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Synopsis

The Kerala High Court on Monday held that the ‘right to choose gender’ is vested only with the individual concerned and the court cannot grant permission for conducting non-consensual sex affirmative surgery.

A bench of Justice VG Arun of the High Court said that “grant of permission for conducting genital reconstructive surgery…. without consent would violate the child's dignity and privacy.”

The parents of a seven years old child born with ambiguous genitalia approached the High Court seeking permission to conduct a genital reconstructive surgery for raising the child as a female. They apprised the High Court that the child is undergoing treatment and doctors are not prepared to conduct the surgery without orders from the competent court.

The high court noted that surgical interventions are unnecessary and may result in irreversible mutilation of children's bodies. It denied granting recognition to the right of the parents to decide the gender of their minor child, without the minor's consent and ignorant of the child's orientation.

The bench said that though parents have raised concern regarding the child's health, the medical records do not make out a case warranting immediate intervention. “No doubt, there can be such intervention, if so recommended by a duly constituted medical board,” it said. 

The High Court directed the state government to issue an order regulating sex selective surgeries on infants and children within three months. “Sex selective surgery shall be permitted only based on the opinion of the State Level Multidisciplinary Committee that the surgery is essential to save the life of the child/infant,” it said. 

In the case, advocate TP Sajid, appearing for the petitioners, submitted that the parents are best suited to decide the future of the child and delaying the decision will cause undue trauma to the child and hardship to the family.

On the other hand, Government Pleader PS Appu suggested the constitution of State Level Multidisciplinary Committees to take a studied and legally sound decision.

Advocate Indulekha Joseph was appointed as amicus curiae by the Court.

The High Court said that the terms 'gender’ and ‘sex' are often used interchangeably in casual conversation, but are actually two distinct concepts related to human identity and biology. 

“Sex refers to the biological characteristics of a person, particularly in relation to their reproductive anatomy and chromosomal composition. Gender, on the other hand, is a social and cultural construct that encompasses the roles, behaviours, expectations and identities associated with being male-female or non-binary,” it said in its judgment. 

The court referred to the United Nations Convention on the Rights of the Children calling upon the Member States to ensure non-discrimination against children because of intersex condition.

While female genital mutilation is an offence in the United Kingdom, countries like Austria, Denmark, Italy, Netherlands, Spain, Sweden etc have fixed 18 as the minimum age requirement for sex reassignment surgery, noted the High Court. 

“Croatia allows children to have sex reassignment surgery before the age of 18 if they have parental consent and Argentina's Senate has unanimously approved the Gender Identity law, making sex- change surgery a legal right,” it said. 

The High Court said that only few countries have come forward with a legislation either regulating or permitting genital reconstruction/affirmation surgery and even with respect to those countries, the age of consent varies.

“If democracy is based on recognition of the individuality and dignity of man, the right of a human being to choose his/her sex or gender identity, which is one of the most basic aspects of self- determination, dignity and freedom has to be recognised. Conversely, intervention with an individual's right to choose sex or identity will definitely be an intrusion into that person's privacy and an affront to his/her dignity and freedom,” the judgment read.

In a relief to parents, the High Court directed the State Level Multidisciplinary Committee to examine the child within two months and decide whether the child is facing any life threatening situation by reason of the ambiguous genitalia. If so, permission can be granted for carrying out the surgery, it added. 

Cause Title- XXX vs. The Health Secretary