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 persons born or living with intersex traits can live with a non-binary identity or may choose to live as gender fluid persons. The Bill fails to account for these possibilities. Neither does it provide for the definition of terms such as gender identity, gender expression and sex characteristics.
The Bill doesn’t say much about discrimination against intersex persons. Intersex conditions are termed in derogatory terms even by medical professionals. To address this, the Bill should have included a provision directing medical professionals to ensure that intersex traits are not characterised as “disorders of sex development”. Intersex traits should not be considered as genetic defects/ disorders, and terms like ‘gender dysphoria’ should be used to characterise them.
Unnecessary medical procedures
As per court-based jurisprudence, medical procedures are not a necessity for self-identification. Still, the Union Health Ministry has admitted that medical procedure including sex reassignment surgeries are being performed on intersex children. The Ministry has given the justification that this is only done after a thorough assessment of the child, with the help of appropriate diagnostic tests and only after taking a written consent of the patient/guardian. When this response was presented before the Madras High Court in Arunkumar, the court slammed the Health Ministry for its poor understanding of consent rights and imposed a ban on the practice of sex reassignment surgeries on intersex infants/children. The Bill fails to protect intersex persons from unnecessary medical intervention.
World over, the discourse around gender and sexuality has evolved a great deal in the last decade. However, the current legislative discourse on this issue suffers from lack of foundational understanding. Intersex persons are particularly vulnerable and experience barriers in access to education, employment, marriage, etc. In its current form, the Bill turns back the clock on decades of positive change brought about by intersex activists.
Prashant Singh is an advocate at the Supreme Court of India