have recognized the right to self-determination of gender identity. Finally, we suggest possible alterations to the current legal framework that, if implemented, will help further legal recognition of the rights of intersex children.


Sex is a spectrum, (1) and the term intersex refers to the range of naturally occurring variations in sex characteristics that do not fit within the narrowly defined feminine and masculine sex traits. (2) Children with intersex traits do not possess normative feminine or masculine bodies, (3) and this often has tremendous social consequences for the child. Historically, such children have been branded as deviants and their bodies have been subjected to immense public scrutiny and violence. (4) Children born with intersex traits are seen as having bodies that require "course-correction," i.e., bodies that must be made to fit within the gender binary. (5) Cosmetically "normalizing" surgeries are imposed on intersex children regularly in an effort to make them "recognizably human," in Judith Butler's sense. (6) Essentially, such surgeries are often considered a prerequisite for a livable life, and are viewed as a pre-cursor to being recognized as a human being. (7) It is important to note that such surgeries are significantly different from other invasive but medically necessary forms of treatment that are carried out to prevent immediate medical risks to a child. (8) Cosmetically normalizing surgeries do not fulfill any immediate medical need of an intersex child and they are a by-product of stigma toward the intersex body. (9)

These surgeries are possible partly because parents rarely conceptualize sex as a spectrum and usually believe that clearly masculine or feminine markers are "normal"--a belief commonly confirmed by medical care providers." (10) Having "normal" genitalia is presented as desirable and in the best interests of the child, and surgeries are justified as necessary to "correct" bodies, reduce social stigma, and avoid psychological harm as children grow older in a world that favors normatively masculine and feminine bodies. (11) Thus cosmetically "normalizing" procedures are suggested even when intersex traits are not a physical health concern.

However, as this Article argues, "normalizing" cosmetic procedures violate the child's right to life, liberty, and security of person, to bodily integrity, to health, and to self-determination of sexual orientation and gender identity, amongst other rights. These surgeries, which are a result of patriarchal policing, are premised on assigning sex "correctly" and distributing gender accordingly, notwithstanding the fact that a child may grow up and identify with a gender other than that assigned at birth. (12) Sex here refers to the clear and unambiguous assignment of genitalia, thus implying that when a child is born with both masculine and feminine reproductive genitalia, the same needs instant rectification. (13)

In addition to the real possibility of incorrect assignment of sex at birth, these invasive procedures may leave persons feeling traumatized. (14) Miranda Fricker's work on powerlessness and social interpretation is useful both in understanding the lived experiences and realities of persons whose bodies have undergone "corrections" and in explaining the stigma faced by intersex persons. (15) Fricker uses the terms "hermeneutical injustice" to identify this particular kind of disentitlement, where a person's social experience is significantly distorted due to biases and prejudices existing in a particular society. (16) It has also been argued that some instances of feminizing the body are experienced as abuse. (17) For example, vaginal construction involves dilating the child's vagina to ensure that it accommodates a penis. (18) Such dilation happens through the repeated insertion of medical equipment and is followed by constant monitoring and medical examination of the child's body. Additionally, a constructed vagina must be put through sensitivity tests to ensure its adequate functioning. (19) Esther Morris' words in The Missing Vagina Monologue capture this trauma persuasively: "After all that trouble I had gone through, I discovered that a penis would respond to anything. I felt abused in the most intangible way, a victim of other's [sic] arrogance and assumptions." (20) Morris was born without a vagina and underwent four surgeries in her adolescence to have a neovagina created, even though the end product would not enhance her own sexual pleasure. (21)

Such procedures highlight not just the insensitivities of the medical community, but also a failure on the part of the state to protect children by fulfilling its extant international obligations. In India, the Supreme Court has upheld the right to bodily integrity, (22) as well as the right to self-determination of gender identity. (23) Given these existing legal protections, we attempt to make a case for protecting intersex children in India from medically unnecessary procedures.

In Part I of this Article, we examine the ethical issues that arise from medically unnecessary interventions, analyzing such procedures through a classical bioethical framework. We also attempt to move beyond legal obligations to underscore the ethical imperative to respect the rights of intersex children. We conclude that such medical interventions violate several established principles that govern the medical community, including the principles of non-maleficence, beneficence, autonomy, and justice. (24) These principles, although followed with great zeal for other patients, appear to be relaxed when applied to intersex children, as discussed in Part 1. In such situations, the parental trauma and potential social ostracism that the child may face are considered to outweigh medical practitioners' ethical obligations toward the child. Consequently, such procedures are justified as being in the "best interests" of the child. (25) Beyond classical bioethics, we also scrutinize such procedures through the lens of post-structuralist feminist and queer bioethics, in a post-colonial context, to conclude that medically unnecessary surgeries are morally questionable.

Part II analyzes all the international instruments ratified by India that protect the rights of intersex children. In doing so we examine the Yogyakarta Principles and the Yogyakarta Principles Plus 10, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the United Nations Convention on the Rights of the Child. In the Indian context, the executive and judicial branches have domesticated international legal norms. For instance, in the Hazardous Waste (Management, Handling and Transboundary Movement) Rules, the executive incorporated international obligations under the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal. (26) Further, as early as 1984 the Supreme Court incorporated international obligations into domestic law, in cases such as Gramophone Company of India Ltd. v. Birendra Bahadur Pandey, (27) People's Union for Civil Liberties v. Union of India, (28) and Apparel Export Promotion Council v. A.K. Chopra, (29) As the Supreme Court most prominently held in Vishakha v. State of Rajasthan:

Any International Convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee.... The international conventions and norms are to be read into [fundamental rights] in the absence of enacted domestic law occupying the field when there is no inconsistency between them. (30) Given this tradition, it is imperative to thoroughly examine international treaties and instruments with the hope that they may play a significant role in filling the void in India's jurisprudence on intersex rights.

In Part III, we review India's jurisprudence on the right to self-identification of gender, examining the Supreme Court's decision in National Legal Services Authority v. Union of India (NALSA), and the provisions of the 2019 Transgender Act. We also probe deeper to examine the interpretation of NALSA by various high courts and analyze cases concerning intersex litigants in particular. We find that although a separate category of "third gender" has been legally recognized, this umbrella term leaves invisible numerous other genders and has been criticized by intersex communities for this reason. (31) Finally, we argue that children's consent has not been legally recognized because statutes such as the...

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